FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT
This First Amendment to Revolving Loan Agreement (this "First
Amendment") is made and entered into as of the 24th day of March, 1997, by and
among AMERICAN RESIDENTIAL SERVICES, INC., a Delaware corporation ("Borrower"),
NATIONSBANK OF TEXAS, N.A., as Agent and Issuing Lender under the hereinafter
defined Loan Agreement, and those Lenders under that Loan Agreement which have
executed and delivered this First Amendment.
W I T N E S S E T H
WHEREAS, pursuant to that certain Revolving Loan Agreement (the
"Loan Agreement") dated March 3, 1997, among Borrower, NationsBank of Texas,
N.A., as Agent and Issuing Lender, and the other entities designated therein as
Lenders, Lenders and Issuing Lender agreed to make loans and other extensions of
credit to Borrower upon the terms and conditions therein contained; and
WHEREAS, the parties hereto desire to modify and amend certain
terms and provisions of the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is modified and
amended as follows:
1.1 The definition of "Consolidated Funded Debt" in Article I of
the Loan Agreement is deleted in its entirety and the following is substituted
in place thereof:
"Consolidated Funded Debt" means, as of any date, all
interest-bearing Debt of Borrower and its Subsidiaries which is
evidenced by promissory notes, loan agreements, bonds or similar
instruments, as such amount is required to be shown on Borrower's
consolidated balance sheet as of that date prepared in accordance
with GAAP (including, without limitation, all Capitalized Lease
Obligations and all Approved Subordinated Debt, other than
Approved Convertible Subordinated Notes).
1.2 The following terms and the definitions assigned to such
terms are added to and made a part of Article I of the Loan Agreement:
"Approved Convertible Subordinated Notes" shall mean the
Convertible Subordinated Notes due on a stated maturity
date in April 2004, issued by Borrower pursuant to the
Convertible Subordinated Notes Indenture.
"Convertible Subordinated Notes Indenture" shall mean the
Indenture dated a date in March 1997, between Borrower and U.S.
Trust Company of Texas, N.A., as Indenture Trustee, pursuant to
which Borrower intends to issue convertible subordinated notes up
to an aggregate principal amount of $63,250,000.00, maturity in
2004, as amended, modified, or supplemented from time to time to
the extent permitted by this Agreement.
1.3 The following subsection is added to and made a part of
Section 6.1 of the Loan Agreement as subsection (h) thereof:
Promptly after its receipt thereof, copies of all notices and
other written communications received by Borrower under the
Convertible Subordinated Notes Indenture from any holder or owner
of an Approved Convertible Subordinated Note or from the Trustee
under that Indenture.
1.4 Section 7.1(d) of the Loan Agreement is deleted in its
entirety and the following is substituted in place thereof:
FUNDED DEBT TO EBITDA RATIO. Borrower shall not permit the Funded
Debt to EBITDA Ratio (a) at March 31, 1997 to be greater than
2.75 to 1.0 and (b) at the end of any other fiscal quarter of
Borrower, beginning with its fiscal quarter ended June 30, 1997,
to be greater than 2.25 to 1.0.
1.5 The following subsection is added to and made a part of
Article VII of the Loan Agreement as Section 7.14 thereof:
NO MODIFICATION OF APPROVED SUBORDINATED DEBT. Borrower shall
not, without the prior approval of the Required Lenders, (a)
modify the date or manner of payment of any Approved Subordinated
Debt, (b) increase the principal balance of any Approved
Subordinated Debt, or (c) modify any of the subordination
provisions in any note, indenture, or other agreement evidencing
or governing any Approved Subordinated Debt.
1.6 The following subsection is added to and made a part of
Section 8.1 of the Loan Agreement as subsection (l) thereof:
There shall occur a "Repurchase Event" under and as such term is
defined in the Convertible Subordinated Notes Indenture.
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2. MODIFICATION FEE. As independent consideration for entering into this
First Amendment, contemporaneously with the execution and delivery of this First
Amendment by the requisite parties hereto, Borrower shall pay to Agent a
modification fee equal to $15,000.00 for the pro rata account (based on their
respective Loan Percentages) of those Lenders which are signatories to this
First Amendment. Those Lenders which are signatories to this First Amendment
constitute not less than the Required Lenders for the purpose of modifying and
amending the Loan Agreement in accordance with the terms of this First
Amendment.
3. APPROVAL OF SUBORDINATED DEBT. The issuance of the indebtedness
evidenced by the Approved Convertible Subordinated Notes is approved, and when
issued, will constitute Approved Subordinated Debt under the Loan Agreement.
4. STATUS OF INDEBTEDNESS. Borrower acknowledges that the indebtedness
outstanding under the respective Notes on the date hereof is not subject to any
offsets, deductions, credits, charges, or claims of whatsoever kind or
character.
5. DEFINED TERMS. Words and terms used herein which are defined in the
Loan Agreement are used herein as defined therein, except as specifically
modified by the terms of this First Amendment.
6. REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by Borrower in Article V of the Loan Agreement are true and correct in all
material respects as of the date of this First Amendment, except for those
representations and warranties that are limited by the terms thereof to a
specific date.
7. MISCELLANEOUS.
7.1 PRESERVATION OF THE LOAN AGREEMENT. Except as specifically
amended and modified by the terms of this First Amendment, all of the terms,
provisions, covenants, warranties, and agreements contained in the Loan
Agreement and in the other Loan Documents shall remain in full force and effect.
