Exhibit 10.27
WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
This Waiver and Amendment No. 3 to Credit Agreement, dated as of
March __, 2003 (this "Amendment"), is entered into by and between Comfort
Systems USA, Inc., a Delaware corporation ("Borrower"), the other Credit
Parties, General Electric Capital Corporation ("GE Capital"), as Agent (in such
capacity, "Agent") for the Lenders (as defined in the Credit Agreement referred
to below) and as a Lender, and the other Lenders party to the Credit Agreement.
RECITALS
WHEREAS, Borrower, the other Credit Parties, Agent and Lenders are
parties to that certain Credit Agreement, dated as of October 11, 2002 (as
amended by Amendment No. 1 to Credit Agreement, dated as of December 10, 2002,
and Amendment No. 2 to Credit Agreement, dated as of December 20, 2002, and as
the same may be further amended, restated, supplemented or otherwise amended
from time to time hereafter, the "Credit Agreement");
WHEREAS, Borrower has notified Agent and Lenders that an Event of
Default is currently in existence under the Credit Agreement based upon
Borrower's breach of the "Minimum EBITDA" financial covenant set forth in
Section 4.2 of the Credit Agreement for the period ended December 31, 2002 (the
"Existing Event of Default");
WHEREAS, Borrower has requested that Agent and Lenders waive the
Existing Event of Default and reset certain financial covenants set forth in
Section 4 of the Credit Agreement, and Agent and Lenders are willing to do so
pursuant to the terms and conditions set forth in this Amendment;
WHEREAS, Borrower, Credit Parties, Agent and Lenders are each
desirous of entering into an amendment to certain other provisions the Credit
Agreement, as and to the limited extent set forth in this Amendment and subject
to the terms and conditions set forth herein; and
WHEREAS, this document shall constitute a Loan Document and these
Recitals shall be construed as part of this Amendment;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, Borrower,
Credit Parties, Agent and Lenders each hereby agree as follows:
1. Definitions. Except to the extent otherwise specified herein,
capitalized terms used in this Amendment shall have the same meanings ascribed
to them in the Credit Agreement and Annex A thereto.
2. Waiver.
2.1. Existing Event of Default. Agent and Lenders hereby waive the
Existing Event of Default; provided, that, Borrower shall be in compliance with
all of the terms and conditions of the Credit Agreement as hereby amended. The
foregoing waiver is only applicable and shall only be effective in the specific
instance and for the specific purpose for which made. Such waiver is expressly
limited to the facts and circumstances referred to herein and shall not operate
(a) as a waiver of or consent to non-compliance with any other provision of the
Credit Agreement or any other Loan Document, (b) as a waiver of any other right,
power or remedy of Agent or Lenders under the Credit Agreement or any other Loan
Document or (c) as a waiver of or consent to any other Default or Event of
Default under the Credit Agreement or any other Loan Document.
3. Amendments. The Credit Agreement is amended as follows:
3.1. Annex A to the Credit Agreement is amended by deleting the
existing definitions of "Commitments" and "Revolving Loan Commitment" in their
entirety and replacing them with the following:
"Commitments" means (a) as to any Lender, the aggregate
of such Lender's Revolving Loan Commitment and Term Loan Commitments
set forth on Annex B to the Agreement or in the most recent
Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate of all Lenders' Revolving Loan Commitments
and Term Loan Commitments, which aggregate commitment shall be
Fifty-Five Million Dollars ($55,000,000) (comprised of aggregate
Revolving Loan Commitments of $40,000,000 and Term Loan Commitments
of $15,000,000), as such Commitments may be reduced, amortized or
adjusted from time to time in accordance with the Agreement.
"Revolving Loan Commitment" means (a) as to any Lender,
the commitment of such Lender to make its Pro Rata Share of
Revolving Credit Advances or incur its Pro Rata Share of Letter of
Credit Obligations (including, in the case of the Swing Line Lender,
its commitment to make Swing Line Advances as a portion of its
Revolving Loan Commitment) as set forth on Annex B or in the most
recent Assignment Agreement, if any, executed by such Lender and (b)
as to all Lenders, the aggregate commitment of all Lenders to make
the Revolving Credit Advances (including, in the case of the Swing
Line Lender, Swing Line Advances) or incur Letter of Credit
Obligations, which aggregate commitment shall be Forty Million
Dollars ($40,000,000), as such amount may be adjusted, if at all,
from time to time in accordance with the Agreement."
