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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
---------------------
HOLOPHANE CORPORATION
(Name of Subject Company)
NSI ENTERPRISES, INC.
NATIONAL SERVICE INDUSTRIES, INC.
(Bidders)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
43645B10
(CUSIP Number of Class of Securities)
KENYON W. MURPHY, ESQ.
VICE PRESIDENT AND ASSOCIATE COUNSEL
NATIONAL SERVICE INDUSTRIES, INC.
NSI CENTER
1420 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309-3002
TELEPHONE: (404) 853-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
COPY TO:
RUSSELL B. RICHARDS, ESQ.
KING & SPALDING
191 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
TELEPHONE: (404) 572-4600
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[X] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
AMOUNT PREVIOUSLY PAID:
$94,165
FORM OR REGISTRATION NO.:
Schedule 14D-1
FILING PARTY:
National Service Industries, Inc. and NSI Enterprises, Inc.
DATE FILED:
June 25, 1999
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This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed with the Securities and Exchange Commission (the
"Commission") on June 25, 1999 and as amended and supplemented on July 9, 1999
(as amended and supplemented, the "Schedule 14D-1) relating to the offer by NSI
Enterprises, Inc., a Delaware corporation (the "Purchaser") and a wholly owned
subsidiary of National Service Industries, Inc., a Delaware corporation
("Parent"), to purchase all of the outstanding shares of common Stock, $.01 par
value per share (the "Shares"), of Holophane Corporation, a Delaware corporation
(the "Company"), at a price of $38.50 per Share, net to the seller in cash, less
any required withholding taxes and without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated June 25, 1999
(the "Offer to Purchase") and in the related Letter of Transmittal. Unless
otherwise indicated, all capitalized terms used but not defined herein shall
have the meanings assigned to them in the Schedule 14D-1.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 of Schedule 14D-1 is hereby amended and supplemented as follows:
On July 16, 1999, Parent entered into dealer agreements with Goldman, Sachs
& Co. ("Goldman Sachs"), J.P. Morgan Securities Inc. ("JP Morgan") and Wachovia
Securities, Inc. ("Wachovia"), respectively, pursuant to which each of Goldman
Sachs, JP Morgan and Wachovia have agreed to act as dealers for the private
placement of commercial paper and other short term indebtedness which Parent
intends to issue in connection with the Offer. Such dealer agreements are
attached hereto as exhibits (b)(4), (b)(5) and (b)(6), respectively, and are
hereby incorporated by reference. On July 16, 1999, Parent also entered into an
Issuing and Paying Agent Agreement with The First National Bank of Chicago
("FNBC") pursuant to which FNBC has agreed to act as agent in connection with
the issuance and payment of the foregoing commercial paper and short term
indebtedness. Such agreement is attached hereto as exhibit (b)(7) and is hereby
incorporated by reference. The commercial paper and other short term
indebtedness which Parent intends to issue is expected to be unsecured and is
expected to have maturities not exceeding 366 days from the date of issuance and
bear interest at prevailing market rates.
Parent previously disclosed that it had received commitment letters from
FNBC, Banc One Capital Markets, Inc. and Wachovia Capital Markets, Inc. (the
"New Banks"), for a 364-day loan facility pursuant to which the New Banks had
agreed to lend to Parent and/or one or more of its affiliates up to $250
million. On July 15, 1999, Parent executed a credit agreement with Wachovia
Bank, N.A., FNBL, Banc One Capital Markets, Inc., Wachovia Securities, Inc.,
Commerzbank AG, New York Branch, ABN Amro, N.V. and the other banks listed
therein (the "Lenders").
The New Facility will expire on July 13, 2000. Borrowings under the New
Facility bear interest at one of the following: (i) a base rate (greater of the
prime rate or the federal funds rate plus 50 basis points); (ii) a rate based on
LIBOR divided by one minus the percentage prescribed by the Board of Governors
of the Federal Reserve System for determining the maximum reserve requirement
for a member bank of the Federal Reserve System in respect of "Eurocurrency
Liabilities;" or (iii) a rate based on a quote delivered by the lending bank at
the time of borrowing by Parent or one of its affiliates.
The foregoing description of the New Facility is qualified in its entirety
by reference to the New Facility, a copy of which is attached hereto as exhibits
(b)(8) and is hereby incorporated by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented to add the following:
(b)(4) Commercial Paper Dealer Agreement, dated as of July 16, 1999,
between Parent and Goldman, Sachs & Co.
(b)(5) Commercial Paper Dealer Agreement, dated as of July 16, 1999,
between Parent and J.P. Morgan Securities Inc.
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(b)(6) Commercial Paper Dealer Agreement, dated as of July 16, 1999,
between Parent and Wachovia Securities, Inc.
(b)(7) Issuing and Paying Agent Agreement, dated as of July 16, 1999,
between Parent and The First National Bank of Chicago.
(b)(8) Credit Agreement, dated as of July 15, 1999, among Parent,
Wachovia Bank, N.A., The First National Bank of Chicago, Banc One Capital
Markets, Inc., Wachovia Securities, Inc., Commerzbank AG, New York Branch,
ABN Amro, N.V. and the other banks listed therein.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ JAMES S. BALLOUN
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Name: James S. Balloun
Title: Chairman of the Board,
President and Chief Executive
Officer
NSI ENTERPRISES, INC.
By: /s/ JAMES S. BALLOUN
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Name: James S. Balloun
Title: Chairman of the Board,
President and Chief Executive
Officer
Date: July 20, 1999
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
- ------- DESCRIPTION
<C> <C> <S>
(b)(4) -- Commercial Paper Dealer Agreement, dated as of July 16,
1999, between Parent and Goldman, Sachs & Co.
(b)(5) -- Commercial Paper Dealer Agreement, dated as of July 16,
1999, between Parent and J.P. Morgan Securities Inc.
(b)(6) -- Commercial Paper Dealer Agreement, dated as of July 16,
1999, between Parent and Wachovia Securities, Inc.
(b)(7) -- Issuing and Paying Agent Agreement, dated as of July 16,
1999, between Parent and The First National Bank of Chicago.
(b)(8) -- Credit Agreement, dated as of July 15, 1999, among Parent,
Wachovia Bank, N.A., The First National Bank of Chicago,
Banc One Capital Markets, Inc., Wachovia Securities, Inc.,
Commerzbank AG, New York Branch, ABN Amro, N.V. and the
other banks listed therein.
</TABLE>
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COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
BETWEEN
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
AND
GOLDMAN, SACHS & CO., AS DEALER
CONCERNING NOTES TO BE ISSUED PURSUANT TO AN
ISSUING AND PAYING AGENCY AGREEMENT
DATED AS OF JULY 16, 1999
BETWEEN THE ISSUER AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ISSUING AND PAYING AGENT
DATED AS OF
JULY 16, 1999
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COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term promissory notes pursuant
to the Issuing and Paying Agency Agreement dated as of July 16, 1999 between the
Issuer and The First National Bank of Chicago, as Issuing and Paying Agent (the
"Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell
the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes
for the account of the Issuer, and (ii) the Dealer has and shall have no
obligation to purchase the Notes from the Issuer or to arrange any sale of the
Notes for the account of the Issuer, the parties hereto agree that in any case
where the Dealer purchases Notes from the Issuer, or arranges for the sale of
Notes by the Issuer, such Notes will be purchased or sold in reliance on the
representations, warranties, covenants and agreements of the parties contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in
addition to the limitations contained in Section 1.7 hereof, the Issuer shall
not, without the consent of the Dealer (which consent shall not be unreasonably
withheld), offer, solicit or accept offers to purchase, or sell, any Notes
except (a) in transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 366 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement,
and the Notes shall be either individual physical certificates or book-entry
notes evidenced by a Master Note registered in the name of DTC or its nominee,
in the form or forms annexed to the Issuing and Paying Agency Agreement.
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1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to
observe the following procedures in connection with offers, sales and subsequent
resales or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the
Dealer shall be made only to: (i) investors reasonably believed by the
Dealer to be Qualified Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited Investors and (ii)
non-bank fiduciaries or agents that will be purchasing Notes for one or
more accounts, each of which is reasonably believed by the Dealer to be
an Institutional Accredited Investor or Sophisticated Individual
Accredited Investor.
(b) Resales and other transfers of the Notes by the
holders thereof shall be made only in accordance with the restrictions
in the legend described in clause (e) below.
(c) No general solicitation or general advertising shall
be used in connection with the offering of the Notes. Without limiting
the generality of the foregoing, without the prior written approval of
the Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for
less than $250,000 principal or face amount, and no Note shall be
issued in a smaller principal or face amount. If the purchaser is a
non-bank fiduciary acting on behalf of others, each person for whom
such purchaser is acting must purchase at least $250,000 principal or
face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through
the Dealer acting as agent for the Issuer shall be made in accordance
with Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry Notes
offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the Dealer a copy of
the then-current Private Placement Memorandum unless
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such purchaser has previously received a copy of the Private Placement
Memorandum as then in effect. The Private Placement Memorandum shall
expressly state that any person to whom Notes are offered shall have an
opportunity to ask questions of, and receive information from, the
Issuer and the Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom information regarding the
Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and
each of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered
by the Dealer would be ineligible for resale under Rule 144A, the
Issuer shall immediately notify the Dealer (by telephone, confirmed in
writing) of such fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the Private Placement Memorandum
describing the Notes that are ineligible, the reason for such
ineligibility and any other relevant information relating thereto.
