EX-10.32 3 h94489ex10-32.txt FIRST AMENDMENT TO CREDIT AGREEMENT EXHIBIT 10.32 COMFORT SYSTEMS USA, INC. FIRST AMENDMENT TO CREDIT AGREEMENT This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of February 8, 2002 and entered into by and among COMFORT SYSTEMS USA, INC., a Delaware corporation (the "Company"), the other Credit Support Parties (as defined in Section 4 hereof), the Subsidiaries of the Company listed on the signature pages hereto as Guarantors (together with each other Person who subsequently becomes a Guarantor, collectively the "Guarantors"), the banks and other financial institutions listed on the signature pages hereto under the caption "Banks" (together with each other Person who becomes a Bank, collectively the "Banks"), BANK ONE, NA, individually as a bank ("BOT") and as administrative agent for the other Banks (in such capacity together with any other Person who becomes the administrative agent, the "Administrative Agent"), BANKERS TRUST COMPANY, individually as a Bank ("BTCo") and as syndication agent for the other Banks (in such capacity together with any other Person who becomes the syndication agent, the "Syndication Agent"), BANK OF AMERICA, N.A. (formerly known as NationsBank, N.A.), individually as a Bank ("BofA") and as documentation agent for the other Banks (in such capacity together with any other Person who becomes the documentation agent, the "Documentation Agent"; and together with the Administrative Agent and the Syndication Agent, the "Agents"), and CREDIT LYONNAIS NEW YORK BRANCH, individually as a Bank and Co-Agent, NATIONAL CITY BANK, individually as a Bank and as Co-Agent, and THE BANK OF NOVA SCOTIA, individually as a Bank and as Co-Agent (collectively, the "Co-Agents"), and is made with reference to that certain Fourth Amended and Restated Credit Agreement dated as of March 22, 2001, by and among the Company, the Guarantors, the Banks, the Agents and the Co-Agents (the "Credit Agreement"), and to other Loan Documents. Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement, as amended hereby (the "Amended Credit Agreement"). RECITALS WHEREAS, the Company, the Guarantors and the Banks desire to amend the Credit Agreement as set forth herein; NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows: Section 1. Amendment to the Credit Agreement. A. Amendments to Section 1.1 - Definitions. 1. The definition of "EBITDA" in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor: -1- ""EBITDA" means, for any period, the consolidated pre-tax income for such period, plus the aggregate amount which was deducted for such period in determining such consolidated, pre-tax income in respect of Interest Expense (including amortization of debt discount, imputed interest and capitalized interest), depreciation and amortization, provided, the calculations of EBITDA after the acquisition of assets or entities permitted under Section 8.5(d) shall include pro forma adjustments consistent with the regulations and practices of the United States Securities and Exchange Commission (whether or not applicable) to account for such acquired entity's historical EBITDA for the relevant period or similar adjustments in the case of an asset acquisition; and further provided that impairment to goodwill calculated in accordance with FASB Statement No. 142, Goodwill and Other Intangibles, shall be disregarded for the purposes of calculating EBITDA. The amount of Borrower's reserves booked on or before December 31, 2001 not in excess of $4,800,000 in the aggregate attributable to receivables from Kmart Corporation, and receivables from other Persons attributable to work performed on behalf of Kmart Corporation, may be added back in determining EBITDA, but only to the extent such receivables were deducted in calculating EBITDA; provided, that such addback shall be reduced by the amount of receivables subject to such reserve, if any, collected from Kmart Corporation or any such other Person. EBITDA shall include no calculation in respect of the Subsidiaries listed on Schedule 8.2(d) after the Emcor Sale Effective Date." 2. The following definition of "Emcor Sale Effective Date" is added in alphabetical order: ""Emcor Sale Effective Date" means the date on which the Asset Sale permitted under Section 8.2(d) is consummated. 3. The definition of "Total Commitment" in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the following substituted therefor: ""Total Commitment" means (a) before the Emcor Sale Effective Date, the sum of the Commitments for each Bank totaling a maximum of $250,000,000.00 for all Banks, and (b) on and after the Emcor Sale Effective Date, the sum of the Commitments for each Bank totaling a maximum of $100,000,000.00 for all Banks." B. Amendment to Section 2.7(a) Mandatory Repayments. Section 2.7(a) of the Credit Agreement is hereby deleted in its entirety and the following substituted therefore: (a) Net Asset Sale Proceeds. No later than (i) the first Business Day following the date of receipt by the Company or any of its Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset Sale -2- (other than from a Sale and Leaseback Transaction permitted by Section 8.3(n) or an Asset Sale permitted by Section 8.2(d)) in excess of $5,000,000 for any single transaction or related series of transactions