3.2. Annex A to the Credit Agreement is amended by inserting the
following definitions in alphabetical order therein:
"Emcor Sale" means that sale of certain assets of the
Borrower to Emcor prior to the Closing Date during Fiscal Year 2002.
3.3. Section 1.1(b) (Revolving Loans) is amended by inserting the
following proviso at the end of the second sentence thereof:
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"and provided, further, that, notwithstanding anything
contained in this Agreement or any other Loan Document to the
contrary, a portion of the Revolving Loan Commitment in the
principal amount of (i) at all times from the Closing Date through
July 31, 2003, $15,000,000 and (ii) at all times from August 1, 2003
through the Commitment Termination Date, $20,000,000 shall be
available only to be utilized, subject to the satisfaction of the
conditions set forth in this Agreement, upon the request of Borrower
for the issuance of Letters of Credit pursuant to Section 1.1(d)
hereof."
3.4. Section 3.6 (Restrictions on Fundamental Changes) to the Credit
Agreement is hereby amended by deleting the text immediately following the first
sentence thereof in its entirety, beginning with the words "Notwithstanding the
foregoing" through and including clause (xii) thereof (such that such Section
3.6 shall consist only of the first sentence thereof).
3.5. Section 4.2 (Minimum EBITDA) to the Credit Agreement is hereby
amended and restated in its entirety as follows:
"4.2 Minimum EBITDA. Borrower and its Subsidiaries on a
consolidated basis shall have, at the end of each month set forth
below, EBITDA for the 12-month period then ended of not less than
the following:
Period EBITDA
------ ------
December 31, 2002 $ 23,639,000
January 31, 2003 $ 21,983,000
February 28, 2003 $ 22,745,000
March 31, 2003 $ 19,190,000
April 30, 2003 $ 18,010,000
May 31, 2003 $ 16,985,000
June 30, 2003 $ 16,420,000
July 31, 2003 $ 16,420,000
August 30, 2003 $ 16,420,000
September 30, 2003 $ 17,840,000
October 31, 2003 $ 17,840,000
November 30, 2003 $ 17,840,000
December 31, 2003 $ 23,565,000
January 31, 2004 $ 25,640,000
February 29, 2004 $ 26,820,000
March 31, 2004 $ 29,000,000
April 30, 2004 $ 29,000,000
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May 31, 2004 $ 29,000,000
June 30, 2004 $ 29,000,000
July 31, 2004 $ 29,000,000
August 30, 2004 $ 29,000,000
September 30, 2004 $ 29,000,000
October 31, 2004 $ 29,000,000
November 30, 2004 $ 29,000,000
December 31, 2004 $ 29,000,000
January 31, 2005 $ 29,000,000
February 28, 2005 $ 29,000,000
March 31, 2005 and each month thereafter $ 31,000,000"
3.6. Section 4.3 (Minimum Fixed Charge Coverage Ratio) to the Credit
Agreement is hereby amended and restated in its entirety as follows:
"4.3 Minimum Fixed Charge Coverage Ratio. Borrower and
its Subsidiaries shall have on a consolidated basis at the end of
each month set forth below, a Fixed Charge Coverage Ratio for the
12-month period then ended of not less than the following:
2.3 to 1.0 for the month ending December 31, 2002;
2.3 to 1.0 for the month ending January 31, 2003;
2.3 to 1.0 for the month ending February 28, 2003;
2.5 to 1.0 for the month ending March 31, 2003;
2.5 to 1.0 for the month ending April 30, 2003;
2.5 to 1.0 for the month ending May 31, 2003;
2.5 to 1.0 for the month ending June 30, 2003;
2.5 to 1.0 for the month ending July 31, 2003;
2.5 to 1.0 for the month ending August 31, 2003;
2.6 to 1.0 for the month ending September 30, 2003;
2.6 to 1.0 for the month ending October 31, 2003;
2.6 to 1.0 for the month ending November 30, 2003;
2.7 to 1.0 for the month ending December 31, 2003; and
3.0 to 1.0 for each month ending thereafter."