(i) The Issuer represents that it is not currently
issuing commercial paper in the United States market in reliance upon
the exemption provided by Section 3(a)(3) of the Securities Act. In the
event that the Issuer determines to issue commercial paper in the
United States market in reliance on such exemption, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute appropriate
corporate procedures to ensure that the offers and sales of notes
issued by the Issuer pursuant to the Section 3(a)(3) exemption are not
integrated with offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of Section 3(a)(3) of
the Act in selling commercial paper or other short-term debt securities
other than the Notes in the United States.
(j) The Issuer hereby agrees that, not later than 15 days
after the first sale of Notes as contemplated by this Agreement, it
will file with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and that it will thereafter file such
amendments to such notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers referred to in
Section 1.2 hereof. The Issuer also agrees that (except as permitted by
Section 1.6(i)), as long as the Notes are being offered for sale by the
Dealer and the other dealers referred to in Section 1.2 hereof as
contemplated hereby and until at least six months after the offer of
Notes hereunder has been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof (except as contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the Issuer for sale to,
or solicit offers to buy any such security from, any person other than
the Dealer
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or the other dealers referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to bringing the
offer and sale of the Notes within the exemption provided by Section
4(2) of the Securities Act and Rule 506 thereunder and shall survive
any termination of this Agreement. The Issuer hereby represents and
warrants that it has not taken or omitted to take, and will not take or
omit to take, any action that would cause the offering and sale of
Notes hereunder to be integrated with any other offering of securities,
whether such offering is made by the Issuer or some other party or
parties.
(b) In the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such purchase,
to the extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such Notes either (i)
only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A or (ii) in a manner which would not cause a
violation of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all the requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes, this Agreement and
the Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement
have been duly authorized, executed and delivered by the Issuer and constitute
legal, valid and binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except insofar as
rights to indemnification and contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued as
provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and will constitute legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
2.4 The offer and sale of Notes in the manner contemplated hereby
do not require registration of the Notes under the Securities Act, pursuant to
the exemption from registration contained in Section 4(2) thereof and Regulation
D thereunder, and no indenture in respect of the Notes is required to be
qualified under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of,
or filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to be obtained by
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the Issuer to authorize, or is otherwise required to be obtained by the Issuer
in connection with the execution, delivery or performance of, this Agreement,
the Notes or the Issuing and Paying Agency Agreement, except as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or a default under any of the
terms of the Issuer's charter documents or by-laws, any contract or instrument
to which the Issuer is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Issuer is subject or by which it or its
property is bound, which breach or default might reasonably be expected to have
a material adverse effect on the financial condition, operations or prospective
financial condition of the Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.8 There is no litigation or governmental proceeding pending, or
to the knowledge of the Issuer threatened, against or affecting the Issuer or
any of its subsidiaries which might reasonably be expected to result in a
material adverse change in the financial condition, operations or prospective
financial condition of the Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.9 The Issuer is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, providing that the Issuer makes no representation or warranty as to
Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the financial condition, operations or prospective financial condition
of the Issuer which has not been disclosed in the Company Information.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
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3.1 The Issuer will give the Dealer prompt notice (but in any
event prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's financial condition, operations or prospective financial condition or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may
reasonably request to ensure that each offer and each sale of the Notes will
comply with any applicable state Blue Sky laws; provided, however, that the
Issuer shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until the Dealer
shall have received (a) an opinion of counsel to the Issuer, addressed to the
Dealer, satisfactory in form and substance to the Dealer, (b) a copy of the
executed Issuing and Paying Agency Agreement as then in effect, (c) a copy of
resolutions adopted by the Board of Directors of the Issuer, satisfactory in
form and substance to the Dealer and certified by the Secretary, an Assistant
Secretary or similar officer of the Issuer, authorizing execution and delivery
by the Issuer of this Agreement, the Issuing and Paying Agency Agreement and the
Notes and consummation by the Issuer of the transactions contemplated hereby and
thereby, (d) prior to the issuance of any Notes represented by a book-entry note
registered in the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and DTC and (e)
such other certificates, opinions, letters and documents as the Dealer shall
have reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses incurred in
connection with its preparation and negotiation, and the transactions
contemplated hereby (including, but not limited to, the printing and
distribution of the Private Placement Memorandum), and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's counsel, not to
exceed $5000.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than
the Dealer Information) shall be the sole responsibility of the Issuer. The
Private Placement Memorandum shall contain a statement
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expressly offering an opportunity for each prospective purchaser to ask
questions of, and receive answers from, the Issuer concerning the offering of
Notes and to obtain relevant additional information which the Issuer possesses
or can acquire without unreasonable effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes publicly available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly
upon the occurrence of any event relating to or affecting the Issuer that would
cause the Company Information then in existence to include an untrue statement
of a material fact or to omit to state a material fact necessary in order to
make the statements contained therein, in light of the circumstances under which
they are made, not misleading.
(b) In the event that the Issuer gives the Dealer notice
pursuant to Section 4.3(a) and the Dealer notifies the Issuer that it then has
Notes it is holding in inventory, (i) the Issuer agrees promptly to supplement
or amend the Private Placement Memorandum so that the Private Placement
Memorandum, as amended or supplemented, shall not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and the Issuer shall make such supplement or amendment available
to the Dealer, or (ii) if the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum, the Dealer shall have the right to resell to
the Issuer any such Notes held in inventory at a price equal to (a) the
principal amount thereof plus accrued and unpaid interest thereon, in the case
of an interest-bearing Note, or (b) the face amount thereof discounted on a
ratable basis based on the Issuer's market rate reflecting the remaining period
until maturity in relation to the original term, in the case of such Note issued
on a discount basis.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer.
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any written information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the Dealer's gross negligence or willful
misconduct.
8
<PAGE> 9
5.2 Provisions relating to claims made for indemnification under
this Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum (other than the Dealer Information) together with, to the
extent applicable, (i) the Issuer's most recent report on Form 10-K filed with
the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the Issuer's other
publicly available reports, including, but not limited to, any publicly
available filings or reports provided to its shareholders, (iv) any other
information or disclosure prepared pursuant to Section 4.3 hereof and (v) any
information prepared or approved by the Issuer for dissemination to investors or
potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an
institutional investor that is an accredited investor within the meaning of Rule
501 under the Securities Act and that has such knowledge and experience in
financial and business matters that it is capable of evaluating and bearing the
economic risk of an investment in the Notes, including, but not limited to, a
bank, as defined in Section 3(a)(2) of the Securities Act, or a savings and loan
association or other institution, as defined in Section 3(a)(5)(A) of the
Securities Act, whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing
and paying agency agreement described on the cover page of this Agreement, as
such agreement may be amended or supplemented from time to time.
9
<PAGE> 10
6.9 "Issuing and Paying Agent" shall mean the party designated as
such on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning
assigned to that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.)
under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under
this Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
conflict of laws provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought
by the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
10
<PAGE> 11
7.4 This Agreement may be terminated, at any time, by the Issuer,
upon one business day's prior notice to such effect to the Dealer, or by the
Dealer upon one business day's prior notice to such effect to the Issuer. Any
such termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto
without the written consent of the other party; provided, however, that the
Dealer may assign its rights and obligations under this Agreement to any
affiliate of the Dealer.
7.6 This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties
hereto, and their respective permitted successors and assigns hereunder, and
shall not be deemed to give any legal or equitable right, remedy or claim to any
other person whatsoever.
----------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
By: /s/ CHESTER J. POPKOWSKI
-----------------------------------------
Name: CHESTER J. POPKOWSKI
Title: Vice President and Treasurer
GOLDMAN, SACHS & CO., AS DEALER
By: /s/ W.R. HARRISON
-----------------------------------------
Authorized Signatory
11
<PAGE> 1
Exhibit (b)(5)
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
BETWEEN
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
AND
J.P. MORGAN SECURITIES INC., AS DEALER
CONCERNING NOTES TO BE ISSUED PURSUANT TO AN
ISSUING AND PAYING AGENCY AGREEMENT
DATED AS OF JULY 16, 1999
BETWEEN THE ISSUER AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ISSUING AND PAYING AGENT
DATED AS OF
JULY 16, 1999
<PAGE> 2
This agreement ("Agreement") sets forth the understandings between the
Issuer and the Dealer, each named on the cover page hereof, in connection with
the issuance and sale by the Issuer of its short-term promissory notes pursuant
to the Issuing and Paying Agency Agreement dated as of July 16, 1999 between the
Issuer and The First National Bank of Chicago, as Issuing and Paying Agent (the
"Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold in reliance on the representations,
warranties, covenants and agreements of the parties contained herein or made
pursuant hereto and on the terms and conditions and in the manner provided
herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer (which consent shall not be unreasonably
withheld), offer, solicit or accept offers to purchase, or sell, any Notes
except (a) in transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 366 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement,
and the Notes shall be either individual physical certificates or book-entry
notes evidenced by a Master Note registered in the
<PAGE> 3
name of DTC or its nominee, in the form or forms annexed to the Issuing and
Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed by the Dealer
to be Qualified Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited Investors and (ii)
non-bank fiduciaries or agents that will be purchasing Notes for one or
more accounts, each of which is reasonably believed by the Dealer to be
an Institutional Accredited Investor or Sophisticated Individual
Accredited Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legend described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of the
Dealer, the Issuer shall not issue any press release or place or
publish any "tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued in
a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person
- ----------
If the form or forms of Notes are not annexed to the Issuing and Paying Agency
Agreement, they should be annexed to this Agreement or delivered to the Dealer,
with appropriate certification by the Secretary of the Issuer, pursuant to
section 3.6 of the Agreement.