7.2 COUNTERPARTS. This First Amendment may be executed in two or
more counterparts, and it shall not be necessary that any one of the
counterparts be executed by all of the parties hereto. Each fully or partially
executed counterpart shall be deemed an original, but all such counterparts
taken together shall constitute but one and the same instrument.
7.3 NO ORAL AGREEMENTS. THE LOAN AGREEMENT, AS AMENDED
BY THIS FIRST AMENDMENT, AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first above written.
BORROWER:
AMERICAN RESIDENTIAL SERVICES,
INC., a Delaware corporation
By:/S/XXXX X. HELD
Xxxx X. Held,
Senior Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A., a
national banking association, as
Agent for Lenders
By:/S/XXXXXX XXXXX
Xxxxxx Xxxxx
Vice President
ISSUING LENDER:
NATIONSBANK OF TEXAS, N.A.,
a national banking association
By:/S/XXXXXX XXXXX
Xxxxxx Xxxxx
Vice President
LENDERS:
NATIONSBANK OF TEXAS, N.A.,
a national banking association
By:/S/XXXXXX XXXXX
Xxxxxx Xxxxx,
Vice President
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NATIONAL CITY BANK OF KENTUCKY
By: /s/XXXXXX X. XXXXXX, XX.
Xxxxxx X. Xxxxxx, Xx.,
Vice President
BANQUE PARIBAS
By: /S/XXXXX XXXXXXX
Xxxxx Xxxxxxx,
Vice President
By: /s/XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: Vice President
THE FUJI BANK LIMITED, Houston Agency
By: /s/XXXXXX X. XXXXXXXX III
Xxxxxx X. Xxxxxxxx III
Vice President & Joint Manager
GUARANTY FEDERAL BANK, F.S.B.
By: /s/XXXX XXXXX
Xxxx Xxxxx,
Vice President
SUMITOMO BANK, LTD.
By: /s/XXXX X'XXXXX
Xxxx X'Xxxxx,
Vice President
By: /s/XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Vice President
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By their execution hereof, the undersigned Subsidiaries of Borrower, guarantors
of the Obligations, acknowledge and agree to this First Amendment:
A.K. LANDAN, INC., a California corporation
AMERICAN MECHANICAL SERVICES, INC., a
Delaware corporation
ANNANDALE & FAIRFAX AIR CONDITIONING
& HEATING, INC., a Virginia corporation
ARS ENERGY SERVICES COMPANY, a
Delaware corporation
ARS RESIDENTIAL HOLDING COMPANY, a
Delaware corporation
ARS RESIDENTIAL MANAGEMENT
COMPANY, a Delaware corporation
ARS RESIDENTIAL SERVICES, INC., a
Delaware corporation
ADCOT, INC. (d/b/a A-ABC Appliances, a
Texas corporation
ATLAS SERVICES, INC., a South Carolina
corporation
BULLSEYE AIR CONDITIONING, INC., a
Florida corporation
CLIMATIC CORPORATION OF VERO BEACH,
a Florida corporation
DOC PLUMBING, INC., a South Carolina
corporation
By:/s/Xxxx X. Held
Xxxx X. Held,
Vice President
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FLORIDA HEATING & AIR CONDITIONING,
INC., a Florida corporation
FLORIDA HEATING AND AIR DUCT, INC., a
Florida corporation
GENERAL HEATING & AIR CONDITIONING
COMPANY, INC., a Delaware corporation
GOLDEN TRIANGLE MECHANICAL, INC., a
South Carolina corporation
XXXXXXX PLUMBING COMPANY, INC., an
Indiana corporation
ILLINOIS HEATING & AIR CONDITIONING,
INC., an Illinois corporation
XXXXXX MECHANICAL SERVICES, INC., a
Virginia corporation
XXXXX HEATING & AIR, INC., a South Carolina
corporation
XXXXX ELECTRIC, INC., a Delaware
corporation
XXXXX XXXXXX & SONS, a Florida
corporation
MCCANNICS, INC., a Delaware corporation
MERIDIAN & HOOSIER HEATING AND AIR
CONDITIONING COMPANY, an Indiana
corporation
METRO HEATING AND AIR CONDITIONING,
a Delaware corporation
By:/s/XXXX X. HELD
Xxxx X. Held,
Vice President
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PRICEMASTERS HEATING & AIR
CONDITIONING CO., an Illinois corporation
R.F. MASTERS, INC., a South Carolina
corporation
ROOTER EXPRESS SERVICE, INC., a South
Carolina corporation
SAGAMORE HEATING & COOLING, INC., an
Indiana corporation
XXXXX AIR CONDITIONING, INC., a Delaware
corporation
SERVICE ENTERPRISE HOLDINGS, LLC, a
Texas limited liability company
SERVICE ENTERPRISES - HOUSTON, INC.
(d/b/a Crown Services), a Delaware
corporation
SOUTHCOAST HEATING AND AIR
CONDITIONING, INC., a California corporation
TED'S PLUMBING, INC., a Florida corporation
TRADEMARK ENTERPRISES, INC., a Delaware
corporation
USA HEATING & AIR CONDITIONING, INC., a
Delaware corporation
WEST HOUSTON SERVICES, INC., a Delaware
corporation
By:/s/XXXX X. HELD
Xxxx X. Held,
Vice President
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