3.7. Section 4.4 (Minimum Interest Coverage Ratio) to the Credit
Agreement is herby amended and restated in its entirety as follows:
"4.4 Minimum Interest Coverage Ratio. Borrower and its
Subsidiaries on a consolidated basis shall have at the end of each
and every month, an Interest Coverage Ratio for the 12-month period
then ended of not less than 3.00 to 1.0."
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3.8. Section 4.5 (Maximum Leverage Ratio) to the Credit Agreement is
hereby amended and restated in its entirety as follows:
"4.5 Maximum Leverage Ratio. Borrower and its
Subsidiaries on a consolidated basis shall have, at the end of each
month set forth below, a Leverage Ratio as of the last day of such
month and for the 12-month period then ended of not more than the
following:
1.75 to 1.0 for the month ending December 31, 2002;
1.75 to 1.0 for the month ending January 31, 2003;
1.75 to 1.0 for the month ending February 28, 2003;
1.75 to 1.0 for the month ending March 31, 2003;
2.20 to 1.0 for the month ending April 30, 2003;
2.20 to 1.0 for the month ending May 31, 2003;
2.20 to 1.0 for the month ending June 30, 2003;
2.20 to 1.0 for the month ending July 31, 2003;
2.20 to 1.0 for the month ending August 31, 2003;
2.10 to 1.0 for the month ending September 30, 2003;
2.10 to 1.0 for the month ending October 31, 2003;
2.10 to 1.0 for the month ending November 30, 2003;
1.50 to 1.0 for the month ending December 31, 2003;
1.50 to 1.0 for the month ending January 31, 2004;
1.50 to 1.0 for the month ending February 28, 2004;
1.50 to 1.0 for the month ending March 31, 2004;
1.50 to 1.0 for the month ending April 30, 2004;
1.50 to 1.0 for the month ending May 31, 2004;
1.50 to 1.0 for the month ending June 30, 2004;
1.50 to 1.0 for the month ending July 31, 2004;
1.50 to 1.0 for the month ending August 31, 2004;
1.25 to 1.0 for the month ending September 30, 2004; and
1.25 to 1.0 for each month ending thereafter."
3.9. Section 4.6(1) (Compliance and Excess Cash Flow Certificate) to
the Credit Agreement is hereby amended by deleting the parenthetical "(but only
to the extent delivered at the end of a month that is also the end of a Fiscal
Quarter or Fiscal Year)" in its entirety.
3.10. Schedule 2 to Exhibit 4.6(l) (Excess Cash Flow) to the Credit
Agreement is hereby amended by: (a) adding the following to "decreases in
Working Capital during the Fiscal Year*" (an item under the heading "Plus:"):
", excluding decreases in Working Capital related solely to the
treatment of the Emcor Sale and discontinued operations";
and
(b) adding the following parenthetical following the words "Funded
Debt" in the third item under the heading "Less:"
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"(excluding payments paid in 2002 prior to the Closing Date in
respect of Funded Debt in connection with the Emcor Sale)"
3.11. Annex B to the Credit Agreement (Pro Rata Shares and
Commitment Amounts) is hereby amended by deleting existing Annex B in its
entirety and replacing it with new Annex B which is attached hereto as Exhibit
A.
4. Representations and Warranties of Borrower and Credit Parties.
Borrower and each Credit Party hereby represents and warrants that:
4.1 The execution, delivery and performance by it of this Amendment
has been duly authorized by all necessary corporate action, including, without
limitation, all necessary action by its Board of Directors and stockholders, and
that this Amendment is a legal, valid and binding obligation of it, enforceable
against it in accordance with its terms, except as the enforcement hereof may be
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally or to general
principles of equity.
4.2 The execution, delivery and performance of this Amendment by
Borrower does not, and will not, contravene or conflict with any provision of
(i) law, (ii) any judgment, decree or order, or (iii) the certificate or
articles of incorporation or by-laws of such Credit Party, and does not, and
will not, contravene or conflict with, or cause any Lien to arise under, any
provision of any agreement, mortgage, lease, instrument or other document
binding upon or otherwise affecting Borrower, any other Credit Party or any of
their respective Subsidiaries or any property of Borrower, any other Credit
Party or any of their respective Subsidiaries.