the Company shall repay the Loans, and the Revolving Loan Commitments shall be permanently reduced in an aggregate amount equal to such Net Asset Sale Proceeds, and (ii) the first Business Day following the 360th day after receipt by the Company or any Subsidiary of any Net Asset Sale Proceeds in respect of any Asset Sale of $5,000,000 or less for any single transaction, or related series of transactions the Company shall repay the Loans, and the Revolving Loan Commitments shall be permanently reduced in an aggregate amount equal to the amount of such Net Asset Sale Proceeds that were not reinvested in the business of the Company or any of its Subsidiaries on or before such date; C. Amendment to Section 8.2 : Consolidation, Merger or Sale of Assets. Section 8.2 of the Credit Agreement is hereby deleted in its entirety and the following substituted therefore: "Consolidation, Merger or Sale of Assets. Except as disclosed to the Administrative Agent on or before the Effective Date in writing, the Company will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve their affairs, or enter into any transaction of merger or consolidation, or enter into any Asset Sales, except for (a) mergers permitted under Section 8.5(d), so long as the Company is the surviving entity and so long as no Event of Default occurs immediately before or after such merger, (b) mergers by the Company with any of its wholly-owned Subsidiaries and mergers by the Company's wholly-owned Subsidiaries with another of the Company's wholly-owned Subsidiaries with another of the Company's wholly-owned Subsidiaries, so long as the Company is the surviving entity and so long as no Event of Default occurs immediately before or after such merger, and (c) mergers by a wholly-owned Subsidiary of the Company with another Person in connection with an Investment permitted under Section 8.5(d), so long as the relevant Subsidiary is the surviving entity and so long as no Event of Default occurs immediately before or after such merger, (d) Asset Sales upon terms and conditions presented in writing to the Administrative Agent prior to the Amendment Effective Date (as hereinafter defined) with respect to the stock or membership interests of Subsidiaries listed on Exhibit 8.2(d) attached hereto and incorporated herein by reference and the assets owned by such Subsidiaries, provided that (i) the Emcor Sale Effective Date arises on or before June 30, 2002, (ii) the Administrative Agent shall have received copies of all original documents relating to such Asset Sale, together with such financial information and projection regarding such Asset Sale as are reasonably requested by the Administrative Agent, (iii) the Administrative Agent shall have received Net Asset Sale Proceeds of not less than $130,000,000 from such Asset Sale for application to the Obligations, and (iv) the Borrower shall have -3- been released from its obligations to repay at least $20,000,000 in Subordinated Debt by the holders thereof; and (e) Sale and Leaseback Transactions permitted under Section 8.3(n)." D. Amendment to Section 8.4(a): Liens and Related Matters. Section 8.4(a) of the Credit Agreement is hereby deleted in its entirety, and the following substituted therefore: SECTION 8.4 Liens and Related Matters. (a) Prohibition on Liens. Neither the Company nor any Subsidiary of the Company will create, incur, assume or suffer to exist any Lien upon or with respect to any of its property or assets of any kind whether now owned or hereafter acquired, except: (i) Liens on the Effective Date and listed on Schedule 8.4(a); (ii) Liens existing on the Effective Date securing currently secured Indebtedness permitted Section 8.3(b) or Section 8.3(h) above; (iii) Permitted Liens; (iv) Liens securing Indebtedness permitted under Section 8.3(h) and Section 8.3(j); (v) Liens granted pursuant to the Collateral Documents; (vi) any renewal, extension or replacement of any Lien referred to above with the same lenders; provided that no Lien arising or existing as a result of such extension, renewal or replacement shall be extended to cover any property not theretofore subject to the Lien being extended, renewed or replaced; and provided further that the principal amount of the Indebtedness secured thereby shall not exceed the principal amount of the Indebtedness so secured at the time of such extension, renewal or replacement; and (vii) commencing on or after the Emcor Sale Effective Date, escrow arrangements with the purchaser in the Asset Sale permitted by Section 8.2(d) respecting deposit accounts holding cash purchase price payments not in excess of $15,000,000 in the aggregate; E. Amendment of Section 8.5. Investments. Section 8.5 of the Credit Agreement is deleted in its entirety and the following substitution therefore: -4- SECTION 8.5 Investments. Neither the Company nor any Subsidiary will, directly or indirectly, make or own any Investment in any Person, except: (a) Permitted Investments; (b) Investments owned on the Effective Date as set forth on Schedule 8.5(b), including Investments in the Subsidiaries, direct and indirect; (c) Investments arising out of loans and advances for expenses, travel per diem and similar items in the ordinary course of business to officers, directors and employees and intercompany