Exhibit 10.24


 


Execution Copy


 


FOURTH
AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”)
is made and entered into effective as of December 23, 2004, by and among
COMFORT SYSTEMS USA, INC., a Delaware corporation (“Borrower”); BANK OF TEXAS
NA, as a Lender and as Administrative Agent (“Administrative Agent”); HIBERNIA
NATIONAL BANK, as a Lender and as Documentation Agent; and the Lenders (“Lenders”)
and Guarantors (“Guarantors”) set forth on the signature pages hereto.


 


RECITALS:


 


WHEREAS, Borrower, the Administrative Agent, the Document Agent and the
Lenders entered into an Amended and Restated Credit Agreement dated December 31,
2003, as amended by the First Amendment to Amended and Restated Credit
Agreement dated as of May 12, 2004, the Second Amendment to Amended and
Restated Credit Agreement dated as of June 10, 2004 and the Third
Amendment to Amended and Restated Credit Agreement dated as of June 23,
2004 (the “Credit Agreement”), pursuant to which Borrower amended and
restated the Prior Credit Documents; and


 


WHEREAS, Borrower, Administrative Agent, Document Agent, Lenders and
Guarantors desire to amend the Credit Agreement as herein set forth to
facilitate permitted acquisitions by Borrower.


 


NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


1.                                       Definitions.  Except as otherwise provided below, unless
the context hereof indicates otherwise, all capitalized terms used herein shall
have the same meaning as such capitalized terms are defined in the Credit
Agreement.


 


2.                                       Amendments
to the Credit Agreement.  The Credit
Agreement is, subject to the satisfaction of the conditions precedent set forth
in Section 3 hereof, hereby amended as follows:


 


(a)                                  Definitions.  Article I of the Credit Agreement is
hereby amended by deleting therefrom the definition of “Permitted Investments”
in its entirety and substituting therefor the following:


 





















 


“ ‘Permitted Investments’ means:


 


(a)                                  Cash Equivalents;


 


(b)                                 existing Investments
described in the Disclosure Schedule;


 


(c)                                  extensions of credit
by Restricted Persons to their customers for buying goods and services in the
ordinary course of business or to another Restricted Person in the ordinary
course of business;


 


(d)                                 extensions of credit
among Restricted Persons which are subordinated to the Obligations upon terms
and conditions satisfactory to Required Lenders and the Administrative Agent in
their sole and absolute discretion;


 


(e)                                  Investments by which
Borrower, a newly formed Subsidiary that is a Restricted Person, or an existing
Subsidiary that is a Restricted Person may acquire all or substantially all of
the assets (by way of an asset acquisition or Equity acquisition) of any
Person, provided (x) such Investments are made with internally generated
cash and the aggregate amount paid or payable for (i) any single such
transaction shall not exceed $5,000,000 and (ii) all such transactions during
any Fiscal Year shall not exceed $10,000,000 or (y) such Investments are
Permitted Acquisitions; and


 


(f)                                    Investments not
described in subsections (a) through (e) above which do not (taking into account
all Investments of all Restricted Persons other than Investments described in
subsection (e) above) exceed an aggregate amount of $2,500,000 during any
Fiscal Year.”


 


(b)                                 Section 6.15
is hereby amended in its entirety to read as follows:


 


“Section 6.15.  Guaranties of Borrower’s Subsidiaries.  Each Subsidiary of Borrower now existing and
each Subsidiary, other than an Immaterial Subsidiary, hereafter created,
acquired or coming into existence after the date hereof shall, promptly upon
request by Administrative Agent, execute and deliver to Administrative Agent an
absolute and unconditional guaranty of the timely repayment of the Obligations
and the due and punctual performance of the obligations of Borrower hereunder,
which guaranty shall be satisfactory to Administrative Agent in form and
substance.  Each Subsidiary of Borrower
existing on the date hereof shall duly execute and deliver such a guaranty
prior to the making of any Loan hereunder. 
Upon the creation, acquisition or coming into existence after the date
hereof of any Subsidiary of Borrower other than an Immaterial Subsidiary,
Borrower will promptly deliver written notice of such creation, acquisition or
coming into existence to Administrative Agent and promptly provide to
Administrative Agent all information Administrative Agent may reasonably
request with respect to such Subsidiary. 
Borrower will cause


 





















 


each of its Subsidiaries, other than an Immaterial Subsidiary,
hereafter formed or acquired to deliver to Administrative Agent, simultaneously
with its delivery of such a guaranty, written evidence satisfactory to
Administrative Agent and its counsel that such Subsidiary has taken all
corporate or partnership action necessary to duly approve and authorize its
execution, delivery and performance of such guaranty and any other documents
which it is required to execute.”


 


3.                                       Conditions
Precedent to Effectiveness of Amendment. 
This Amendment shall become effective when, and only when, the
Administrative Agent shall have received counterparts of this Amendment duly
executed by Borrower, Guarantors and the Required Lenders (unless otherwise
indicated) being dated the date hereof, in form and substance reasonably
satisfactory to the Administrative Agent.


