Exhibit 4
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Harris Trust and Savings Bank Union Bank of California, N.A.
Chicago, Illinois San Francisco, California
LaSalle National Bank Bank One, Arizona, N.A.
Chicago, Illinois Phoenix, Arizona
First Union National Bank BankBoston, N.A.
Philadelphia, Pennsylvania Stamford, Connecticut
Ladies and Gentlemen:
Reference is hereby made to that certain Amendment and Restatement of
Credit Agreement dated as of December 22, 1998, as amended (such Credit
Agreement as heretofore amended being referred to herein as the "Credit
Agreement") among the undersigned, EMCOR Group, Inc., a Delaware corporation,
Comstock Canada Ltd., A Canadian corporation, and Drake & Scull Group Ltd.
(formerly named Drake & Scull Engineering Ltd.), a United Kingdom corporation
(collectively, the "Borrowers" and individually, the "Borrower"), you (the
"Lenders") and Harris Trust and Savings Bank, as agent for the Lenders (the
"Agent"). All defined terms used herein shall have the same meaning as in the
Credit Agreement unless otherwise define herein.
The Borrowers, the Agent and the Lenders wish to modify certain terms
and conditions of the Credit Agreement, all on the terms and conditions set
forth in this Amendment.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
Upon satisfaction of all of the conditions precedent set forth in
Section 3 hereof, the Credit Agreement shall be amended as follows:
1.1 The definition of "Borrowers" set forth in Section 9 of the Credit Agreement
shall be amended in its entirety and as so amended shall be restated to read as
follows:
"Borrowers" means (a) the U.S. Borrowers, (b) the Canadian
Borrowers and (c) the U.K. Borrowers, with (i) the term "Borrowers" to
mean the Borrowers, collectively, and, also each individually, and (ii)
all promises and covenants (including promises to pay) and
representations and warranties of and by the Borrowers made in the Loan
Documents or any instruments or documents delivered pursuant thereto to
be and constitute the joint and several promises, covenants,
representations and warranties of and by each and all of such
corporations, except to the extent explicitly otherwise provided. The
term "Borrower" appearing in such singular form shall be deemed a
reference to any of the Borrowers unless the context in which such term
is used shall otherwise require.
1.2 The definition of "Borrowing Base" set forth in Section 9 of the
Credit Agreement shall be amended by adding the following sentence thereto
immediately at the end thereof:
Anything contained in this Agreement notwithstanding (i) in
computing compliance by U.S. Borrowers with the Borrowing Base
requirements set forth in this Agreement, Eligible Accounts Receivable
shall only include those Eligible Accounts Receivable attributable to
the U.S. Borrowers and the U.S. Subsidiaries (exclusive of Eligible
Accounts Receivable of the Company used to support Credit Utilization
of the Canadian Borrowers and/or the U.K. Borrowers pursuant to clause
(ii) of this sentence) and (ii) for purposes of computing compliance by
the Canadian Borrowers and the U.K. Borrowers with the Borrowing Base
requirements set forth herein Eligible Accounts Receivable shall
include only those Eligible Accounts Receivable attributable to
Restricted Subsidiaries which are not U.S. Subsidiaries and Eligible
Accounts Receivable of the Company, to the extent that such Eligible
Accounts Receivable of the Company were not used to support Credit
Utilizations by the U.S. Borrowers. Deductions to be made in computing
the Borrowing Base in respect of amounts recorded for costs in excess
of billings representing certain disputed items shall be taken against
the allocated to the Eligible Accounts Receivable owing to the entity
which has recorded such costs.
1.3 Section 9 of the Credit Agreement shall be amended by adding
thereto the following new definitions in the appropriate alphabetical locations:
"Canadian Borrower" means and includes Comstock Canada and
such other Restricted Subsidiaries organized under the Federal laws of
Canada or the laws of a Province of Canada as may from time to time be
designated as such in writing by the Company and approved as such in
writing by all lenders (but subject to such conditions and limitations
as either the Company or the Lenders may impose).
"Canadian Subsidiaries" means and includes Comstock Canada and
such other Subsidiaries organized under the Federal laws of Canada or
the laws of a Province of Canada.
"U.K Borrowers" means and includes Drake & Scull and such
other Restricted Subsidiaries organized under the laws of the United
Kingdom as may from time to time be designated as such in writing by
the Company and approved as such in writing by all lenders (but subject
to such conditions and limitations as either the Company or the Lenders
may impose).
"U.K. Subsidiaries" means Drake & Scull and such other
Subsidiaries organized under the laws of the United Kingdom.
"U.S. Borrowers" mean the Company and such other Restricted
Subsidiaries organized under the laws of the United States of America
as may from time to time be designated as such in writing by the
Company and approved as such in writing by all Lenders (but subject to
such conditions and limitations as either the Company or Lenders may
impose).
"U.S. Subsidiaries" means the Subsidiaries of the Company
organized under the laws of the United States of America as may from
time to time be designated as such in writing by the Company and
approved as such in writing by all Lenders (but subject to such
conditions and limitations as either the Company or Lenders may
impose).
1.4 Section 4.1 of the Credit Agreement shall be amended by adding
thereto the following language immediately at the end thereof:
"Notwithstanding anything to the contrary contained herein or in
any other Loan Document, the Collateral (other than Collateral
constituting capital stock of the Guarantors) owned by the U.K.
Subsidiaries and the Canadian Subsidiaries shall secure solely the
indebtedness, liabilities and obligations of the U.K. Subsidiaries and
the Canadian Subsidiaries hereunder and under the other Loan Documents
and not the indebtedness, liabilities and obligations of the U.S.