Indebtedness permitted by Section 8.3(f); (d) Provided that the Company has obtained the prior written consent of the Eighty Percent Banks with respect thereto, Investments in the stock, warrants, stock appreciation rights, other securities and/or other assets of domestic entities engaged in the same general type of business as the Company on the Effective Date, in which the Company or one of its wholly owned Subsidiaries is the surviving entity. (e) other Investments having cost to the Company and its Subsidiaries not exceeding $2,000,000.00 in the aggregate at any one time outstanding during the term of this Agreement, (f) Investments in the form of stock buybacks allowed under Section 8.6; (g) Investments in capital stock of wholly-owned Subsidiaries of the Company in existence on the Effective Date; and (h) Investments constituting the transfer to a Guarantor of the stock of the Subsidiaries to be sold in the Asset Sale permitted by Section 8.2(d) for the sole purpose of facilitating the conveyance by such Guarantor to the purchaser in such Asset Sale, provided that such Guarantor has executed a Subsidiary Pledge Agreement prior to such Investment. F. Amendment of Section 8.15 - Minimum EBITDA. Section 8.15 of the Credit Agreement is deleted in its entirety and the following is substituted therefor: "Before the Emcor Sale Effective Date, the Company will not, as of the last day of any fiscal quarter specified in the table below, permit its EBITDA for the three (3) months then ended to be less than the amounts set forth below: -5-
QUARTER ENDING QUARTERLY DATE(S) EBITDA -------------- --------- 03/31/01 $13,000,000.00 06/30/01 $18,500,000.00 09/30/01 $23,000,000.00 12/31/01 $21,500,000.00 03/31/02 $13,700,000.00 06/30/02 $20,000,000.00 09/30/02 $24,800,000.00 12/31/02 and quarters ending thereafter $23,200,000.00
From and after the Emcor Sale Effective Date, the Company will not, as of the last day of any fiscal quarter specified in the table below, permit its EBITDA for the three (3) months then ended to be less than the amounts set forth below; provided, that the calculation for the Company's EBITDA for any fiscal quarter ending on or after the Emcor Sale Effective Date shall include no calculations in respect of the Subsidiaries listed on Exhibit 8.2(d):
QUARTERLY DATE(S) EBITDA ------- --------- 03/31/02 $ 3,332,850.00 06/30/02 $ 7,893,100.00 09/30/02 $11,151,150.00 12/31/02 $ 7,738,400.00"
G. Amendment of Exhibit 8.2(d). Exhibit 8.2(d) to the Credit Agreement is deleted in its entirety and the Exhibit 8.2(d) attached to this Amendment is substituted therefor. H. Amendment of Schedule 6.16. Effective upon the occurrence of the Emcor Sale Effective Date, Schedule 6.16 to the Credit Agreement is deleted in its entirety and the Schedule 6.16 attached to this Amendment is substituted therefore. -6- Section 2. Conditions to Effectiveness. Section 1 of this Amendment shall become effective only upon the prior or concurrent satisfaction of all of the following conditions precedent (the date of satisfaction of such conditions being referred to herein as the "Amendment Effective Date"): A. On or before the Amendment Effective Date, the Company shall deliver to the Banks (or to the Agents for the Banks) the following, each, unless otherwise noted, dated the Amendment Effective Date: 1. A certificate of the secretary or an assistant secretary of the Company and of the Guarantors certifying: (i) that the resolutions of the Board of Directors of the Company and of the Guarantors approving and authorizing the execution, delivery, and performance of the Amended Credit Agreement and amendments thereto delivered on the Effective Date, are in full force and effect and have not been amended, supplemented or otherwise modified since December 14, 1998, (ii) the signature and incumbency of the officers of each of the Company and of the Guarantors who are authorized to sign on behalf of the Company or such Guarantor, and (iii) the Company is in compliance with Sections 8.10 through 8.15, inclusive, of the Credit Agreement as of the Amendment Effective Date, after giving effect to the EBITDA addbacks referenced in Section 1.A.1. of this Amendment in respect of receivables attributable to Kmart Corporation and receivables from other Persons attributable to work performed on behalf of Kmart Corporation. 2. Counterparts of this Amendment executed by the Banks and each of the other parties hereto. 3. The fee referenced in Section 5B. B. On or before the Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated hereby and all documents incidental thereto not previously found acceptable by the Agents, acting on behalf of the Banks, and their counsel shall be reasonably satisfactory in form and substance to the Agents and such counsel, and the Agents and such counsel shall have received all such counterpart originals or certified copies of such documents as the Agents may reasonably request. Section 3. Representations and Warranties. In order to induce the Banks to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, the Company and each Guarantor party hereto represents and warrants to each Bank that the following statements are true, correct and complete as to itself: A. Corporate Power and Authority. The Company and each Guarantor party hereto has