EXHIBIT 10.12
AMENDMENT AGREEMENT NO. 4
TO AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 4 TO AMENDED AND RESTATED REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT (this "Amendment Agreement") is made and entered
into as of this 14th day of March, 2000, 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, Amendment Agreement No. 2
dated June 30, 1999 and Amendment Agreement No. 3 dated December 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, the Credit
Agreement shall be and hereby is amended, effective as of the date hereof, as
follows:
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(a) SECTION 8.3 is hereby amended by deleting the figure
"$10,000,000" appearing therein and inserting in lieu thereof the
figure "$20,000,000".
(b) Clause (g) of SECTION 8.5 is hereby amended by (i)
deleting the figure "$10,000,000" appearing therein and inserting in
lieu thereof the figure "$20,000,000" and (ii) deleting the phrase "$10
million" appearing twice therein and inserting in lieu thereof the
phrase "$20 million".
(c) Clause (f) of SECTION 8.7 is hereby further amended by
deleting the figure "$20,000,000" appearing therein and inserting in
lieu thereof the figure "$40,000,000".
(d) SECTION 8.9 is hereby amended by (i) amending and
restating clause (i) in its entirety so that it shall read as follows:
"(i) cash dividends and other cash distributions in respect of
the capital stock of the Borrower and the redemption,
repurchase or other acquisition of the capital stock of the
Borrower in an aggregate amount not to exceed at any time the
sum of $35,000,000 plus 50% of cumulative Consolidated Net
Income for each fiscal quarter period for each Fiscal Year
ending on and after December 31, 1999 (less 100% in the case
of a deficit);"
(ii) deleting clause (iv) in its entirety and (iii) renumbering clauses
(v), (vi) and (vii) as clauses (iv), (v) and (vi), respectively.
3. GUARANTORS. Each of the Guarantors has joined in the execution of
this Agreement for the purpose of consenting to the amendment contained herein
and reaffirming its guaranty of the Obligations.
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.
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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 workers, 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 of twelve (12) counterparts of this
Amendment Agreement executed by Borrower, the Guarantors, the Agent 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 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.
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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/ XXXXXXXX X. XXXXXX By: /S/ XXXXX X. XXXXX
--------------------------- ---------------------------------
Name: Xxxxx X. Xxxxx
/S/ XXX X. XXXXXXXX Title: Vice President of Finance
---------------------------
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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/ XXX X. XXXXXXXX DUNHILL STAFFING SYSTEMS OF
--------------------------- MILWAUKEE, INC.
/S/ XXXXXXXX X. XXXXXX DUNHILL ENTERPRISES, INC.
---------------------------
By: /S/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President of Finance
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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
NSI SUPPLY, INC.
XXXXXXX XXXXXXXX COMPANY, INC.
AC WHOLESALERS, INC.
AMBIENT, INC.
WITNESS: COOLNET, INC.
/S/ XXXXXXXX X. XXXXXX
---------------------------
/S/ XXX X. XXXXXXXX
---------------------------
By: /S/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Vice President of Finance
------------------------------
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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 OF AMERICA, 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:
---------------------------------
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
By: /S/ XXXXX XXXXXXXXX /S/ XXXXXXXX XXXXXXXXX
-----------------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxx
---------------------------------------------
Title: Vice President Asst. Vice President
--------------------------------------------
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XX XXXX XXXXXXXX XXXXXXXXXXXXXXXXXXX
XX, XXXXXX XXXXXXX BRANCH
By: /S/ X.X. XXXXXX
---------------------------------
Name: X.X. Xxxxxx
Title: Senior Vice President
By: /S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /S/ MINAMI MIURA
---------------------------------
Name: Minami Miura
Title: Vice President
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THE NORTHERN TRUST COMPANY
By: (unsigned)
---------------------------------
Name: Xxxxxxx Xxxx Anwar
Title: Vice President
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