 


Borrower agrees to pay promptly after receipt of an invoice therefore
the reasonable fees and expenses of counsel to the Administrative Agent in
connection with the preparation and negotiation of this Amendment and all
documents and instruments contemplated hereby.


 


4.                                       Representations
and Warranties of Borrower.  Borrower
represents and warrants as follows:


 


(a)                                  Borrower and
Guarantors are each duly authorized and empowered to execute, deliver and
perform this Amendment and all other instruments referred to or mentioned
herein to which it is a party, and all action on its part requisite for the due
execution, delivery and the performance of this Amendment has been duly and
effectively taken.


 


(b)                                 After
giving affect to this Amendment, the representations and warranties contained
in the Credit Agreement, as amended hereby, and any other Loan Documents
executed in connection herewith or therewith are true in all material respects
on and as of the date hereof as though made on and as of the date hereof,
except to the extent that such representation or warranty was made as of a
specific date, in which case such representation or warranty was true in all
material respects when made; 


 


(c)                                  After
giving affect to this Amendment, no event has occurred and is continuing which
constitutes a Default; and 


 


(d)                                 When
duly executed and delivered, each of this Amendment and the Credit Agreement
will  be legal and binding obligations of
Borrower, enforceable in accordance with their respective terms, except as
limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors’ rights and by equitable principles of
general application.


 





















 


5.                                       Reference
to and Effect on the Loan Documents.


 


(a)                                  Upon
the effectiveness of this Amendment, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each
reference in the Loan Documents shall mean and be a reference to the Credit
Agreement as amended hereby.


 


(b)                                 Except
as specifically amended above, the Credit Agreement, the Notes, and all other
Loan Documents shall remain in full force and effect and are hereby ratified
and confirmed.  Without limiting the
generality of the foregoing, the Security Documents and all collateral described
therein do and shall continue to secure the payment of all obligations of
Borrower under the Credit Agreement as amended hereby, the Notes, and under the
Security Documents.  


 


(c)                                  The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
Lender under any of the Security Documents, nor constitute a waiver of any
provision of any of the Security Documents.


 


6.                                       Costs
and Expenses.  Borrower agrees to pay
on demand all costs and expenses of Lenders in connection with the preparation,
reproduction, execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, including the reasonable
fees and out-of-pocket expenses of counsel for Lenders.  In addition, Borrower shall pay any and all
fees payable or determined to be payable in connection with the execution and
delivery, filing or recording of this Amendment and the other instruments and
documents to be delivered hereunder, and agrees to save Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such fees.


 


7.                                       Execution
in Counterparts.  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 to be an original and all of which taken together shall constitute but
one and the same instrument.


 


8.                                       Governing
Law.  This Amendment shall be
governed by and construed in accordance with the laws of the State of Texas.


 


9.                                       Final
Agreement.  THIS WRITTEN AMENDMENT REPRESENTS 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.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK]


 





















 


IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed in multiple counterparts, each of which is an original
instrument for all purposes, all as of the day and year first above
written.  


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Gordon Beittenmiller

  	
   

  
	
   

  	
   

  	
  J. Gordon Beittenmiller

  
	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDERS:

  
	
   

  	
   

  
	
   

  	
  BANK OF TEXAS NA,

  
	
   

  	
  Administrative Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HIBERNIA
  NATIONAL BANK,

  
	
   

  	
   

  	
  Documentation Agent,

  
	
   

  	
   

  	
  LC Issuer and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Meiss

  	
   

  
	
   

  	
   

  	
  Michael Meiss

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF SCOTLAND, Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  



 





















 


	
   

  	
  FIRSTCAPITAL BANK, SSB, Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William H. Fowler

  	
   

  
	
   

  	
   

  	
  William H. Fowler

  	
   

  
	
   

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RZB FINANCE LLC, Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST BANK & TRUST, Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael S. Martin

  	
   

  
	
   

  	
   

  	
  Michael S. Martin

  	
   

  
	
   

  	
   

  	
  Vice President

  	
   

  



 





















 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  ACI MECHANICAL,
  INC.

  
	
   

  	
   

  
	
   

  	
  ACI MECHANICAL USA,
  INC.

  
	
   

  	
   

  
	
   

  	
  ARC COMFORT SYSTEMS
  USA,

  INC.

  
	
   

  	
   

  
	
   

  	
  ACCURATE AIR
  SYSTEMS, L.P.,

  
	
   

  	
  by Atlas-Accurate
  Holdings,

  L.L.C.,

  
	
   

  	
  as general partner

  
	
   

  	
   

  
	
   

  	
  ACCU-TEMP GP, INC.

  
	
   

  	
  ACCU-TEMP LP, INC.

  
	
   

  	
   

  
	
   

  	
  AIR TEMP, INC.

  
	
   

  	
   

  
	
   

  	
  ATLAS-ACCURATE
  HOLDINGS,

  L.L.C.,

  
	
   

  	
  by CS53 Acquisition
  Corp.,

  
	
   

  	
  as acting member

  
	
   

  	
   

  
	
   

  	
  ATLAS AIR
  CONDITIONING

  COMPANY, L.P., by

  
	
   

  	
  Atlas-Accurate
  Holdings, L.L.C. as

  general partner

  
	
   

  	
   

  
	
   

  	
  BATCHELOR’S
  MECHANICAL

  CONTRACTORS, INC.