all requisite corporate power and authority to enter into this Amendment and to carry out the transactions contemplated hereby and the Company and each Guarantor party hereto has all requisite corporate power and authority to carry out the transactions contemplated by, and perform its obligations under, the Amended Credit Agreement. -7- B. Authorization of Agreements. The execution and delivery of this Amendment and the performance of the Amended Credit Agreement have been duly authorized by all necessary corporate action on the part of the Company and each Guarantor party hereto, as the case may be. C. No Conflict. The execution and delivery by the Company and each Guarantor party hereto of this Amendment and the performance by the Company and each Guarantor of this Amendment and the performance by the Company and each Guarantor party hereto of the Amended Credit Agreement do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to the Company or any of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of the Company or any of its Subsidiaries or any order, judgment or decree of any court or other agency of government binding on the Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material agreement to which the Company or any of its Subsidiaries is a party or by which it is bound or to which it is subject, (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries (other than any Liens created under any of the Loan Documents in favor of the Agents on behalf of the Banks), or (iv) require any approval of stockholders or any approval or consent of any Person under any material agreement to which the Company or any of its Subsidiaries is a party or by which it is bound or to which it is subject. D. Governmental Consents. The execution and delivery by the Company and each Guarantor party hereto of this Amendment and the performance by the Company and each Guarantor of this Amendment and the performance by the Company and each Guarantor of the Amended Credit Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body, except those that have already been obtained. E. Binding Obligation. This Amendment has been duly executed and delivered by the Company and each Guarantor party hereto and this Amendment and the Amended Credit Agreement are the legally valid and binding obligations of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors= rights generally or by equitable principles relating to enforceability. F. Incorporation of Representations and Warranties From Amended Credit Agreement. The representations and warranties contained in Article VI of the Amended Credit Agreement are and will be true, correct and complete in all material respects on and as of the Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date. -8- G. Absence of Default. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would, after giving effect to this Amendment, constitute an Event of Default or a Default. Section 4. Acknowledgment and Consent. The Company is a party to certain Collateral Documents pursuant to which the Company has created Liens in favor of the Agents on certain Collateral to secure the Obligations. Each of the Guarantors party hereto is a party to certain Collateral Documents and the Guaranty, pursuant to which each such Guarantor has (i) guarantied the Obligations and (ii) created Liens in favor of the Administrative Agent on certain Collateral to secure the Guaranteed Obligations of such Guarantor under the Guaranty. The Guarantors party hereto are collectively referred to herein as the "Credit Support Parties," and the Collateral Documents and the Guaranty are collectively referred to herein as the "Credit Support Documents." Each Credit Support Party hereby acknowledges that it has reviewed the terms and provisions of the Credit Agreement, the Collateral Documents and the Guaranty and this Amendment and consents to the further amendment of the Credit Agreement effected pursuant to this Amendment. Each Credit Support Party hereby confirms that each Credit Support Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guaranty or secure, as the case may be, to the fullest extent possible the payment and performance of all "Obligations," "Guarantied Obligations" and "Secured Obligations," as the case may be (in each case as such terms are defined in the applicable Credit Support Document), including without limitation the payment and performance of all such "Obligations," "Guarantied Obligations" or "Secured Obligations," as the case may be, in respect of the Obligations of the Company now or hereafter existing under or in respect of the Amended Credit Agreement and the other Loan Documents. Each Credit Support Party acknowledges and agrees that any of the Credit Support Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment. Each Credit Support Party represents and warrants that all representations and warranties contained in the Amended Credit Agreement and the other Credit Support Documents to which it is a party or otherwise bound are true, correct and complete in all material respects on and as of the Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date. Each Credit Support Party acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Credit Support Party is not required by the terms of the Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Amended Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Credit Support Party to any future amendments to the Amended Credit Agreement. -9- Section 5. Miscellaneous. A. Reference to and Effect on the Amended Credit Agreement and the Other Loan Documents. 