<PAGE> 4
for whom such purchaser is acting must purchase at least $250,000
principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with
Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers
and sales of Notes hereunder, as well as on each individual certificate
representing a Note and each Master Note representing book-entry Notes
offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to each
purchaser of Notes for which it has acted as the Dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has
previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that
any person to whom Notes are offered shall have an opportunity to ask
questions of, and receive information from, the Issuer and the Dealer
and shall provide the names, addresses and telephone numbers of the
persons from whom information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each
of the holders and prospective purchasers from time to time of the
Notes that, if at any time the Issuer shall not be subject to Section
13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request
and at its expense, to the Dealer and to holders and prospective
purchasers of Notes information required by Rule 144A(d)(4)(i) in
compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the
Dealer would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify the Dealer (by telephone, confirmed in writing) of
such fact and shall promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement Memorandum describing
the Notes that are ineligible, the reason for such ineligibility and
any other relevant information relating thereto.
(i) The Issuer represents that it is not currently issuing
commercial paper in the United States market in reliance upon the
exemption provided by Section 3(a)(3) of the Securities Act. In the
event that the Issuer determines to issue commercial paper in the
United States market in reliance on such exemption, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute appropriate
corporate procedures to ensure that the offers and sales of notes
issued by the Issuer pursuant to the Section 3(a)(3) exemption are not
integrated with offerings and sales of Notes hereunder; and (c) the
Issuer will comply with each of the requirements of Section 3(a)(3) of
the Act in selling commercial paper or other short-term debt securities
other than the Notes in the United States.
<PAGE> 5
(j) The Issuer hereby agrees that, not later than 15 days
after the first sale of Notes as contemplated by this Agreement, it
will file with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and that it will thereafter file such
amendments to such notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of the
Issuer (including, without limitation, medium-term notes issued by the
Issuer), to, or solicited offers to buy any such security from, any
person other than the Dealer or the other dealers referred to in
Section 1.2 hereof. The Issuer also agrees that (except as permitted by
Section 1.6(i)), as long as the Notes are being offered for sale by the
Dealer and the other dealers referred to in Section 1.2 hereof as
contemplated hereby and until at least six months after the offer of
Notes hereunder has been terminated, neither the Issuer nor any person
other than the Dealer or the other dealers referred to in Section 1.2
hereof (except as contemplated by Section 1.2 hereof) will offer the
Notes or any substantially similar security of the Issuer for sale to,
or solicit offers to buy any such security from, any person other than
the Dealer or the other dealers referred to in Section 1.2 hereof, it
being understood that such agreement is made with a view to bringing
the offer and sale of the Notes within the exemption provided by
Section 4(2) of the Securities Act and Rule 506 thereunder and shall
survive any termination of this Agreement. The Issuer hereby represents
and warrants that it has not taken or omitted to take, and will not
take or omit to take, any action that would cause the offering and sale
of Notes hereunder to be integrated with any other offering of
securities, whether such offering is made by the Issuer or some other
party or parties.
(b) In the event that the Dealer purchases Notes as principal
and does not resell such Notes on the day of such purchase, to the
extent necessary to comply with Regulation T and the interpretations
thereunder, the Dealer will sell such Notes either (i) only to offerees
it reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A or
(ii) in a manner which would not cause a violation of Regulation T and
the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly incorporated, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
all the requisite corporate power and authority to execute, deliver and perform
its obligations under the Notes, this Agreement and the Issuing and Paying
Agency Agreement.
<PAGE> 6
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except insofar as
rights to indemnification and contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued as provided in
the Issuing and Paying Agency Agreement, will be duly and validly issued and
will constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof and Regulation D
thereunder, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of, or
filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to be obtained by the Issuer to
authorize, or is otherwise required to be obtained by the Issuer in connection
with the execution, delivery or performance of, this Agreement, the Notes or the
Issuing and Paying Agency Agreement, except as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or a default under any of the
terms of the Issuer's charter documents or by-laws, any contract or instrument
to which the Issuer is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which the Issuer is subject or by which it or its
property is bound, which breach or default might reasonably be expected to have
a material adverse effect on the financial condition, operations or prospective
financial condition of the Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of
<PAGE> 7
the Issuer threatened, against or affecting the Issuer or any of its
subsidiaries which might reasonably be expected to result in a material adverse
change in the financial condition, operations or prospective financial condition
of the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, providing that the Issuer makes no representation or warranty as to
Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the financial condition, operations or prospective financial condition
of the Issuer which has not been disclosed in the Company Information.
<PAGE> 8
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's financial condition, operations or prospective financial condition or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary, an Assistant Secretary
or similar officer of the Issuer, authorizing execution and delivery by the
Issuer of this Agreement, the Issuing and Paying Agency Agreement and the Notes
and consummation by the Issuer of the transactions contemplated hereby and
thereby, (d) prior to the issuance of any Notes represented by a book-entry note
registered in the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and DTC and (e)
such other certificates, opinions, letters and documents as the Dealer shall
have reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses incurred in
connection with its
<PAGE> 9
preparation and negotiation, and the transactions contemplated hereby
(including, but not limited to, the printing and distribution of the Private
Placement Memorandum), and, if applicable, for the reasonable fees and
out-of-pocket expenses of the Dealer's counsel not to exceed $5,000.
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes publicly available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant
to Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it
is holding in inventory, (i) the Issuer agrees promptly to supplement or amend
the Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer, or (ii) if the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum, the Dealer shall have the right to resell to
the Issuer any such Notes held in inventory at a price equal to (a) the
principal amount thereof plus accrued and unpaid interest thereon, in the case
of an interest-bearing Note, or (b) the face amount thereof discounted on a
ratable basis based on the Issuer's market rate reflecting the remaining period
until maturity in relation to the original term, in the case of such Note issued
on a discount basis.
(c) In the event that (i) the Issuer gives the Dealer notice
pursuant to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it
is then holding Notes in inventory and (iii) the Issuer chooses not to promptly
amend or supplement the Private Placement Memorandum in the manner described in
clause (b) above, then all solicitations and sales of Notes shall be suspended
until such time as the Issuer has so amended or supplemented the Private
Placement Memorandum, and made such amendment or supplement available to the
Dealer.
<PAGE> 10
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any written information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the Dealer's gross negligence or willful
misconduct.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum (other than the Dealer Information) together with, to the
extent applicable, (i) the Issuer's most recent report on Form 10-K filed with
the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the Issuer's other
publicly available
<PAGE> 11
reports, including, but not limited to, any publicly available filings or
reports provided to its shareholders, (iv) any other information or disclosure
prepared pursuant to Section 4.3 hereof and (v) any information prepared or
approved by the Issuer for dissemination to investors or potential investors in
the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
<PAGE> 12
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer, upon
one business day's prior notice to such effect to the Dealer, or by the Dealer
upon one business day's prior notice to such effect to the Issuer. Any such
termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without the
written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
<PAGE> 13
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto,
and their respective permitted successors and assigns hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
By: /s/ Chester J. Popkowski
----------------------------------------
Name: Chester J. Popkowski
Title: Vice President and Treasurer
J.P. MORGAN SECURITIES INC., AS DEALER
By: /s/ Hunter Brown
----------------------------------------
Authorized Signatory
<PAGE> 1
Exhibit (b)(6)
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
BETWEEN
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
AND
WACHOVIA SECURITIES, INC., AS DEALER
CONCERNING NOTES TO BE ISSUED PURSUANT TO AN
ISSUING AND PAYING AGENCY AGREEMENT
DATED AS OF JULY 16, 1999
BETWEEN THE ISSUER AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ISSUING AND PAYING AGENT
DATED AS OF
JULY 16, 1999
<PAGE> 2
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
This agreement ("Agreement") sets forth the understandings between
the Issuer and the Dealer, each named on the cover page hereof, in connection
with the issuance and sale by the Issuer of its short-term promissory notes
pursuant to the Issuing and Paying Agency Agreement dated as of July 16, 1999
between the Issuer and The First National Bank of Chicago, as Issuing and Paying
Agent (the "Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold in reliance on the representations,
warranties, covenants and agreements of the parties contained herein or made
pursuant hereto and on the terms and conditions and in the manner provided
herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer (which consent shall not be unreasonably
withheld), offer, solicit or accept offers to purchase, or sell, any Notes
except (a) in transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 366 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
<PAGE> 3
1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement,
and the Notes shall be either individual physical certificates or book-entry
notes evidenced by a Master Note registered in the name of DTC or its nominee,
in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe
the following procedures in connection with offers, sales and subsequent resales
or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed by the
Dealer to be Qualified Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited Investors and (ii)
non-bank fiduciaries or agents that will be purchasing Notes for one
or more accounts, each of which is reasonably believed by the Dealer
to be an Institutional Accredited Investor or Sophisticated
Individual Accredited Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legend described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting
the generality of the foregoing, without the prior written approval
of the Dealer, the Issuer shall not issue any press release or place
or publish any "tombstone" or other advertisement relating to the
Notes.