  
	
   

  	
   

  
	
   

  	
  BCM CONTROLS
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  CALIFORNIA COMFORT
  SYSTEMS

  USA, INC.

  
	
   

  	
   

  
	
   

  	
  CEL, INC.

  
	
   

  	
   

  
	
   

  	
  CENTRAL MECHANICAL,
  INC.

  
	
   

  	
   

  
	
   

  	
  CLIMATE CONTROL,
  INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (ARKANSAS), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (BALTIMORE), INC.

  



 





















 


	
   

  	
  COMFORT SYSTEMS USA

  (BOWLING GREEN), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (BRISTOL), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (CLEVELAND), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (FLORIDA), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA
  G.P.,

  INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (HARTFORD), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (INTERMOUNTAIN), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  NATIONAL ACCOUNTS, LLC,

  
	
   

  	
  by Accu-Temp LP,
  Inc., as acting

  member

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (SYRACUSE), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (TEXAS), L.P.,

  
	
   

  	
  by Comfort Systems
  USA G.P.,

  Inc.,

  
	
   

  	
  as general partner

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA
  (TWIN

  CITIES), INC.

  
	
   

  	
   

  
	
   

  	
  COMFORT SYSTEMS USA

  (WESTERN MICHIGAN), INC.

  
	
   

  	
   

  
	
   

  	
  CS44 ACQUISITION
  CORP.

  
	
   

  	
   

  
	
   

  	
  CS53 ACQUISITION
  CORP.

  
	
   

  	
   

  
	
   

  	
  DESIGN MECHANICAL

  INCORPORATED

  



 





















 


	
   

  	
  EASTERN HEATING
  & COOLING,

  INC.

  
	
   

  	
   

  
	
   

  	
  ESS ENGINEERING,
  INC.

  
	
   

  	
   

  
	
   

  	
  GULFSIDE
  MECHANICAL, INC.

  
	
   

  	
   

  
	
   

  	
  H & M
  MECHANICAL, INC.

  
	
   

  	
   

  
	
   

  	
  HELM CORPORATION

  
	
   

  	
   

  
	
   

  	
  HESS MECHANICAL

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  INDUSTRIAL COOLING
  INC.

  
	
   

  	
   

  
	
   

  	
  J & J
  MECHANICAL, INC.

  
	
   

  	
   

  
	
   

  	
  JAMES AIR
  CONDITIONING

  ENTERPRISE INC.

  
	
   

  	
   

  
	
   

  	
  MARTIN HEATING,
  INC.

  
	
   

  	
   

  
	
   

  	
  MECHANICAL SERVICE
  GROUP,

  INC.

  
	
   

  	
   

  
	
   

  	
  MECHANICAL
  TECHNICAL

  SERVICES, L.P.,

  
	
   

  	
  by Atlas-Accurate
  Holdings,

  L.L.C.,

  
	
   

  	
  as general partner

  
	
   

  	
   

  
	
   

  	
  MJ MECHANICAL
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  NEEL MECHANICAL

  CONTRACTORS, INC.

  
	
   

  	
   

  
	
   

  	
  NORTH AMERICAN
  MECHANICAL,

  INC.

  
	
   

  	
   

  
	
   

  	
  QUALITY AIR HEATING
  &

  COOLING, INC.

  
	
   

  	
   

  
	
   

  	
  S&K AIR
  CONDITIONING CO., INC.

  
	
   

  	
   

  
	
   

  	
  S. I. GOLDMAN
  COMPANY, INC.

  



 





















 


	
   

  	
  S.M. LAWRENCE
  COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
  SA ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
  SALMON & ALDER,
  LLC,

  
	
   

  	
  by SA Associates,
  Inc. as acting

  member

  
	
   

  	
   

  
	
   

  	
  SEASONAIR, INC.

  
	
   

  	
   

  
	
   

  	
  SHEREN PLUMBING
  & HEATING,

  INC.

  
	
   

  	
   

  
	
   

  	
  TARGET
  CONSTRUCTION, INC.

  
	
   

  	
   

  
	
   

  	
  TEMP-RIGHT SERVICE,
  INC.

  
	
   

  	
   

  
	
   

  	
  THE CAPITAL
  REFRIGERATION

  COMPANY

  
	
   

  	
   

  
	
   

  	
  TRI-CITY
  MECHANICAL, INC.

  
	
   

  	
   

  
	
   

  	
  UNITED
  ENVIRONMENTAL

  SERVICES, L.P.,

  
	
   

  	
  by Atlas-Accurate
  Holdings,

  L.L.C.,

  
	
   

  	
  as general partner

  
	
   

  	
   

  
	
   

  	
  WESTERN BUILDING
  SERVICES,

  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J. Gordon
  Beittenmiller

  	
   

  
	
   

  	
   

  	
  J.
  GORDON

  	
   

  
	
   

  	
  BEITTENMILLER,

  	
   

  
	
   

  	
   

  	
  Vice
  President and Assistant 

  	
   

  
	
   

  	
  Secretary