1. On and after the Amendment Effective Date, each reference in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the "Credit Agreement," "thereunder," "thereof" or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement. 2. Except as specifically amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. 3. The execution, delivery and performance of this Amendment shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or any Bank under, the Credit Agreement or any of the other Loan Documents. B. Fees and Expenses. Company acknowledges that all reasonable costs, fees and expenses as described in Section 12.4 of the Credit Agreement incurred by the Agents and its counsel with respect to this Amendment and the documents and transactions contemplated hereby shall be for the account of the Company, and the Company agrees to pay to the Administrative Agent for the ratable benefit of the Banks on the Amendment Effective Date an amendment fee equal to $150,000. C. Headings. Section and subsection headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect. D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. E. Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Amendment (other than the provisions of Section 1, which shall become effective upon the satisfaction of each of the conditions set forth in Section 2) shall become effective -10- upon the execution of a counterpart hereof by the Company, the Credit Support Parties, the Guarantors and the Banks and receipt by the Company and the Agents of written or telephonic notification of such execution and authorization of delivery of such counterpart. Section 6. Releases of Collateral. The Administrative Agent shall deliver, and the Banks hereby authorize the Administrative Agent to deliver, on the Emcor Sale Effective Date and at the Borrower's expense, such releases, stock certificates and other documents as are reasonable requested by the Borrower to evidence the release of the Collateral pledged by the Subsidiaries listed on Exhibit 8.2(d), the release of the pledge by Borrower of the stock of each such Subsidiary, and the release of such Subsidiaries from their respective obligations under the Guaranty and other Loan Documents. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -11- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written. COMPANY: COMFORT SYSTEMS USA, INC. By: --------------------------------------- J. Gordon Beittenmiller Executive Vice President and Chief Financial Officer -12- CREDIT SUPPORT PARTIES AND GUARANTORS: ACI MECHANICAL, INC. ACCU-TEMP GP, INC. ACCU-TEMP LP, INC. ACCU-TEMP, LLC, by Accu-Temp LP, Inc., managing member AIR SOLUTIONS USA, INC. AMERICAN MECHANICAL INC. ARC COMFORT SYSTEMS USA, INC. (fka American Refrigeration Contractors, Inc.) BATCHELOR'S MECHANICAL CONTRACTORS, INC. BCM CONTROLS CORPORATION CARSON BROTHERS, INC. CEL, INC. (Casey Electric) CENTRAL MECHANICAL CONSTRUCTION CO., INC. CENTRAL MECHANICAL, INC. COMFORT SYSTEMS USA G.P., INC. COMFORT SYSTEMS USA (ARKANSAS), INC. (fka River City Mechanical, Incorporated) COMFORT SYSTEMS USA (BRISTOL), INC. (fka Fred Hayes Mechanical Contractors, Inc.) COMFORT SYSTEMS USA (CLEVELAND), INC. (fka Tech Heating and Air Conditioning, Inc.) COMFORT SYSTEMS USA (HARTFORD), INC. (fka The Harvey Robbin Company) COMFORT SYSTEMS USA (INTERMOUNTAIN), INC. (fka Contract Service, Inc.) COMFORT SYSTEMS USA (OREGON), INC. (fka A.C.I. Mechanical USA, Inc.) COMFORT SYSTEMS USA (PHILADELPHIA), INC. (fka Lower Bucks Cooling and Heating Corporation) COMFORT SYSTEMS USA (SOUTH BOSTON), INC. (fka Climate Control, Inc.) COMFORT SYSTEMS USA (SYRACUSE), INC. (fka Armani Plumbing & Mechanical, Inc.) COMFORT SYSTEMS USA (TEXAS), L.P., by Comfort Systems USA G.P., Inc., sole general partner COMFORT SYSTEMS USA (TWIN CITIES), INC. (fka EDS, Inc.) -13- COMFORT SYSTEMS USA (WESTERN MICHIGAN), Inc. (restructure River City Mechanical, Inc. and H&H Plumbing & Heating, Inc.) CS44 ACQUISITION CORP. (Edmonds/Service Refrigeration) DESIGN MECHANICAL INCORPORATED EASTERN HEATING & COOLING, INC. EASTERN REFRIGERATION CO., INC. E.L. PRUITT COMPANY ESS ENGINEERING, INC. F&G MECHANICAL CORPORATION GOTHAM AIR CONDITIONING SERVICE, INC. GULFSIDE MECHANICAL, INC. H & M MECHANICAL, INC. HELM CORPORATION HELM CORPORATION SAN DIEGO HESS MECHANICAL CORPORATION HILLCREST SHEET METAL, INC. INDUSTRIAL COOLING INC. J & J MECHANICAL, INC. JAMES AIR CONDITIONING ENTERPRISE INC. KILGUST MECHANICAL, INC. KUEMPEL SERVICE, INC. LOWRIE ELECTRIC COMPANY, INC. MANDELL MECHANICAL CORPORATION MARTIN HEATING, INC. MAXIMUM REFRIGERATION & AIR CONDITIONING CORP. MEADOWLANDS FIRE PROTECTION CORP. MECHANICAL SERVICE GROUP, INC. (Page) MJ MECHANICAL SERVICES, INC. NEEL MECHANICAL CONTRACTORS, INC. NOGLE & BLACK MECHANICAL, INC. NORTH AMERICAN MECHANICAL, INC. NORTH JERSEY MECHANICAL CONTRACTORS, INC. OK SHEET METAL AND AIR CONDITIONING, INC. PLANT SERVICES INCORPORATED QUALITY AIR HEATING & COOLING, INC. ROSS & ASSOCIATES, INC. S&K AIR CONDITIONING CO., INC. S.I. GOLDMAN