4.3 All of the representations and warranties contained in the
Credit Agreement and each other Loan Document are true and correct in all
material respects on and as of the date hereof as if made on the date hereof. No
Default or Event of Default exists under the Credit Agreement or any other Loan
Document or will exist after or be triggered by the execution and delivery of
this Amendment or the consummation of the transactions contemplated hereby. In
addition, each Credit Party represents and warrants that the Credit Agreement
and each of the other Loan Documents remains in full force and effect and each
is hereby ratified and confirmed in all respects.
5. Conditions Precedent to Effectiveness. The effectiveness of each
of the waiver set forth in Section 2 and the amendments set forth in Section 3
hereof is subject to the satisfaction of each of the following conditions
precedent in a manner acceptable to Agent:
5.1. Documentation. Borrower shall have delivered to Agent all of
the following, each duly executed and dated the date hereof, in form and
substance satisfactory to the Agent:
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(a) Amendment. Counterparts of this Amendment, duly executed by the
Borrower, each of the other Credit Parties, Agent and all of
the Lenders;
(b) New Notes. (i) A replacement Revolving Note of Borrower in
favor of GE Capital (the "GE Capital Replacement Revolving
Note"), substantially in the form set forth as Exhibit B
hereto, delivered to the Agent for the Account of GE Capital,
as a Lender, in an amount equal to its Revolving Loan
Commitment of $29,333,333, (ii) a replacement Revolving Note of
Borrower in favor of Bank of Texas (the "Bank of Texas
Replacement Revolving Note"), substantially in the form set
forth as Exhibit B hereto, delivered to the Agent for the
account of Bank of Texas, as a Lender, in an amount equal to
its Revolving Loan Commitment of $5,333,333, (iii) a
replacement Revolving Note of Borrower in favor of Regions Bank
(the "Regions Bank Replacement Revolving Note" and together
with the GE Capital Replacement Revolving Note and the Bank of
Texas Replacement Revolving Note, the "New Notes"),
substantially in the form set forth as Exhibit B hereto,
delivered to the Agent for the account of Regions Bank, as a
Lender, in an amount equal to its Revolving Loan Commitment of
$5,333,333. Upon receipt of the GE Capital Replacement
Revolving Note, GE Capital shall promptly thereafter return to
Borrower for cancellation the original Revolving Note payable
to GE Capital in the maximum principal amount of $44,000,000.
Upon receipt of the Bank of Texas Replacement Revolving Note,
the Bank of Texas shall promptly thereafter return to Borrower
for cancellation the original Revolving Note payable to Bank of
Texas in the principal amount of $8,000,000. Upon receipt of
the Regions Bank Replacement Revolving Note, Regions Bank shall
promptly thereafter return to Borrower for cancellation the
original Revolving Note payable to Regions Bank in the
principal amount of $8,000,000; and
(c) Board Resolutions. Agent shall have received resolutions of the
board of directors of Borrower and each Credit Party
authorizing and approving the execution, delivery and
performance of this Amendment and the transactions contemplated
hereby and each other agreement, document or instrument
executed in connection herewith, certified as of the date of
this Amendment by the secretary or assistant secretary of such
Person as being in full force and effect without modification.
5.2. No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing or would result from the effectiveness of
this Amendment or the consummation of any of the transactions contemplated
thereby.
5.3. Amendment Fee. Borrower shall pay to Agent, for the account of
the Lenders, an amendment fee in an amount equal to $562,500, to be distributed
pro rata to all Lenders based on each Lender's Commitments immediately prior to
the effectiveness of this Amendment.
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6. Reference to and Effect Upon the Credit Agreement and other Loan
Agreements.
6.1. Except as specifically amended in Section 3 above, the Credit
Agreement and each other Loan Document shall remain in full force and effect and
is hereby ratified and confirmed.
6.2. The execution, delivery and effect of this Amendment shall be
limited precisely as written and shall not be deemed to (i) be a consent to any
waiver of any term or condition, or to any amendment or modification of any term
or condition (except as specifically waived in Section 2 above or amended in
Section 3 above), of the Credit Agreement or any other Loan Document or (ii)
prejudice any right, power or remedy which the Agent or any Lender now has or
may have in the future under or in connection with the Credit Agreement or any
other Loan Document. Each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or any other word or words of similar import
shall mean and be a reference to the Credit Agreement as amended hereby, and
each reference in any other Loan Document to the Credit Agreement or any word or
words of similar import shall be and mean a reference to the Credit Agreement as
amended hereby.