- --------
If the form or forms of Notes are not annexed to the Issuing and Paying Agency
Agreement, they should be annexed to this Agreement or delivered to the Dealer,
with appropriate certification by the Secretary of the Issuer, pursuant to
section 3.6 of the Agreement.
<PAGE> 4
(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued
in a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance
with Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with
offers and sales of Notes hereunder, as well as on each individual
certificate representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the Dealer a copy
of the then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private Placement
Memorandum as then in effect. The Private Placement Memorandum shall
expressly state that any person to whom Notes are offered shall have
an opportunity to ask questions of, and receive information from, the
Issuer and the Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom information regarding the
Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and
each of the holders and prospective purchasers from time to time of
the Notes that, if at any time the Issuer shall not be subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will furnish,
upon request and at its expense, to the Dealer and to holders and
prospective purchasers of Notes information required by Rule
144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by
the Dealer would be ineligible for resale under Rule 144A, the Issuer
shall immediately notify the Dealer (by telephone, confirmed in
writing) of such fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the Private Placement Memorandum
describing the Notes that are ineligible, the reason for such
ineligibility and any other relevant information relating thereto.
(i) The Issuer represents that it is not currently issuing
commercial paper in the United States market in reliance upon the
exemption provided by Section 3(a)(3) of the Securities Act. In the
event that the Issuer determines to issue commercial paper in the
United States market in reliance on such exemption, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute
appropriate corporate procedures to ensure that the offers and sales
of notes issued by the Issuer pursuant to the Section 3(a)(3)
exemption are not integrated with
<PAGE> 5
offerings and sales of Notes hereunder; and (c) the Issuer will
comply with each of the requirements of Section 3(a)(3) of the Act in
selling commercial paper or other short-term debt securities other
than the Notes in the United States.
(j) The Issuer hereby agrees that, not later than 15 days
after the first sale of Notes as contemplated by this Agreement, it
will file with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and that it will thereafter file such
amendments to such notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of
the Issuer (including, without limitation, medium-term notes issued
by the Issuer), to, or solicited offers to buy any such security
from, any person other than the Dealer or the other dealers referred
to in Section 1.2 hereof. The Issuer also agrees that (except as
permitted by Section 1.6(i)), as long as the Notes are being offered
for sale by the Dealer and the other dealers referred to in Section
1.2 hereof as contemplated hereby and until at least six months after
the offer of Notes hereunder has been terminated, neither the Issuer
nor any person other than the Dealer or the other dealers referred to
in Section 1.2 hereof (except as contemplated by Section 1.2 hereof)
will offer the Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such security from,
any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof, it being understood that such agreement is made
with a view to bringing the offer and sale of the Notes within the
exemption provided by Section 4(2) of the Securities Act and Rule 506
thereunder and shall survive any termination of this Agreement. The
Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that
would cause the offering and sale of Notes hereunder to be integrated
with any other offering of securities, whether such offering is made
by the Issuer or some other party or parties.
(b) In the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such purchase,
to the extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such Notes either
(i) only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A or (ii) in a manner which would not cause a
violation of Regulation T and the interpretations thereunder.
<PAGE> 6
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all the requisite corporate power and authority to execute, deliver and
perform its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except insofar as
rights to indemnification and contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued as provided
in the Issuing and Paying Agency Agreement, will be duly and validly issued and
will constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof and Regulation D
thereunder, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of, or
filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to be obtained by the Issuer to
authorize, or is otherwise required to be obtained by the Issuer in connection
with the execution, delivery or performance of, this Agreement, the Notes or the
Issuing and Paying Agency Agreement, except as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or a default under any of the
terms of the Issuer's charter documents
<PAGE> 7
or by-laws, any contract or instrument to which the Issuer is a party or by
which it or its property is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality, to which the
Issuer is subject or by which it or its property is bound, which breach or
default might reasonably be expected to have a material adverse effect on the
financial condition, operations or prospective financial condition of the Issuer
or the ability of the Issuer to perform its obligations under this Agreement,
the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of the Issuer threatened, against or affecting the Issuer or any
of its subsidiaries which might reasonably be expected to result in a material
adverse change in the financial condition, operations or prospective financial
condition of the Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, providing that the Issuer makes no representation or warranty as to
Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the financial condition, operations or prospective financial condition
of the Issuer which has not been disclosed in the Company Information.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of
<PAGE> 8
any such amendment, modification or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's financial condition, operations or prospective financial condition or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary, an Assistant Secretary
or similar officer of the Issuer, authorizing execution and delivery by the
Issuer of this Agreement, the Issuing and Paying Agency Agreement and the Notes
and consummation by the Issuer of the transactions contemplated hereby and
thereby, (d) prior to the issuance of any Notes represented by a book-entry note
registered in the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and DTC and (e)
such other certificates, opinions, letters and documents as the Dealer shall
have reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses incurred in
connection with its preparation and negotiation, and the transactions
contemplated hereby (including, but not limited to, the printing and
distribution of the Private Placement Memorandum), and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's counsel, not to
exceed $5,000.
<PAGE> 9
Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes publicly available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, (i) the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer, or (ii) if the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum, the Dealer shall have the right to resell to
the Issuer any such Notes held in inventory at a price equal to (a) the
principal amount thereof plus accrued and unpaid interest thereon, in the case
of an interest-bearing Note, or (b) the face amount thereof discounted on a
ratable basis based on the Issuer's market rate reflecting the remaining period
until maturity in relation to the original term, in the case of such Note issued
on a discount basis.
(c) In the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is then
holding Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to the Dealer.
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
<PAGE> 10
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any written information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the Dealer's gross negligence or willful
misconduct.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum (other than the Dealer Information) together with, to the
extent applicable, (i) the Issuer's most recent report on Form 10-K filed with
the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the Issuer's other
publicly available reports, including, but not limited to, any publicly
available filings or reports provided to its shareholders, (iv) any other
information or disclosure prepared pursuant to Section 4.3 hereof and (v) any
information prepared or approved by the Issuer for dissemination to investors or
potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
<PAGE> 11
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as
such on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned
to that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
<PAGE> 12
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under
this Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer,
upon one business day's prior notice to such effect to the Dealer, or by the
Dealer upon one business day's prior notice to such effect to the Issuer. Any
such termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without
the written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
7.6 This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties
hereto, and their respective permitted successors and assigns hereunder, and
shall not be deemed to give any legal
<PAGE> 13
or equitable right, remedy or claim to any other person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
By: /s/ CHESTER J. POPKOWSKI
-----------------------------------------
Name: Chester J. Popkowski
Title: Vice President and Treasurer
WACHOVIA SECURITIES, INC., AS DEALER
By: /s/ MICHAEL F. MARTIN
-----------------------------------------
Authorized Signatory
<PAGE> 1
Exhibit (b)(7)
ISSUING AND PAYING AGENT AGREEMENT
This Issuing and Paying Agency Agreement (the "Agreement"), dated as of July 16,
1999, between National Service Industries, Inc. (Issuer), a Delaware corporation
(the "Issuer") and The First National Bank of Chicago, a national banking
association ("FNBC"), as issuing and paying agent, in connection with the
issuance and payment, in book entry only form, of certain commercial paper notes
(collectively the "Notes"). The Issuer hereby appoints FNBC its agent to issue,
deliver and pay such Notes as herein set forth. FNBC has advised the Issuer that
it has arranged for First Chicago Trust Company of New York ("FCTC" or the
"Sub-Agent") to act as its sub-agent for certain purposes of this Agreement, and
the Issuer hereby agrees to the use of such Sub-Agent. The Issuer hereby agrees
with FNBC as follows:
1. Authorization.
The Issuer shall enclose herewith an incumbency certificate in
substantially the form of Exhibit A hereto (the "Incumbency
Certificate") of the Secretary or an Assistant Secretary of the Issuer,
certifying the incumbency and specimen signatures of officers,
employees and other agents of the Issuer authorized to execute Notes
and to act and to give instructions and notice with respect to Notes on
behalf of the Issuer (hereinafter "Issuer Agents"). Until FNBC receives
a subsequent Incumbency Certificate from the Issuer, FNBC may rely on
the last such Incumbency Certificate delivered to it. Any Note bearing
the signature of an Issuer Agent on the date such signature is affixed
thereto shall bind the Issuer after the authentication and delivery of
such Note even if such person shall have ceased to hold his or her
office on the date such Note is authenticated and delivered.