COMPANY, INC. S.M. LAWRENCE COMPANY, INC. -14- SA ASSOCIATES, INC. (formerly Salmon & Alder, Inc.) SALMON & ALDER, LLC, by SA Associates, Inc., sole member SEASONAIR, INC. SOUTHERN BLUEGRASS MECHANICAL, INC. STANDARD HEATING & AIR CONDITIONING COMPANY SUPERIOR MECHANICAL SYSTEMS TARGET CONSTRUCTION, INC. TEMP-RIGHT SERVICE, INC. TEMPRITE AIR CONDITIONING AND REFRIGERATION, INC. THE CAPITAL REFRIGERATION COMPANY THE FAGAN COMPANY TRI-CITY MECHANICAL, INC. TROOST SERVICE CO. WALKER-J-WALKER, INC. WEATHER ENGINEERING, INC. WESTERN BUILDING SERVICES, INC. By: ------------------------------------ J. Gordon Beittenmiller, Vice President -15- ATLAS-ACCURATE HOLDINGS, L.L.C. ATLAS-ACCURATE HOLDINGS, L.L.C., as the sole general partner of Accurate Air Systems, L.P. (restructure of Accurate Air Systems, Inc.) Atlas Air Conditioning Company, L.P. (restructure of Atlas Air Conditioning Company and Atlas Comfort Services USA, Inc.) Border Electric, L.P. Border Mechanical, L.P. Mechanical Technical, L.P. Shambaugh & Son, L.P. (restructure of Shambaugh & Son, Inc./Shambaugh & Son Conversion Corporation) United Environmental Services, L.P. (restructure of United Environmental Services, Inc./UES Conversion Corporation) By: CS48 ACQUISITION CORP., sole member By: ------------------------------------ J. Gordon Beittenmiller, Vice President -16- ADMINISTRATIVE AGENT/BANK: Amount of Commitment before the BANK ONE, NA, Emcor Sale Effective Date: as Administrative Agent and Individually $37,500,000.00 as a Bank Amount of Commitment after the Emcor Sale Effective Date: $15,000,000.00 By: -------------------------------- Name: -------------------------------- Title: -------------------------------- -17- SYNDICATION AGENT/BANK: Amount of Commitment before the BANKERS TRUST COMPANY, Emcor Sale Effective Date: as Syndication Agent and Individually $29,166,667.00 as a Bank Amount of Commitment after the Emcor Sale Effective Date: $11,666,667.00 By: -------------------------------- Name: -------------------------------- Title: -------------------------------- -18- DOCUMENTATION AGENT/BANK: Amount of Commitment before the BANK OF AMERICA, N.A. (formerly known as Emcor Sale Effective Date: NationsBank, N.A.), as Documentation $35,416,667.00 Agent and Individually, as a Bank Amount of Commitment after the Emcor Sale Effective Date: $14,166,667.00 By: -------------------------------- Name: -------------------------------- Title: -------------------------------- -19- CO-AGENT/BANK: Amount of Commitment before the CREDIT LYONNAIS NEW YORK BRANCH, Emcor Sale Effective Date: as Co-Agent and Individually as a Bank $20,833,333.00 Amount of Commitment after the Emcor Sale Effective Date: $8,333,333.00 By: -------------------------------- Name: -------------------------------- Title: -------------------------------- -20- CO-AGENT/BANK: Amount of Commitment before the NATIONAL CITY BANK, Emcor Sale Effective Date: as Co-Agent and Individually, as a Bank $20,833,333.00 Amount of Commitment after the Emcor Sale Effective Date: By: $8,333,333.00 -------------------------------- Name: -------------------------------- Title: -------------------------------- -21- CO-AGENT/BANK: Amount of Commitment before the THE BANK OF NOVA SCOTIA, Emcor Sale Effective Date: as Co-Agent and Individually, as a Bank $20,833,333.00 Amount of Commitment after the Emcor Sale Effective Date: By: $8,333,333.00 -------------------------------- Name: -------------------------------- Title: -------------------------------- -22- BANK: Amount of Commitment before the UNION BANK OF CALIFORNIA, N.A. Emcor Sale Effective Date: $16,666,667.00 Amount of Commitment after the By: Emcor Sale Effective Date: -------------------------------- $6,666,667.00 Name: -------------------------------- Title: -------------------------------- -23- BANK: Amount of Commitment before the COMERICA BANK Emcor Sale Effective Date: $12,500,000.00 Amount of Commitment after the By: Emcor Sale Effective Date: -------------------------------- $5,000,000.00 Name: -------------------------------- Title: -------------------------------- -24- BANK: Amount of Commitment before the BANK POLSKA, KASA OPIEKI S.A., PEKOA Emcor Sale Effective Date: S.A. GROUP, NEW YORK BRANCH $4,166,666.00 Amount of Commitment after the Emcor Sale Effective Date: By: $1,666,666.00 -------------------------------- Name: -------------------------------- Title: -------------------------------- -25- BANK: Amount of Commitment before the FIRSTAR BANK, NATIONAL ASSOCIATION Emcor Sale Effective Date: $25,000,000.00 Amount of Commitment after the By: Emcor Sale Effective Date: -------------------------------- $10,000,000.00 Name: -------------------------------- Title: -------------------------------- -26- BANK: Amount of Commitment before the LASALLE BANK NATIONAL ASSOCIATION Emcor Sale Effective Date: $16,666,667.00 Amount of Commitment after the By: Emcor Sale Effective Date: -------------------------------- $6,666,667.00 Name: -------------------------------- Title: -------------------------------- -27- BANK: Amount of Commitment before the GENERAL ELECTRIC CAPITAL Emcor Sale Effective Date: CORPORATION $10,416,667.00 Amount of Commitment after the Emcor Sale Effective Date: By: $4,166,667.00 -------------------------------- Name: -------------------------------- Title: -------------------------------- -28- EXHIBIT 8.2(d) EXCEPTED SUBSIDIARIES 1. American Mechanical, Inc. 2. Central Mechanical Construction Co., Inc. 3. CS48 Acquisition Corp. 4. E.L. Pruitt Company 5. F&G Mechanical Corporation 6. Gotham Air Conditioning Service, Inc. 7. Hillcrest Sheet Metal, Inc. 8. Kilgust Mechanical, Inc. 9. Kuempel Service, Inc. 10. Lowrie Electric Company, Inc. 11. Mandell Mechanical Corporation 12. Maximum Refrigeration & Air Conditioning Corp. 13. Meadowlands Fire Protection Corp. 14. NJM Service Co. 15. Nogle & Black Mechanical, Inc. 16. North Jersey Mechanical Contractors, Inc. 17. Temprite Air Conditioning and Refrigeration, Inc. 18. The Fagan Company 19. Walker-J-Walker, Inc. 20. Shambaugh & Son, L.P. 21. Border Electric Co., L.P. 22. Border Mechanical Co., L.P. 23. CSUSA Holdings L.L.C. Exhibit 8.2(d) - Page 1 SCHEDULE 6.16 SUBSIDIARIES OF COMFORT SYSTEMS USA, INC.
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 1. ACI Mechanical, Inc. 3116 S. Duff Ave. 515-232-1236 515-232-0136 Ames, IA 50010 --- P.O. Box 192 Ames, IA 50010-0192 2. A.C.I. Mechanical USA, Inc. 12300 S.W. 69th Avenue 503-598-4798 503-639-0498 Tigard, OR 97223 3. Accurate Air Systems, L.P. 9745 Bent Oak 713-856-5550 713-856-9720 (restructure of Accurate Air Houston, TX 77040 Systems, Inc) 4. Accu-Temp GP, Inc. 777 Post Oak Blvd 713-830-9600 713-830-9696 Suite 500 800-723-8431 Houston, TX 77056 5. Accu-Temp LP, Inc. 660 Virginia Ave. 317-638-5363 317-264-3571 Indianapolis, IN 46203 6. Accu-Temp, LLC 660 Virginia Ave. 317-638-5363 317-264-3571 Indianapolis, IN 46203 7. Air Solutions USA, Inc. 4038 East Superior Avenue 602-437-4822 602-437-4824 Bldg. 2, Suite 103 Phoenix, Arizona 85040 8. Air Temp, Inc. 11 Wallace Ave. 207-774-2300 207-871-1345 S. Portland, ME 04106 9. American Refrigeration Contractors, 1110 East Douglas Ave. 559-627-2653 559-627-3549 Inc. Visalia, CA 93292 10. Atlas-Accurate Holdings, L.L.C. 777 Post Oak Blvd 713-830-9600 713-830-9696 Suite 500 800-723-8431 Houston, TX 77056 11. Atlas Air Conditioning Company, 4133 Southerland 713-460-7300 713-460-7301 L.P. (restructure of Atlas Air Houston, TX 77092 Conditioning Company) 12. Batchelor's Mechanical Contractors, 3110 Old Shell Rd. 334-470-6800 334-479-7743 Inc. Mobile, AL 36607 13. BCM Controls Corporation 19 Wheeling Ave. 781-933-8878 781-932-3856 Woburn, MA 01801 14. Carson Brothers, Inc. 1639 Montana 35 406-752-2778 406-257-0381 Kalispell, MT 59901 15. CEL, Inc. (Casey Electric) 710 Airways Blvd. 901-424-7741 901-424-7945 Jackson, TN 38301
Schedule 6.16 - Page 1
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 16. Central Mechanical, Inc. 2826 Mine & Mill Road, 941-666-5377 941-667-1063 Lakeland, FL 33801 --- P.O. Box 7073, Lakeland, FL 33807-7073 17. Climate Control, Inc. 1057 Bill Tuck Highway 804-572-6986 804-572-8935 So. Boston, VA 24592 18. Comfort Systems USA (Arkansas), P.O. Box 16620 (501) 834-3320 (501) 834-5416 Inc. (fka River City Mechanical North Little Rock, AR 72231 Incorporated) 4806 Rixey Road North Little Rock, AR 72117 19. Comfort Systems USA (Bristol), Inc. 294 Blevins Blvd. 540-669-3138 540-669-5620 (fka Fred Hayu Mechanical Bristol, VA 24202 800-688-3138 Contractors, Inc.) --- P.O. Box 757 Bristol, VA 24203-0757 20. Comfort Systems USA (Cleveland), 30300 Bruce Industrial Parkway 440-248-9144 440-248-0473 Inc. (fka Tech Heating and Air Solon, OH 44139 800-203-9144 Conditioning, Inc.) 21. Comfort Systems USA (Florida), Inc. 1026 Szvage Court 407-265-1480 407-265-9771 Longwood, FL 32750 22. Comfort Systems USA G.P., Inc. 777 Post Oak Blvd 713-830-9600 713-830-9696 Suite 500 800-723-8431 Houston, TX 77056 23. Comfort Systems USA (Hartford), 50 Banker Hollow Road, Suite A 860-687-9912 860-687-9918 Inc. (fka The Harvey Robbin Company) Windsor, CT 06095 24. Comfort Systems USA 3222 Washington Street 801-484-4402 801-484-0652 (Intermountain), Inc. ((fka 250W Conntract Service, Inc. Salt Lake City, UT 84115 CSI/Bonneville) --- --- Pond's Plumbing Operations --- Applied Temperature Control Operations 25. Comfort System USA National Service 3976 Southern Ave. 513-271-6500 513-271-4676 Organization, Inc. Cincinnati, OH 45227
Schedule 6.16 - Page 2
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 26. Comfort Systems USA (Philadelphia), 1961 Hartel St. 215-943-6700 215-943-8409 Inc. (fka Lower Bucks Heating and Levittown, PA 19021 Colling, Inc../Ameritch) 27. Comfort Systems USA (Syracuse), 6500 New Venture Gear Drive 315-425-7100 315-471-6857 Inc. (fka Armani Plumbing & Syracuse, NY 13057 Mechanical, Inc., abj Fire Protection and Woodcock & Associates.) 28. Comfort Systems USA (Texas), L.P. 777 Post Oak Blvd 713-830-9600 713-830-9696 Suite 500 800-723-8431 Houston, TX 77056 29. Comfort Systems USA (Twin Cities), 2611 Hamline Ave. North 651-697-7200 651-697-7201 Inc. EDS, Inc. (fka EDS, Inc.) Suite 150 [Energy Development Services} Roseville, MN 55113 30. CS44 Acquisition Corp. 1208 First Street 281-446-4355 281-446-4294 (Edmonds/Service Refrigeration) Suite B Humble, TX 77338 31. Design Mechanical Incorporated 5637 Arapahoe Rd. 303-449-2092 303-449-8739 Boulder, CO 80303 32. Eastern Heating & Cooling, Inc. 880 Broadway 518-465-8878 518-465-0542 Albany, NY 12207-1316 33. Eastern Refrigeration Co., Inc. 880 Broadway 518-465-8878 518-465-0542 Albany, NY 12207-1316 34. ESS Engineering, Inc. 2141 East Broadway, Suite 211 480-784-4500 480-784-4800 Tempe, AZ 85282 35. FIX Reinsurance Corporation 156 College Street 802-658-9405 802-658-0112 Burlington, Vermont 05401 36. Fred Hayes Mechanical Contractors, 777 Post Oak Blvd. 713-830-9650 713-830-9659 Inc. Suite 500 Houston, TX 77056 37. Gulfside Mechanical, Inc. 435 Corday St. 850-484-4999 850-484-4951 Pensacola, FL 32503 38. H & H Plumbing & Heating, Inc. 421 North Lafayette St. 800-968-3111 616-754-8220 Greenville, MI 48838 39. H & M Mechanical, Inc. 135 Belcher Drive 205-664-0620 205-663-1312 Pelham, AL 35124 40. Helm Corporation 2686 S. Tejon St. 303-936-9133 303-936-9205 Englewood, CO 80110
