EXHIBIT 10.11
AMENDMENT AGREEMENT NO. 3
TO AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 3 TO AMENDED AND RESTATED REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT (this "Amendment Agreement") is made and entered
into as of this 30th day of December, 1999, by and among WATSCO, INC., a Florida
corporation (the "Borrower"), the Lenders signatory hereto (the "Lenders") and
BANK OF AMERICA, N.A. (f/k/a NationsBank, National Association), a national
banking association, as Agent (the "Agent") for the Lenders party to the Credit
Agreement described below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into an
Amended and Restated Revolving Credit Agreement dated August 8, 1997, as amended
by Amendment Agreement No. 1 dated February 20, 1998 and Amendment Agreement No.
2 dated June 30, 1999 (the "Credit Agreement") pursuant to which the Lenders
have agreed to make available to the Borrower a revolving credit facility of up
to $315,000,000; and
WHEREAS, as a condition to the making of loans the Lenders have
required that each Subsidiary of Borrower execute a Facility Guaranty whereby it
guarantees payment of the Obligations arising under the Credit Agreement; and
WHEREAS, the Borrower has requested that the Lenders further amend the
Agreement as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. DEFINITIONS. The term "Credit Agreement" as used herein and in the
Loan Documents shall mean that certain Amended and Restated Revolving Credit and
Reimbursement Agreement dated as of August 8, 1997 by and among the Agent, the
Lenders and the Borrower, as heretofore and hereby amended and as from time to
time further amended or modified. Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the respective
meanings provided therefor in the Credit Agreement.
2. AMENDMENTS. Subject to the conditions set forth herein, SECTION 8.17
of the Credit Agreement shall be and hereby is amended in its entirety,
effective as of the date hereof, so that it shall read as follows:
"8.17. NEGATIVE PLEDGE CLAUSES. Other than pursuant to this Agreement
and the other Loan Documents and with respect to Private Placement Debt
enter into or cause,
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suffer or permit to exist any agreement with any Person which prohibits
or limits the ability of any of the Borrower or any Subsidiary to
create, incur, assume or suffer to exist any Lien upon any of its
property."
3. GUARANTORS. Each of the Guarantors has joined into the execution of
this Agreement for the purpose of consenting to the amendment contained herein
and reaffirming its guaranty of the Obligations as increased by the terms of
this Amendment Agreement.
4. BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents, warrants and certifies that:
(a) The representations and warranties made by it in Article
VI of the Credit Agreement are true on and as of the date hereof before
and after giving effect to this Agreement except that the financial
statements referred to in Section 6.6(a) shall be those most recently
furnished to each Lender pursuant to Section 7.1(a) and (b) of the
Credit Agreement and except that SCHEDULE 6.10 is replaced with
SCHEDULE 6.10 attached hereto;
(b) The Borrower has the power and authority to execute and
perform this Agreement and has taken all action required for the lawful
execution, delivery and performance thereof.
(c) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the Borrower
received by each Lender under Section 7.1 of the Credit Agreement,
other than changes in the ordinary course of business, none of which
has been a material adverse change;
(d) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
report of the Borrower and its Subsidiaries received by the Agent under
Section 7.1 of the Credit Agreement have not been, adversely affected
in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workmen, flood,
embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any major contracts; and
(e) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a
Default or an Event of Default on the part of the Borrower under the
Credit Agreement or the Notes either immediately or with the lapse of
time or the giving of notice, or both.
5. CONDITIONS TO EFFECTIVENESS. This Amendment Agreement shall become
effective upon receipt by the Agent twelve (12) counterparts of this Amendment
Agreement executed by Borrower, the Guarantors and the Required Lenders.
6. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
and agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior
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negotiations and agreements among the parties relative to such subject matter.
None of the terms or conditions of this Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any proceeding or succeeding breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
WATSCO, INC.
WITNESS:
/S/ XXXXXX XXXXX By: /S/ XXXXX X. XXXXX
--------------------------- --------------------------------
Name: Xxxxx X. Xxxxx
/S/ XXXXX X. XXXXXX Title: Vice President of Finance and
--------------------------- Chief Financial Officer
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GUARANTORS:
WATSCO INVESTMENTS I, INC.
WATSCO INVESTMENTS II, INC.
CDS HOLDINGS, INC.
COASTLINE DISTRIBUTION, INC.
A&C DISTRIBUTORS, INC.
GEMAIRE DISTRIBUTORS, INC.
X.X. XXXXX DISTRIBUTORS, INC.
GEM CREDIT CORPORATION
THE FLORIDA AD COMPANY
GEMAIRE INTERNATIONAL, INC.