2. Notes.
A. The Notes shall be issued to The Depository Trust Company
("DTC"), or its nominee in substantially the forms set forth
in Exhibit B, as appropriate. In connection with the issuance
of Notes, (i) FNBC has previously entered into a commercial
paper certificate agreement ("Certificate Agreement") with DTC
and (ii) FNBC and the Issuer shall jointly execute a letter of
representations ("Representation Letter") to DTC. The Issuer
understands and acknowledges that the execution of the
Certificate Agreement by FNBC is a necessary prerequisite to
the provision of book entry services under this Agreement and
as such, the Issuer agrees, (x) to be bound by the provisions
of the Certificate Agreement and (y) that the Certificate
Agreement shall supplement the provisions of this Agreement. A
copy of the Certificate Agreement and the Representation
Letter are attached hereto as Exhibit C and Exhibit D,
<PAGE> 2
respectively.
B. Prior to 12:00 p.m. (Chicago time) on each issuance date, an
Issuer Agent or any dealer or placement agent appointed as
confirmed in writing to FNBC by the Issuer (each a "Dealer")
shall provide FNBC with instructions specifying the issue
date, interest rate (if applicable), maturity date (which
shall be no later than 366 days from the date of issuance
thereof), proceeds, principal amount, maturity amount, payee
and payee's settlement bank (which bank must be a participant
in the DTC book entry commercial paper program) ("Issuance
Instructions").
C. Following receipt of Issuance Instructions, FNBC will process
such Issuance Instructions in accordance with and subject to
(i) this Agreement, (ii) the procedures set forth in the DTC
Commercial Paper Issuing/Paying Agent Manual ("Manual") and
the Rules of The Depository Trust Company contained therein,
including without limitation, the DTC Same Day Funds
Settlement System, Money Market Instruments Program
(collectively, "Rules") and (iii) the terms and conditions of
the Certificate Agreement. Unless otherwise instructed by an
Issuer Agent or the Dealer, Notes delivered under this
Agreement shall be made against payment as more fully set
forth in Section 3 below. In the event of a conflict between
the terms of this Agreement and the terms of the Manual, the
Certificate Agreement or the Rules, the provisions of this
Agreement shall control.
3. Proceeds of Sale of Notes.
A. The Issuer understands that when FNBC is instructed to deliver
against payment, the processing of Issuance Instructions may
not be completed simultaneously against the receipt of
payment. Accordingly, FNBC and the Sub-Agent are each hereby
authorized to initiate delivery and to receive payment from
the purchaser in accordance with the provisions of the Manual
and the Rules. All such payments shall be received for credit
to the Note Account (as that term is defined in paragraph 5
below). The Issuer hereby agrees to bear the risk that FNBC
fails to receive payment of the purchase price of any Notes
issued pursuant to Issuance Instructions.
B. Funds received by FNBC in payment of the Note(s) ("Proceeds")
will be credited to the Note Account. Prior to the time that
such Proceeds are received, FNBC may, but shall not be
obligated to, advance the Issuer an amount less than or equal
to the anticipated Proceeds (an "Advance"). Upon telephonic,
written (which may be in facsimile form), or electronic
instructions received by FNBC from an Issuer Agent, an Advance
may be (i) used in payment of Notes
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<PAGE> 3
presented for payment upon maturity, (ii) deposited by FNBC in
an account of the Issuer maintained at FNBC, or (iii)
transferred to the account of the Issuer at another bank. If
FNBC, in its sole discretion, makes an Advance, the Issuer
agrees to apply the Proceeds to repay such Advance; if such
Proceeds are insufficient to repay the Advance in full, the
Issuer agrees to repay such Advance within 24 hours from the
time such advance was made. Interest on any Advance shall
accrue from the day such Advance is made, and shall bear
interest as described in FNBC's standard fee schedule, a copy
of which shall be provided to Issuer from time to time.
4. Instructions.
A. In addition to and not by way of limiting FNBC's authority or
the authority of the Sub-Agent or any other person acting on
its behalf to act on receipt of and in accordance with written
instructions, the Issuer hereby authorizes FNBC and any person
acting on its behalf, to act in accordance with Issuance
Instructions received by FNBC or such person from an Issuer
Agent or the Dealer, as provided in the following Sections
4.B. and 4.C.
B. The Issuer or the Dealer may initiate Issuance Instructions
electronically if it enters into a nonexclusive,
nontransferable license agreement in a form specified by FNBC
to use certain software products and associated printed
documentation pursuant to a separate license agreement. FNBC
shall be entitled to rely on the Issuance Instructions
received electronically hereunder and, in the absence of
actual knowledge to the contrary, may assume that all such
Issuance Instructions were transmitted by the Issuer or on the
Issuer's behalf, regardless of by whom they were actually
transmitted.
C. Telephonic Issuance Instructions shall be given to FNBC by an
Issuer Agent or the Dealer at the telephone number specified
by FNBC from time to time for such purpose, and shall be
expressed to be for the attention of any of FNBC's or FCTC's
officers or employees whose name has been specified for such
purpose by FNBC to the Issuer. Telephonic Issuance
Instructions to FNBC by an Issuer Agent or the Dealer shall be
confirmed in writing by an Issuer Agent or the Dealer within
24 hours of the time such instruction is received by FNBC or
on its behalf; provided that, in the event a discrepancy
exists between the Telephonic Issuance Instructions and the
subsequent written confirmation, or in the absence of
receiving a written confirmation prior to the time specified
in Sections 2.B. above, the Telephonic Issuance Instructions
shall be deemed the proper and controlling Issuance
Instructions and FNBC shall incur no liability for acting in
accordance with any such Telephonic Issuance Instructions
reasonably believed by it in good faith to have been given by
an Issuer Agent or
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<PAGE> 4
the Dealer. A "written confirmation" may be effected by means
of communications directly between electro-mechanical or
electronic devices or systems, including transmission by
telecopier.
5. Note Account.
A. For purposes of the transactions contemplated herein, the
Issuer shall open and maintain with FNBC a demand deposit
account (No. 10-14661) (the "Note Account").
B. Deposits will be made to the Note Account from time to time by
or on behalf of the Issuer by delivery to FNBC of funds to be
deposited therein. All Proceeds shall be credited to the Note
Account. Withdrawals or other uses of the funds from the Note
Account shall be made in accordance with instructions from an
Issuer Agent or to repay amounts payable under Sections 3.B.
or 6.D. hereof. Notwithstanding anything in this Agreement to
the contrary, FNBC shall not be obligated (i) to permit any
withdrawal or other use of funds from the Note Account, or
(ii) to honor any instructions to those effects, if FNBC, in
its sole discretion, shall determine that as a result there
would be an overdraft or negative balance in respect of final
credits (whether in the course of any day, overnight or
otherwise) in the Note Account.
6. Payment of Notes.
A. FNBC hereby agrees to serve as paying agent of the Issuer with
respect to each of the Notes presented to FNBC, FCTC or DTC
pursuant to this Agreement, the Manual or the Rules. The
Issuer shall on the stated maturity date of such Notes, or, if
such maturity date is not a Business Day (as hereinafter
defined), on the next succeeding Business Day (such maturity
date or next succeeding Business Day, as the case may be,
being hereinafter referred to as the "Maturity Date"), deposit
or cause to be deposited in the Note Account by 9:00 a.m.
Chicago time an amount in immediately available funds equal to
the maturity amount of such Notes, or if applicable, the
principal plus interest payable thereon. As used herein
"Business Day" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the States
of Illinois or New York or is a day on which banking
institutions located in either of such states are authorized
by law or other governmental action to close.
B. FNBC is hereby authorized and instructed by the Issuer, to the
extent that funds sufficient to effect such payment are
available in the Note Account, to pay, and shall pay, each of
the Notes upon presentation thereof. FNBC is further hereby
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<PAGE> 5
authorized and instructed by the Issuer to debit the Note
Account in the amount of each such payment.
C. If at any time funds in the Note Account are insufficient to
cover payment of any matured Notes presented to FNBC, FCTC or
DTC prior to 2:00 p.m. (Chicago time) on the Maturity Date of
such Notes, FNBC may, but shall not be obligated to, pay the
Notes thus creating an overdraft for the account of the
Issuer, which overdraft shall be charged to the Note Account.
D. The amount of any resulting overdraft shall represent an
Advance by FNBC to the Issuer to be promptly repaid by the
Issuer together with any applicable overdraft charges and
interest on such advance for each day such advance remains
outstanding in accordance with Section 3.B.
E. Notwithstanding anything to the contrary herein, if at any
time funds in the Note Account are insufficient to cover
payment of all matured Notes presented for and awaiting
payment, FNBC may apply such funds to the extent available to
pay any of the Notes, either fully or in part, as FNBC deems
appropriate.