Schedule 6.16 - Page 3
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 41. Helm Corporation San Diego 650 Alpine Way 760-738-0233 760-738-6032 Escondido, CA 92029-6703 42. Hess Mechanical Corporation 9600 Fallard Ct. 301-856-4700 301-856-4720 Upper Marlboro, MD 20772 43. Industrial Cooling Inc. 30 S. Ocean Ave. 516-546-0202 516-867-7725 Suite 304 Freeport, NY 11520 44. J & J Mechanical, Inc. 4006 South Brook 502-363-2654 502-361-0426 Louisville, KY 40214 45. James Air Conditioning Enterprise Carr #1KM.- 23 HM.0 B.O. 787-789-0904 787-789-0916 Inc. Rio Guaynabo, PR 00970 --- P.O. Box 4956 Suite 1134 Caguas, PR 00726-4956 46. Martin Heating, Inc. 1655 W. High School Rd. 307-733-3755 307-733-4554 Jackson Hole, WY 83001 47. MDC Service Corporation 8425 W. Elowin Court 559-651-8040 559-651-0662 Visalia, CA 9391 800-366-3316 48. Mechanical Service Group, Inc. 12165 Metro Parkway, #28 941-561-2777 941-561-2334 (Page) Fort Myers, FL 33912 49. Mechanical Technical Services, L.P. 7808 Danz Blvd. 512-929-7090 512-929-7197 Austin, TX 78724 50. MJ Mechanical Services, Inc. 2040 Military Rd. 716-874-9200 716-874-6438 Tonawanda, NY 14150 --- J.M. State Refrigeration 716-693-7293 716-693-8953 Operations- 300 Fire Tower Drive Tonawanda, NY 14151 51. Neel Mechanical Contractors, Inc. 250 Commercial Drive 912-226-2743 912-226-2747 Thomasville, GA 31757 52. North American Mechanical, Inc. 6135 North American Lane 608-241-4328 608-241-2710 De Forest, WI 53532 53. OK Sheet Metal and Air 1801 Art St. 805-589-6713 805-589-4681 Conditioning, Inc. Bakersfield, CA 93312 54. Outbound Services, Inc. 23521 Paseo de Valencia, 949-597-3100 949-597-3154 Ste. 304 Laguna Hills, CA 92653
Schedule 6.16 - Page 4
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 55. Plant Services Incorporated 21220 N. Brady Street 319-386-3239 319-386-0919 Davenport, IA 52804 56. Quality Air Heating & Cooling, 3395 Kraft Avenue, SE 616-956-0200 616-956-7184 Inc. Grand Rapids, MI 49512 57. River City Mechanical, Inc. 5325 Six Mile Court 616-785-1311 616-785-1354 Comstock Park, MI 49321 --- P.O. Box 503 Comstock Park, MI 49321 58. RMC2 Mechanical Systems, Inc. 622 S. Vinewood Street 760-737-7622 760-737-8419 Escondido, CA 92029 59. Ross & Associates, Inc. 125 Miller Dr. 901-664-9348 901-664-9436 Jackson, TN 38301 60. S&K Air Conditioning Co., Inc. 1810 East Park Avenue 912-242-8288 912-242-3713 Valdosta, GA 31602 61. S. I. Goldman Company, Inc. 799 Bennett Dr. 407-830-5000 407-830-5303 Longwood, FL 32750 62. S.M. Lawrence Company, Inc. 245 Preston Street 901-423-0112 901-423-0572 Jackson, TN 38301 63. SA Associates, Inc. (formerly 623 North 1250 West 801-295-0184 801-295-3375 referred to as Salmon & Alder, Centerville, UT 84014 Inc.) 64. Salmon & Alder, LLC 623 North 1250 West 801-295-0184 801-295-3375 Centerville, UT 84014 65. Seasonair, Inc. 16001-A Industrial Drive 301-670-4750 301-670-0113 Gaithersburg, MD 20877 66. Sheren Plumbing & Heating, Inc. 81 US 31 S. 231-943-7916 231-943-9907 Traverse City, MI 49684 67. Southern Bluegrass Mechanical, Inc. 6244 Nashville Blvd. 270-781-0913 270-842-6590 Bowling Green, KY 42101 68. Standard Heating & Air Conditioning 520 8th Street South 205-322-2679 205-322-2913 Company Birmingham, AL 35233-1122 69. Superior Mechanical Systems, Inc. 1455 150th Avenue 510-351-6840 510-481-9224 San Leandro, CA 94578 70. Target Construction, Inc. 901 Northland Drive 616-866-7728 616-866-4269 Rockford, MI 49341 --- P.O. Box 639 Rockford, MI 49341
Schedule 6.16 - Page 5
ENTITY PRINCIPAL BUSINESS PHONE FAX NUMBER NAME OF ENTITY ADDRESS NUMBER NUMBER ------------ ------------------------------------- --------------------------------- ------------------- -------------- 71. Temp-Right Service, Inc. 101 North Catlin 406-728-1111 406-721-2769 Missoula, MT 59801 72. The Capital Refrigeration Company 619 E. Jefferson Street 334-263-0201 334-264-0672 Montgomery, AL 36104 73. Tri-City Mechanical, Inc. 6875 W. Galveston 480-940-8400 480-961-7200 Chandler, AZ 85226 74. Troost Service Co. 2535 Three Mile N.W. 616-735-3535 616-735-1519 Grand Rapids, MI 49544 75. United Environmental Services, L.P. 2500 Market Street 281-837-0777 281-837-1123 (restructure of United Baytown, TX 77520 Environmental Services, Inc./UES Conversion Corporation) 76. Weather Engineering, Inc. 4660 Viewridge Avenue 858-541-1885 858-541-1886 San Diego, CA 92123 77. Western Building Services, Inc. 800 E. 64th Avenue Suite 17 303-429-9219 303-853-0067 Denver, CO 80229 --- Colorado Plumbing Service 970-625-0766 970-625-0776 Operations- 2335 E. 7th St. South, Rifle, CO 81650
Schedule 6.16 - Page 6