Borrowers and the U.S. Subsidiaries hereunder and under the other Loan
Documents. The portion of the capital stock of each Guarantor which is
a U. K. Subsidiary or a Canadian Subsidiary constituting Collateral in
excess of 65% of the total issued and outstanding capital stock of
such Subsidiary (herein, the "Excess Stock Collateral") shall secure
only the indebtedness liabilities and obligations of the Canadian
Subsidiaries and/or U.K. Subsidiaries hereunder and under the other
Loan Documents. In no event shall the Excess Stock Collateral secure
the indebtedness, liabilities and obligations of the U.S. Borrowers or
the U.S. Subsidiaries hereunder or under the other Loan documents. It
is understood that, subject to compliance with the Borrowing Base
restrictions set forth above, the Company may borrow to fund loans to
Restricted Subsidiaries permitted by Section 7.12 hererof."
SECTION 2. RELEASE OF GUARANTEES
Notwithstanding anything contained in the Credit Agreement of the other
Loan Documents to the contrary, the Guarantees executed by the Guarantors which
are U.K. Subsidiaries or Canadian Subsidiaries shall in no event be deemed a
guaranty of the indebtedness, liabilities and obligations of the U. S. Borrowers
or the U.S. Subsidiaries under the Credit Agreement or the other Loan Documents
and such Guarantees shall be deemed released as to the indebtedness, liabilities
and obligations of the U.S. Borrowers of the U.S. Subsidiaries under the Credit
Agreement and the other Loan Documents, but not otherwise.
SECTION 3. WAIVER
Section 4.1 of the Credit Agreement to the contrary notwithstanding no
lien need be granted on the stock of the Canadian Subsidiaries, Drake & Scull
engineering Ltd. (formerly named Drake & Scull Engineering (north) Ltd. or Drake
& Scull Ltd. (formerly named Drake & Scull Engineering (South) Ltd.
(collectively, "New UK Companies") until July 31, 2000, (ii) the Canadian
Subsidiaries need not grant a lien on their assets unless and until the Canadian
Borrowers desire to include the assets of the Canadian Subsidiaries in the
Borrowing Base and (iii) the New UK Companies need not grant a lien on their
assets unless and until the UK Borrowers desire to include the assets of the New
UK Companies in the Borrowing Base.
SECTION 4. CONDITIONS PRECEDENT
The effectiveness of this Amendment is subject to the satisfaction of
all of the following conditions precedent:
4.1 The Borrowers, the Agent and the Required Lenders shall have
executed this Amendment (such execution may be in several counterparts and the
several parties hereto may execute on separate counterparts).
4.2 A Guarantor's Consent for the benefit of the Lenders shall have
been executed and delivered to the Agent, the form of which is attached hereto.
4.3 The Borrowers shall be in full compliance with all of the terms
and conditions of the Loan Documents and no Default or Event of Default
shall have occurred and be continuing thereunder or shall result after giving
effect to this Amendment.
4.4 Legal matters incident to the execution and delivery of this
Amendment shall be satisfactory to each of the Lenders and their legal counsel.
SECTION 5. MISCELLANEOUS
5.1 Each of the Borrowers has heretofore executed and delivered to the
Agent that certain Amended and Restated Security Agreement dated as of December
22, 1998 (the "Security Agreement") and each Borrower hereby agrees that
notwithstanding the execution and delivery hereof, such Security Agreement shall
be and remain in full force and effect and that any rights and remedies of the
Agent thereunder, obligations of the Borrowers thereunder and any liens or
security interests created or provided for thereunder shall be and remain in
full force and effect, shall not be affected, impaired or discharged thereby and
shall secure all of its indebtedness, obligations and liabilities to the Agent
and the Lenders under the Credit Agreement as amended hereby. Nothing herein
contained shall in any manner affect or impair the priority of the liens and
security interests created and provided for by the Security Agreement as to the
indebtedness which would be secured thereby prior to giving effect hereto.
5.2 Reference to this specific Amendment need not be made in any note,
document, letter, certificate, any security agreement, or any communication
issued or made pursuant to or with respect to the Credit Agreement, any
reference to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
5.3 This Amendment may be executed in any number of counterparts, and
by the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereby may
execute this agreement by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This agreement
shall be governed by the internal laws of the State of Illinois.
5.4 Each of the Borrowers hereby agree to pay all reasonable costs and
expenses, including without limitation attorneys fees, incurred by the Agent and
each of the Lenders in connection with the preparation, negotiation, execution
and delivery of the Amendment and the other documents contemplated hereby.
(Signature pages to follow)
Upon acceptance hereof by the Agent and the Lenders in the manner
hereinafter set forth, this Amendment shall be a contract between us for the
purposes hereinabove set forth.
Dated as of _____________, 2000
EMCOR Group, Inc.
By ___________________________
Its __________________________
COMSTOCK CANADA LTD.
By ___________________________
Its __________________________
DRAKE & SCULL GROUP LTD.
By ___________________________
Its __________________________
Accepted and agreed to as of the day and year last above written.
HARRIS TRUST AND SAVINGS BANK
individually and as Agent
By ________________________________
Its Vice President
LASALLE NATIONAL BANK
By ________________________________
Its _______________________________
FIRST UNION NATIONAL BANK
By _______________________________
Its ______________________________
UNION BANK OF CALIFORNIA, N.A.
By _______________________________
Its ______________________________
BANK ONE, ARIZONA, N.A.
By _______________________________
Its ______________________________
BANKBOSTON, N.A.
By _______________________________
Its ______________________________