7. Representations and Warranties.
Each day on which an Issuance Instruction is given to FNBC, the Issuer
shall be deemed to represent and warrant to FNBC that (a) the issuance
and delivery of the designated Notes will not violate any state or
federal securities law applicable to the Issuer, (b) the Notes have
been duly and validly authorized by the Issuer and (c) the Notes, when
issued and delivered pursuant hereto, will constitute the legal, valid,
and binding obligations of the Issuer, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
8. Indemnification; Liabilities.
A. The Issuer shall indemnify FNBC, the Sub-Agent and their
respective officers, directors, employees and agents, and hold
the indemnified persons harmless from and against any and all
costs, expenses, claims or liabilities (including, without
limitation, reasonable lawyers' fees) arising out of or
connected with the performance of each indemnified person's
duties hereunder, except for costs, expenses, claims or
liabilities arising out of the gross negligence or willful
misconduct of an indemnified person. FNBC shall indemnify the
Issuer, and its officers, directors, employees and agents, and
hold each of them
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<PAGE> 6
harmless from and against any and all costs, expenses, claims
or liabilities (including, without limitations, reasonable
lawyer's fees) arising out of or connected with its gross
negligence or willful misconduct. Each indemnified person may
rely and shall be protected in acting upon any resolution,
certificate, opinion, instructions (whether oral or
otherwise), receipt, or other document reasonably believed by
such indemnified person to be (i) genuine and (ii) to have
been signed or given by the proper party or parties.
B. In acting with respect to the Notes, and generally in acting
under the provisions hereof, FNBC will be required by the
Issuer to perform only such duties as are specifically set
forth herein and this Agreement shall not be construed to
subject FNBC to any implied covenants or obligations. Except
in the case of FNBC's gross negligence or willful misconduct,
FNBC shall not be liable to the Issuer for any action taken or
omitted by FNBC and reasonably believed by FNBC to be
authorized or within the powers conferred upon FNBC hereby. In
no event shall FNBC be liable for consequential, indirect or
special damages, even if FNBC has been advised of the
possibility of such damages. FNBC shall also not be liable for
any action taken, or any failure to take any action in
connection with this Agreement or the services provided
hereunder or otherwise to fulfill its obligations in
connection with this Agreement, in the event and to the extent
that the taking of such action or such failure arises out of
or is caused by mechanical breakdown, computer or system
failure or other failure of equipment, failure or
malfunctioning of any communications media for whatever
reason, or any other cause outside of the control of FNBC,
provided that FNBC undertakes to use reasonable efforts to
cure any such failure or breakdown of FNBC or FCTC equipment.
It is understood by the Issuer that provision of services
under this Agreement is dependent upon the availability to
FNBC and the Issuer of telecommunication facilities provided
by third party vendors and that FNBC does not warrant such
availability.
9. Miscellaneous.
A. FNBC or the Issuer may terminate this Agreement upon ten (10)
days' prior written notice to the other party; provided,
however, that to the extent there are then outstanding any
Notes, notwithstanding such termination they shall remain
valid obligations of the Issuer and shall continue to be
subject to the provisions of this Agreement and, provided
further, that no termination of this Agreement shall affect
the rights and obligations of the parties hereto with respect
to transactions initiated prior to such termination. In the
event that FNBC shall give the Issuer notice of termination,
the Issuer shall not issue on or after the date of such notice
any Notes having a maturity in excess of thirty (30) days.
B. The fees for FNBC's services hereunder shall be as mutually
agreed upon in
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<PAGE> 7
writing between FNBC and the Issuer, which are initially set
forth as Exhibit E, and shall be payable by the Issuer in
accordance with such agreement.
C. No amendment or modification of this Agreement shall be
effective unless the same shall be in writing and signed by
both of the parties hereto. No waiver of, nor any consent to
any departure from, any provision of this Agreement shall be
effective unless signed by the party intended to be bound. No
such amendment, modification, waiver or consent shall
adversely affect the rights of any holder of Notes outstanding
at the time of such amendment, modification, waiver or
consent.
D. Except as otherwise provided herein, FNBC may execute any of
the powers hereunder or perform any duties hereunder either
directly or by or through agents, including, without
limitation, the Sub-Agent, or attorneys and shall not be
responsible for the acts of such agents (other than FCTC) or
attorneys appointed with due care hereunder, unless caused by
the negligence or lack of good faith of FNBC.
E. FNBC may consult with legal counsel regarding matters arising
under this Agreement and shall not be liable for any action
taken in good faith in reliance upon the advice of such
counsel, provided that such counsel is selected with due care.
F. The Issuer acknowledges the interest of DTC in Notes and Note
Certificates as provided in the Certificate Agreement.
G. FNBC, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights FNBC would have
if FNBC were not acting hereunder.
H. FNBC shall be under no liability for interest on any moneys
received by FNBC hereunder except such as FNBC may agree with
the Issuer to pay thereon, and need not segregate such moneys
except as may be required by law.
I. Nothing in this Agreement constitutes a commitment or
obligation of FNBC to extend any credit to the Issuer, nor
shall any course of dealing between the Issuer and FNBC be
deemed to be, or constitute, any such commitment or
obligation.
J. Except as otherwise expressly provided herein, whenever, in
the administration of this Agreement, FNBC shall deem it
necessary that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically
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<PAGE> 8
prescribed) may be deemed to be conclusively proved and
established by a certificate or written instructions of an
Issuer Agent and such certificate or written instructions
shall be full warranty to FNBC for any action taken, suffered,
or omitted under the provisions of this Agreement in reliance
upon such certificate or written instructions.
K. Any banking association or corporation into which FNBC may be
merged, converted or with which FNBC may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which FNBC shall be a party, shall succeed to
all FNBC's rights, obligations and immunities hereunder
without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
L. FNBC's countersignature of a Note shall be for authentication
purposes only. Neither FNBC nor the Sub-Agent shall have any
liability on any Notes. Except with respect to FNBC's own
actions in issuing and delivering Notes pursuant to Issuance
Instructions, FNBC shall not be liable for the authorization,
validity or legality of any Notes delivered by FNBC in
accordance with Issuance Instructions.
10. Notices.
Any notices, demands, instructions and other communications required or
permitted to be given or made upon either party shall be in writing and
shall be personally delivered or sent by first class mail, postage
prepaid (or telecopier, as permitted hereunder), and shall be effective
for purposes of this Agreement upon receipt by the intended recipient
thereof at the address designated by such recipient, or on the next
succeeding Business Day if received on other than a Business Day.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this paragraph (or with respect to
Issuance Instructions, as permitted hereunder), notices, demands,
instructions and other communications in writing shall be addressed as
indicated below:
If to FNBC in its capacity The First National Bank of Chicago
as agent hereunder: One First National Plaza
Suite 0439, 1NS-9
Chicago, Illinois 60670-0439
Attn: Commercial Paper Client Services
Telephone: (312) 407-4722
Telecopier: (312) 407-4154
-8-
<PAGE> 9
If to the Issuer: National Service Industries, Inc.
1420 Peachtree Street, N.E.
Atlanta, GA 30309-3002
Attn: Treasury Department
Telephone: (404) 853-1223
Telecopier: (404) 853-1330
11. Assignment.
Neither party hereto may assign any of its rights or obligations
hereunder without the consent of the other party hereto.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAW OF THE STATE OF ILLINOIS (EXCLUDING ITS CONFLICTS OF
LAWS RULES).
13. Entire Agreement.
This Agreement, together with the Certificate Agreement, Representation
Letter, Manual and Rules, constitutes the entire agreement between FNBC
and the Issuer relating to the subject matter hereof, and supersedes
all proposals and all other communications between the parties relating
hereto.
14. Counterparts.
This Agreement may be executed in any number of counterparts and by
each party hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and
all of which counterparts taken
-9-
<PAGE> 10
together shall constitute one and the same Agreement.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ CHESTER J. POPKOWSKI
--------------------------------------
Name: Chester J. Popkowski
------------------------------------
Title: Vice President and Treasurer
-----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Issuing and Paying Agent
By: /s/ TAMRA AMOS
--------------------------------------
Name: Tamra Amos
------------------------------------
Title: Corporate Account Executive
-----------------------------------
-10-
<PAGE> 1
EXHIBIT (b)(8)
$250,000,000
CREDIT AGREEMENT
dated as of
July 15, 1999
among
NATIONAL SERVICE INDUSTRIES, INC.,
Certain of its Subsidiaries
The Banks Listed Herein
WACHOVIA BANK, N.A.,
as Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger
WACHOVIA SECURITIES, INC.,
as Co-Lead Arranger
COMMERZBANK AG, NEW YORK BRANCH
as Co-Agent
and
ABN AMRO, N.V.
