Amendment and Waiver Letter to Credit Agreement among EMCOR Group, Inc. and Lenders (December 10, 2002)
Summary
This letter amends and waives certain provisions of the Credit Agreement dated September 26, 2002, between EMCOR Group, Inc., its subsidiaries, and a group of banks led by Harris Trust and Savings Bank. The amendment allows EMCOR to acquire Consolidated Engineering Services, Inc. and its subsidiaries, subject to specific conditions and adjustments to the credit terms. It also waives and modifies certain restrictions in the original agreement to facilitate the acquisition, provided the company meets specified financial requirements. All parties confirm their agreement by signing the letter.
EX-4.1.(B) 3 c27185_ex4-1b.txt AMENDMENT AND WAIVER LETTER EXHIBIT 4.1(b) December 10, 2002 Harris Trust and Savings Bank U.S. Bank National Association Chicago, Illinois Cincinnati, Ohio Fleet National Bank Union Bank of California, N.A. Stamford, Connecticut Los Angeles, California LaSalle Bank, N.A. National City Bank Chicago, Illinois Philadelphia, PA Bank One, Arizona, N.A. Webster Bank Phoenix, Arizona New Haven, Connecticut Sovereign Bank Boston, Massachusetts Ladies and Gentlemen: Reference is hereby made to that certain Credit Agreement dated as of September 26, 2002 (the "Credit Agreement") among the EMCOR Group, Inc. (the "Company"), a Delaware corporation, Comstock Canada Ltd., a Canadian corporation, and EMCOR Drake & Scull Group Ltd., a United Kingdom public limited liability company, you (the "Lenders") and Harris Trust and Savings Bank, as agent for the Lenders (the "Agent"). All capitalized terms used herein shall have the same meaning as in the Credit Agreement unless otherwise defined herein. As you are aware, the Company proposes to acquire (the "Acquisition") (a) from Archstone-Smith Operating Trust the indebtedness (the "Indebtedness") owed to it by Consolidated Engineering Services, Inc. ("CES") and all of its shares of CES capital stock and (b) from all the other stockholders of CES all their shares of CES capital stock for an aggregate purchase price of no more than $182,000,000 plus or minus an amount equal to a number determined by subtracting the consolidated net worth of CES as of the closing date from its consolidated net worth as of June 30, 2002 (collectively, the "Consideration"). If the difference is positive the purchase price will be decreased by that amount and if the difference is negative the purchase price will be increased by that amount. This is to confirm our agreement with respect to the Credit Agreement, as follows: 1. The Company consummate the Acquisition notwithstanding the provisions of Section 7.21 and Section 7.12 of the Credit Agreement; provided that it is hereby agreed that the $300,000,000 number referred to in clause (iv) of Section 7.12(j) is reduced by the Consideration; provided further that after giving effect to the Acquisition the Borrowers have Unused Commitments of not less than $55,000,000 and provided further that CES and each of its majority owned subsidiaries (collectively, the "Acquired Companies" and, individually, an "Acquired Company") shall constitute a Restricted Subsidiary and shall execute and deliver to the Agent the items required by Section 7.21 of the Credit Agreement. 2. The following provisions of the Credit Agreement are waived for the purposes indicated: (a) Section 7.10 is hereby waived to the extent required to permit the Acquired Companies to have outstanding indebtedness at the time each such Acquired Company becomes a Restricted Subsidiary, provided such indebtedness is not incurred in contemplation of such Acquired Companies being acquired by the Company, and the amount of such indebtedness shall be excluded from the dollar amount set forth in Section 7.10(K). (b) Section 7.12 is hereby waived to the extent required to permit each Acquired Company (i) to retain or have outstanding investments in, loans or advances to, any other Person, (ii) to be liable as endorser, guarantor, surety or otherwise for any debt, obligation or undertaking to any other Person, (iii) to provide funds for payment of the obligations of any other Person or to supply funds thereto or invest therein or otherwise assure a creditor of another against loss, (iv) to be liable to the issuer of a letter of credit which supports an obligation of any other Person, and (v) to subordinate any claim or claims it may have to the claim or demand of any other Person, provided in each such case such investment, loan or advance, endorsement, guarantee suretyship, other arrangement, agreement, liability, or subordination is outstanding at the time the Acquired Company becomes a Restricted Subsidiary and was not incurred in contemplation of such Acquired Company becoming a Restricted Subsidiary. 3. Section 7.12 of the Credit Agreement is hereby amended by striking the "; and" at the end of subsection (x) thereof and replacing it with ";", striking the "," at the end of subsection (y) thereof and replacing it with "; and", and adding thereto a new clause (z) as follows: "(z) investment in any securities or securities funds in an aggregate amount not in excess of (a) the amounts withheld from the compensation of employees of the Company or any subsidiary pursuant to any deferred compensation plan and (b) amounts representing appreciation under any such plan of such withheld amounts. 4. Section 9.1 of the Credit Agreement is hereby amended by amending the paragraph defining "Disposition" to read in its entirety as follows: "Disposition means the sale, lease, conveyance or other disposition of Property outside the normal course of business of the entity making such sale, lease, conveyance or disposition." Please sign and return a copy of this letter to confirm your agreement with the foregoing. Very truly yours, EMCOR Group, Inc. By ---------------------------- R. Kevin Matz Vice President and Treasurer The foregoing is hereby confirmed and agreed to: Harris Trust and Savings Bank U.S. Bank National Association By By ---------------------------- ---------------------------- Fleet National Bank Union Bank of California, N.A. By By ---------------------------- ---------------------------- LaSalle Bank, N.A. National City Bank By By ---------------------------- ---------------------------- Bank One, Arizona, N.A. Webster Bank By By ---------------------------- ---------------------------- Sovereign Bank By ----------------------------