7. Acknowledgment and Consent of Credit Parties. Each Credit Party
hereby consents to this Amendment and hereby confirms and agrees that (a) the
Guaranty and each other Loan Document to which it is a party is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, and (b) the Collateral Documents to which such Credit Party is a
party and all of the Collateral described therein do, and shall continue to,
secure the payment of all of the Obligations.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be as effective as delivery of a manually executed counterpart signature page to
this Amendment.
9. Costs and Expenses. As provided in Section 1.3 of the Credit
Agreement, Borrower shall pay the fees, costs and expenses incurred by Agent in
connection with the preparation, execution and delivery of this Amendment
(including, without limitation, reasonable attorneys' fees).
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAW PROVISIONS) OF THE STATE OF
NEW YORK.
11. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
[Signature Pages Follow]
8
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWER:
COMFORT SYSTEMS USA, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
9
CREDIT PARTIES:
ACI MECHANICAL, INC.
ARC COMFORT SYSTEMS USA, INC.
ACCURATE AIR SYSTEMS, L.P., by
Atlas-Accurate Holdings, L.L.C.,
as General Partner
ACCU-TEMP GP, INC.
ACCU-TEMP LP, INC.
ACCU-TEMP LLC,
by Accu-Temp GP, Inc., as acting member
AIR SOLUTIONS USA, INC.
AIR TEMP, INC.
ATLAS-ACCURATE HOLDINGS, L.L.C.,
by XX00 Xxxxxxxxxxx Corp.,
as acting member
ATLAS AIR CONDITIONING
COMPANY, L.P., by Atlas-Accurate
Holdings, L.L.C., as general partner
XXXXXXXXX'X MECHANICAL CONTRACTORS, INC.
BCM CONTROLS CORPORATION
CARSON BROTHERS, INC.
CEL, INC.
CENTRAL MECHANICAL, INC.
COMFORT SYSTEMS USA (ARKANSAS), INC.
COMFORT SYSTEMS USA (BALTIMORE), INC.
10
COMFORT SYSTEMS USA (BOWLING GREEN), INC.
COMFORT SYSTEMS USA (BRISTOL), INC.
COMFORT SYSTEMS USA (CLEVELAND), INC.
COMFORT SYSTEMS USA (FLORIDA), INC.
COMFORT SYSTEMS USA G.P., INC.
COMFORT SYSTEMS US (HARTFORD), INC.
COMFORT SYSTEMS USA (INTERMOUNTAIN), INC.
COMFORT SYSTEMS USA NATIONAL SERVICE ORGANIZATION, INC.
COMFORT SYSTEMS USA (OREGON), INC.
COMFORT SYSTEMS USA (SOUTH BOSTON), INC.
COMFORT SYSTEMS USA (SYRACUSE), INC.
COMFORT SYSTEMS USA (TEXAS), L.P.,
by Comfort Systems USA G.P., Inc.,
as general partner
COMFORT SYSTEMS USA (TWIN CITIES), INC.
COMFORT SYSTEMS USA (WESTERN MICHIGAN), INC.
CS44 ACQUISITION CORP.
XX00 XXXXXXXXXXX CORP.
DESIGN MECHANICAL INCORPORATED
11
EASTERN HEATING & COOLING, INC.
ESS ENGINEERING, INC.
GULFSIDE MECHANICAL, INC.
H & M MECHANICAL, INC.
HELM CORPORATION
HELM CORPORATION SAN XXXXX
XXXX MECHANICAL CORPORATION
INDUSTRIAL COOLING INC.
J & J MECHANICAL, INC.
XXXXX AIR CONDITIONING ENTERPRISE INC.
XXXXXX HEATING, INC.
MECHANICAL SERVICE GROUP, INC.
MECHANICAL TECHNICAL
SERVICES, L.P., by Atlas-Accurate
Holdings, L.L.C., as general partner
MJ MECHANICAL SERVICES, INC.
XXXX MECHANICAL CONTRACTORS, INC.
NORTH AMERICAN MECHANICAL, INC.
OK SHEET METAL AND AIR CONDITIONING, INC.
QUALITY AIR HEATING & COOLING, INC.