as Co-Agent
(i)
<PAGE> 2
TABLE OF CONTENTS
CREDIT AGREEMENT
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
DEFINITIONS..........................................................1
SECTION 1.01. Definitions.........................................................................................1
SECTION 1.02. Accounting Terms and Determinations................................................................15
SECTION 1.03. References.........................................................................................15
SECTION 1.04. Use of Defined Terms...............................................................................15
SECTION 1.05. Terminology........................................................................................15
ARTICLE II
THE CREDITS.........................................................16
SECTION 2.01. Commitments to Lend Syndicated Loans...............................................................16
SECTION 2.02. Method of Borrowing................................................................................16
SECTION 2.03. Money Market Loans.................................................................................18
SECTION 2.04. Notes..............................................................................................22
SECTION 2.05. Maturity of Loans..................................................................................22
SECTION 2.06. Interest Rates.....................................................................................23
SECTION 2.07. Fees...............................................................................................26
SECTION 2.08. Optional Termination or Reduction of
Commitments...........................................................................27
SECTION 2.09. Mandatory Reduction and Termination of
Commitments...........................................................................27
SECTION 2.10. Optional Prepayments...............................................................................27
SECTION 2.11. Mandatory Prepayments..............................................................................28
SECTION 2.12. General Provisions as to Payments..................................................................28
SECTION 2.13. Computation of Interest and Fees...................................................................31
SECTION 2.14. Additional Borrowers...............................................................................31
ARTICLE III
CONDITIONS TO BORROWINGS..................................................31
SECTION 3.01. Conditions to First Borrowing......................................................................31
SECTION 3.02. Conditions to All Borrowings.......................................................................33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES .......................................................34
</TABLE>
(ii)
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 4.01. Corporate Existence and Power......................................................................34
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention......................................................................34
SECTION 4.03. Binding Effect.....................................................................................34
SECTION 4.04. Financial Information..............................................................................34
SECTION 4.05. No Litigation......................................................................................35
SECTION 4.06. Compliance with ERISA..............................................................................35
SECTION 4.07. Compliance with Laws; Payment of Taxes.............................................................35
SECTION 4.08. Subsidiaries.......................................................................................36
SECTION 4.09. Investment Company Act.............................................................................36
SECTION 4.10. Public Utility Holding Company Act.................................................................36
SECTION 4.11. Ownership of Property; Liens.......................................................................36
SECTION 4.12. No Default.........................................................................................36
SECTION 4.13. Full Disclosure....................................................................................36
SECTION 4.14. Environmental Matters..............................................................................37
SECTION 4.15. Capital Stock......................................................................................37
SECTION 4.16. Margin Stock.......................................................................................37
SECTION 4.17. Insolvency.........................................................................................38
SECTION 4.18. Insurance..........................................................................................38
SECTION 4.19. Y2K Plan..........................................................................................38
ARTICLE V
COVENANTS...........................................................38
SECTION 5.01. Information........................................................................................38
SECTION 5.02. Inspection of Property, Books and Records..........................................................41
SECTION 5.03. Maintenance of Existence...........................................................................41
SECTION 5.04. Dissolution........................................................................................41
SECTION 5.05. Consolidations and Mergers.........................................................................41
SECTION 5.06. Use of Proceeds....................................................................................42
SECTION 5.07. Compliance with Laws; Payment of Taxes.............................................................42
SECTION 5.08. Insurance..........................................................................................43
</TABLE>
(iii)
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 5.09. Subsidiary Debt....................................................................................43
SECTION 5.10. Maintenance of Property............................................................................43
SECTION 5.11. Environmental Notices..............................................................................43
SECTION 5.12. Environmental Matters..............................................................................43
SECTION 5.13. Environmental Release..............................................................................44
SECTION 5.14. Transactions with Affiliates.......................................................................44
SECTION 5.15. Negative Pledge....................................................................................44
SECTION 5.16. Leverage Percentage................................................................................46
SECTION 5.17. Election to Become Guarantor.......................................................................46
SECTION 5.18. Y2K Compliance....................................................................................46
ARTICLE VI
DEFAULTS.............................................................46
SECTION 6.01. Events of Default..................................................................................46
SECTION 6.02. Notice of Default..................................................................................49
ARTICLE VII
THE ADMINISTRATIVE AGENT...................................................49
SECTION 7.01. Appointment; Powers and Immunities.................................................................49
SECTION 7.02. Reliance by Administrative Agent...................................................................50
SECTION 7.03. Defaults...........................................................................................51
SECTION 7.04. Rights of Administrative Agent as a Bank
and its Affiliates.................................................................................51
SECTION 7.05. Indemnification....................................................................................51
SECTION 7.06. Consequential Damages..............................................................................52
SECTION 7.07. Payee of Note Treated as Owner.....................................................................52
SECTION 7.08. Nonreliance on Administrative Agent, Syndication
Agent and Other Banks..............................................................................52
SECTION 7.09. Failure to Act.....................................................................................53
SECTION 7.10. Resignation or Removal of Administrative Agent.....................................................53
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION............................................53
</TABLE>
(iv)
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair..................................................................53
SECTION 8.02. Illegality.........................................................................................54
SECTION 8.03. Increased Cost and Reduced Return..................................................................54
SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans
Substituted for Affected Fixed Rate Loans..........................................................56
SECTION 8.05. Compensation.......................................................................................56
SECTION 8.06. Limitation on Certain Payment Obligations..........................................................57
SECTION 8.07. Alternate Lending Offices..........................................................................57
ARTICLE IX
MISCELLANEOUS....................................................57
SECTION 9.01. Notices............................................................................................57
SECTION 9.02. No Waivers.........................................................................................57
SECTION 9.03. Expenses; Documentary Taxes........................................................................58
SECTION 9.04. Indemnification....................................................................................58
SECTION 9.05 Setoff; Sharing of Setoffs.........................................................................58
SECTION 9.06. Amendments and Waivers.............................................................................60
SECTION 9.07. No Margin Stock Collateral.........................................................................61
SECTION 9.08. Successors and Assigns.............................................................................61
SECTION 9.09. Confidentiality....................................................................................65
SECTION 9.10. Representation by Banks............................................................................66
SECTION 9.11. Obligations Several................................................................................66
SECTION 9.12. Georgia Law........................................................................................66
SECTION 9.13. Severability.......................................................................................66
SECTION 9.14. Interest...........................................................................................66
SECTION 9.15. Interpretation.....................................................................................67
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction......................................................67
SECTION 9.17. Counterparts.......................................................................................68
SECTION 9.18. Source of Funds -- ERISA...........................................................................68
SECTION 9.19. References Regarding Foreign Subsidiaries..........................................................68
SECTION 9.20. No Bankruptcy Proceedings.........................................................................68
</TABLE>
(v)
<PAGE> 6
SECTION 9.21. Entire Agreement..............................................68
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Parent
EXHIBIT C Form of Opinion of Special Counsel for the
Administrative Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
EXHIBIT K Form of Guaranty
EXHIBIT L Form of Contribution Agreement
EXHIBIT M Form of Designation Agreement
EXHIBIT N Form of Additional Borrower Assumption
Agreement
Schedule 4.08 Subsidiaries
Schedule 5.15(a) Existing Liens
(vi)
<PAGE> 7
CREDIT AGREEMENT
AGREEMENT dated as of July 15, 1999 among NATIONAL SERVICE
INDUSTRIES, INC., the other Borrowers parties hereto, the BANKS parties hereto,
WACHOVIA BANK, N.A., as Administrative Agent and THE FIRST NATIONAL BANK OF
CHICAGO, as Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Additional Borrower" has the meaning set forth in
Section 2.14.
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.06(c).
"Administrative Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as administrative agent for the Banks hereunder, and its successors
and permitted assigns in such capacity.
"Administrative Agent's Letter Agreement" means that certain
letter agreement, dated as of June 18, 1999, among the Parent, the
Administrative Agent and Wachovia Securities, Inc., as Co-Lead Arranger,
relating to certain fees from time to time payable by the Parent to the
Administrative Agent and such Co- Lead Arranger, together with all amendments
and supplements thereto.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
<PAGE> 8
"Applicable Margin" has the meaning set forth in
Section 2.06(a).
"Assignee" has the meaning set forth in Section
9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate or the Federal Funds Rate for any day, changes in the
Prime Rate or the Federal Funds Rate shall be effective on the date of each such
change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Section 2.02(f), or Article
VIII, as applicable.
"Borrower" or "Borrowers" means, individually and
collectively, as the context shall require, with respect to both Syndicated
Loans and Money Market Loans, the Parent, NSI Leasing, Inc., a Delaware
corporation, and NSI Enterprises, Inc., a California corporation, and any
additional Wholly Owned Subsidiaries (other than Foreign Subsidiaries) who may
become Additional Borrowers pursuant to Section 2.14, and in each of the
foregoing cases, their respective successors and permitted assigns, with each
Borrower having joint and several liability as a Borrower hereunder.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) at the same time but separately by one or more
Banks, in the case of a Money Market Borrowing, in each case pursuant to Article
II. A Borrowing is a "Base Rate Borrowing", if such Loans are Base Rate Loans,
and a "Euro-Dollar Borrowing", if such Loans are Euro-Dollar Loans. A Borrowing
is a "Money Market Borrowing" if such Loans are made pursuant to Section 2.03 or
a "Syndicated Borrowing" if such Loans are made pursuant to Section 2.01.
"Capital Leases" means leases which are required to be
capitalized in accordance with GAAP.