GEMAIRE HOLDINGS, INC.
GEMAIRE CARIBE, INC.
COMFORT SUPPLY, INC.
WATSCO EXPORT, INC.
THE HOUSTON AD COMPANY, INC.
HEATING & COOLING SUPPLY, INC.
THREE STATES SUPPLY COMPANY, INC.
CP DISTRIBUTORS, INC.
COMFORT PRODUCTS DISTRIBUTING, INC.
CENTRAL PLAINS DISTRIBUTING, INC.
CENTRAL AIR CONDITIONING
DISTRIBUTORS, INC.
WEATHERTROL SUPPLY COMPANY
AIR SYSTEMS DISTRIBUTORS, INC.
DUNHILL STAFFING SYSTEMS, INC.
DUNHILL TEMPORARY SYSTEMS OF
INDIANAPOLIS, INC.
DUNHILL TEMPORARY SYSTEM OF
INDIANAPOLIS, L.P.
DUNHILL TEMPORARY SYSTEMS, INC.
WITNESS: DUNHILL PERSONNEL SYSTEM OF
NEW JERSEY, INC.
/S/ XXXXXX XXXXX DUNHILL STAFFING SYSTEMS OF
--------------------------- MILWAUKEE, INC.
/S/ XXXXX X. XXXXXX DUNHILL ENTERPRISES, INC.
---------------------------
By: /S/ XXXXX X. XXXXX
----------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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XXXXX DISTRIBUTING COMPANY
INTERCOMPANY SERVICES INCORPORATED
AIR SUPPLY, INC.
WSO DISTRIBUTORS LLC
WSO HOLDINGS LLC
DUNHILL HOLDINGS LLC
XXXXXXX COMPANY
A C EQUIPMENT & PARTS, INC.
SUPERIOR SUPPLY COMPANY, INC.
SUPERIOR SUPPLY COMPANY OF
OKLAHOMA, INC.
XXXXXXX SUPPLY, INC.
YRK HOLDINGS, INC.
HOMANS ASSOCIATES, INC.
HEAT INCORPORATED
COMFORT-AIRE DISTRIBUTORS
WITNESS: NSI SUPPLY, INC.
XXXXXXX XXXXXXXX COMPANY, INC.
/S/ XXXXXX XXXXX
---------------------------
/S/ XXXXX X. XXXXXX
---------------------------
By: /S/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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AGENT:
BANK OF AMERCA, N.A., as Agent for
the Lenders
By: /S/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
LENDERS:
BANK OFAMERICA, N.A.
By: /S/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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FIRST UNION NATIONAL BANK
By: /S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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SUNTRUST BANK, MIAMI, N.A.
By: /S/ XXXXX XXXX
---------------------------------
Name: Xxxxx Xxxx
Title: Vice President
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XXX XXXX XX XXX XXXX
By: /S/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /S/ XXXXXX XXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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COMERICA BANK
By: /S/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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WACHOVIA BANK, N.A.
By: /S/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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DRESDNER BANK LATEINAMERIKA AG
(unsigned)
By:_________________________________
Name: ______________________________
Title: _____________________________
00
XX XXXX XXXXXXXX XXXXXXXXXXXXXXXXXXX
XX, XXXXXX XXXXXXX BRANCH
By: /S/ XXXX X .XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /S/ X.X. XXXXXX
---------------------------------
Name: X.X. Xxxxxx
Title: Senior Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
(unsigned)
By:_________________________________
Name: ______________________________
Title: _____________________________
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THE NORTHERN TRUST COMPANY
By: /S/ RAHEELY XXXX XXXXX
---------------------------------
Name: Raheely Xxxx Xxxxx
Title: Vice President
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ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
WATSCO, INC.
STATE OF NORTH CAROLINA
COUNTY OF FORSYTH
Before me, the undersigned, a Notary Public in and for said County and
State on this 28th day of January, 2000 A.D., personally appeared Xxxxx X.
Xxxxx, known to be the Vice President of Finance and Chief Financial Officer of
Watsco, Inc. (the "Borrower"), who, being by me duly sworn, says he works at
0000 X. Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 and that by authority duly
given by, and as the act of, the Borrower, Amendment Agreement No. 3 to Amended
and Restated Revolving Credit and Reimbursement Agreement dated as of December
30, 1999 was signed by him as said Vice President of Finance and Chief Financial
Officer on behalf of the Borrower.
Witness my hand and official seal this 28th day of January, 2000.
/S/ XXXXX X. XXXXX-XXXXX
---------------------------------
Notary Public
(SEAL)
My commission expires: 8/18/2001
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