S&K AIR CONDITIONING CO., INC.
S. I. XXXXXXX COMPANY, INC.
12
X.X. XXXXXXXX COMPANY, INC.
SA ASSOCIATES, INC.
SALMON & ALDER, LLC,
by SA Associates, Inc., as acting member
SEASONAIR, INC.
XXXXXX PLUMBING & HEATING, INC.
STANDARD HEATING & AIR CONDITIONING COMPANY
SUPERIOR MECHANICAL SYSTEMS, INC.
TARGET CONSTRUCTION, INC.
TEMP-RIGHT SERVICE, INC.
THE CAPITAL REFRIGERATION COMPANY
TRI-CITY MECHANICAL, INC.
UNITED ENVIRONMENTAL
SERVICES, L.P., by Atlas-Accurate Holdings,
L.L.C., as general partner
WEATHER ENGINEERING, INC.
WESTERN BUILDING SERVICES, INC.
By:
-----------------------------------------------
Name:
-----------------------------------------------
Title:
-----------------------------------------------
13
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By:
--------------------------------
Its Duly Authorized Signatory
14
BANK OF TEXAS, NA, as a Lender
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
15
REGIONS BANK, as a Lender
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
16
EXHIBIT A
TO AMENDMENT NO. 3
ANNEX B (FROM ANNEX A - COMMITMENTS DEFINITION)
to
CREDIT AGREEMENT
PRO RATA SHARES AND COMMITMENT AMOUNTS
Commitment Lender
---------- ------
Revolving Loan Commitment
(including a Swing Line Commitment GENERAL ELECTRIC CAPITAL
of $5,000,000) CORPORATION
$29,333,333
Revolving Loan Commitment
$5,333,333 BANK OF TEXAS, NA
Revolving Loan Commitment
$5,333,333 REGIONS BANK
Term Loan Commitment: GENERAL ELECTRIC CAPITAL
$11,000,000 CORPORATION
Term Loan Commitment: BANK OF TEXAS, NA
$2,000,000
Term Loan Commitment: REGIONS BANK
$2,000,000
17
EXHIBIT B
TO AMENDMENT XX. 0
XXXXXXXXX XXXX
Xxx Xxxx, Xxx Xxxx
$ ,000,000 March , 2003
--- --
FOR VALUE RECEIVED, the undersigned, COMFORT SYSTEMS USA, INC.
("Borrower"), HEREBY PROMISES TO PAY to the order of ______________ ("Lender"),
at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation,
as Agent for Lenders ("Agent"), at its address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 or at such other place as Agent may designate from time to time
in writing, in lawful money of the United States of America and in immediately
available funds, the amount of ____________ Million Dollars ($___,000,000) or,
if less, the aggregate unpaid amount of all Revolving Credit Advances made to
the undersigned under the "Credit Agreement" (as hereinafter defined). All
capitalized terms used but not otherwise defined herein have the meanings given
to them in the Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to
that certain Credit Agreement dated as of October 11, 2002 by and among the
Borrower, the other Persons named therein as Credit Parties, Agent, Lender and
the other Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits and schedules thereto, and as amended by Amendment No. 1 to
Credit Agreement, dated as of December 10, 2002, Amendment No. 2 to Credit
Agreement, dated as of December 20, 2002, and Waiver and Amendment No. 3 to
Credit Agreement dated as of the date hereof, and as the same may be further
amended, restated, supplemented or otherwise amended from time to time, the
"Credit Agreement"), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents referred
to therein. Reference is hereby made to the Credit Agreement for a statement of
all of the terms and conditions under which the Loans evidenced hereby are made
and are to be repaid. The date and amount of each Revolving Credit Advance made
by Lenders to Borrower, the rates of interest applicable thereto and each
payment made on account of the principal thereof, shall be recorded by Agent on
its books; provided that the failure of Agent to make any such recordation shall
not affect the obligations of Borrower to make a payment when due of any amount
owing under the Credit Agreement or this Note in respect of the Revolving Credit
Advances made by Lender to Borrower.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
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Upon and after the occurrence of any Event of Default, this
Revolving Note may, as provided in the Credit Agreement, be declared, and
immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may
not be assigned by Lender to any Person.
[signature page follows]
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THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE.
COMFORT SYSTEMS USA, INC.
By:
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