"Capital Stock" means any nonredeemable capital stock of the
Parent or any Consolidated Subsidiary (to the extent issued to a Person other
than the Parent), whether common or preferred.
2
<PAGE> 9
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental
Response Compensation and Liability Inventory System established
pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in
Section 8.02.
"Closing Certificate" has the meaning set forth in
Section 3.01(e).
"Closing Date" means July 15, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and (ii)
as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and Acceptance, in each case as such
amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the Parent
and its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Funded Debt" means, without duplication (i)
Long-Term Debt, plus (ii) Current Maturities of Long-Term Debt, plus (iii)
Capital Leases, plus (iv) Short-Term Debt, plus (iv) all Guarantees of Debt of
other Persons (other than of Debt of the Parent or any Subsidiary), including,
obligations of such other Person to reimburse any bank or other Person in
respect of amounts paid or to be paid under a letter of credit or similar
instrument having an expiry date which is one year or more from the date of
measurement.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Parent and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Parent in its consolidated financial statements
as of such date.
"Consolidated Total Assets" means, at any time, the total
assets of the Parent and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Parent and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
3
<PAGE> 10
"Consolidated Total Capitalization" means, at any time, the
sum of (i) Stockholder's Equity and (ii) Consolidated Funded Debt.
"Contribution Agreement" means a Contribution Agreement in
substantially the form of Exhibit L to be executed by the Parent and any
Subsidiary Guarantors, together with all amendments and supplements thereto.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Parent, are treated as a single employer
under Section 414 of the Code.
"Current Maturities of Long-Term Debt" means all payments in
respect of Long-Term Debt (other than Debt under this Agreement) that are
required to be made within one year from the date of determination, whether or
not the obligation to make such payments would constitute a current liability of
the obligor under GAAP.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under Capital
Leases, (v) all obligations of such Person to reimburse any bank or other Person
in respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid or to be paid under a letter of credit or similar
instrument, (viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (ix) all Debt of
others Guaranteed by such Person.
"Debt Rating" means at any time whichever is the higher of the
rating of the Parent's senior unsecured, unenhanced debt (or, if no such debt
exists, its issuer credit rating for debt of such type) by Moody's or S&P (as
such rating may change from time to time, either pursuant to Section 2.06(g) or
otherwise) (provided, that in the event of a double or greater split rating, the
rating immediately below the highest rating shall apply), or if only one of them
rates the Parent's senior unsecured, unenhanced debt, such rating.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the Base Rate.
4
<PAGE> 11
"Designated Bank" means a special purpose corporation owned
and controlled by its Designating Bank that is identified as such on the
signature pages hereto next to the caption "Designated Bank" as well as each
special purpose corporation owned and controlled by its Designating Bank that
(i) shall have become a party to this Agreement pursuant to Section 9.08(i), and
(ii) is not otherwise a Bank.
"Designated Bank Note" means, with respect to any Designated
Bank, a Money Market Loan Note or a Syndicated Loan Note, evidencing the
obligation of the Borrower to repay Money Market Loans or Syndicated Loans,
respectively, made by such Designated Bank, and "Designated Bank Notes" means
any all such Money Market Loan Notes and Syndicated Loan Notes to Designated
Banks issued hereunder.
"Designating Bank" shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating Bank" and
immediately below the signature of its Designated Bank as well as each Bank that
shall designate a Designated Bank pursuant to Section 9.08(i).
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit M attached hereto, entered into by a Bank and
a Designated Bank and acknowledged by the Borrower and the Administrative Agent.
"Dollars" or "$" means dollars in lawful currency of
the United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any
5
<PAGE> 12
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to public health or safety or to the environment and applicable to the
Borrower, any Subsidiary or the Properties, including but not limited to any
such requirement under CERCLA or similar state legislation and all related
federal, state and local laws, ordinances, regulations, orders, writs, decrees
and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Euro-Dollar Rate, and to be made as a
Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set
forth in Section 2.06(c).
"Event of Default" has the meaning set forth in Section
6.01.
"Executive Officer" means any of the chief executive officer,
president, executive vice president or senior vice president of the Parent.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged
6
<PAGE> 13
to the Administrative Agent on such day on such transactions, as determined by
the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the
Parent.
"Fiscal Year" means any fiscal year of the Parent.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a
Money Market Borrowing, or any or all of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans and Money Market
Loans, or any or all of them, as the context shall require.
"Foreign Bank" has the meaning set forth in Section
2.12(c).
"Foreign Subsidiary" means any Subsidiary which is not
organized or created under the laws of the United States of America or any state
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantors" means any one or more or all of the
following, as the context shall require: (i) the Parent, and (ii)
any Subsidiary which becomes a Guarantor pursuant to Section
5.17.
"Guaranty" means the Guaranty Agreement dated as of even date
herewith substantially in the form of Exhibit K, executed by Parent, and any
Subsidiary which at any time becomes a Guarantor pursuant to Section 5.17, in
favor of the Administrative Agent, for the benefit of the Banks, unconditionally
Guaranteeing the payment of all obligations of
7
<PAGE> 14
the other Borrowers hereunder, under the Notes and under the other Loan
Documents executed by them.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation or (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, subject to paragraph (c) below, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the first,
second, third or sixth month thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day, unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall, subject to paragraph (c) below, end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Euro-Dollar Business Day of the
appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) With respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date may be
selected.
(3) With respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending on the Stated
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<PAGE> 15
Maturity Date or such other date or dates as may be specified in the applicable
Money Market Quote; provided that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent.
"Leverage Percentage" means the percentage which
Consolidated Funded Debt bears to Consolidated Total Capitalization.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Liquidity Bank" means for any Designated Bank, at any date of
determination, the collective reference to the financial institutions which at
such date are providing liquidity or credit support facilities to or for the
account of such Designated Bank to fund such Designated Bank's obligations
hereunder or to support the securities, if any, issued by such Designated Bank
to fund such obligations.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Money Market
Loan, or Syndicated Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans,
Money Market Loans, or Syndicated Loans or any or all of them, as the context
shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, any other document evidencing, relating to or securing the Loans, and
any other document or instrument delivered from time to time in connection with
this Agreement, the Notes, the Guaranty or the Loans, as such documents and
instruments may be amended or supplemented from time to time.
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<PAGE> 16
"London Interbank Offered Rate" has the meaning set
forth in Section 2.06(c).
"Long-Term Debt" means at any date any Consolidated Debt which
matures (or the maturity of which may at the option of the Parent or any
Consolidated Subsidiary be extended such that it matures) more than one year
after such date.
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business or properties of the Parent
and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies
of the Administrative Agent or the Banks under the Loan Documents, or the
ability of any of the Borrowers to perform its obligations under the Loan
Documents to which it is a party, or of the Parent to pay its obligations under
the Guaranty, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Material Subsidiary" means (i) each Borrower other than the
Parent and (ii) each other Consolidated Subsidiary, now existing or hereinafter
established or acquired, that at any time during the period that any Bank has
any Commitment hereunder or any amount payable hereunder or under any Note
remains unpaid, either (x) has or acquires total assets in excess of 10% of
Consolidated Total Assets at the end of the most recent Fiscal Quarter, or (y)
contributed more than 10% of Consolidated Operating Profits for the 4 most
recent Fiscal Quarters then ended (or, with respect to any Subsidiary which
existed during the entire 4 Fiscal Quarter period but was acquired by the Parent
during such period, which would have contributed more than 10% of Consolidated
Operating Profits for such period had it been a Subsidiary for the entire
period, as determined on a pro forma basis in accordance with GAAP).
"Money Market Borrowing Date" has the meaning specified
in Section 2.03(b).
"Money Market Loan" means a Loan which bears or is to bear
interest at a Money Market Rate, and to be made as a Money Market Loan pursuant
to the applicable Money Market Quote Request.
"Money Market Loan Notes" means the promissory notes of any or
all of the Borrowers, as the context shall require, substantially in the form of
Exhibit A-3, evidencing the obligation of the Borrowers to repay the Money
Market Loans, together with all amendments, consolidations, modifications,
renewals and supplements thereto.
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"Money Market Quote" has the meaning specified in
Section 2.03(c).
"Money Market Quote Request" has the meaning specified
in Section 2.03(b).
"Money Market Rate" has the meaning specified in
Section 2.03(c)(ii)(C).
"Moody's" means Moody's Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Notes" means the Syndicated Loan Notes and the Money Market
Loan Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in
Section 2.02(a).
"Officer's Certificate" has the meaning set forth in
Section 3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the sum of (i) net revenues, less (ii) cost of goods and services sold,
less (iii) operating expenses (including depreciation and amortization) of such
Person for such period, as determined in accordance with GAAP.
"Parent" means National Service Industries, Inc., a Delaware
corporation, and its successors and permitted assigns.
"Participant" has the meaning set forth in Section
9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the
meaning set forth in Section 2.06(a).
"Person" means an individual, a corporation, a partnership, a
limited liability company, an unincorporated association, a trust or any other
entity or organization, including, but not limited to, a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any
11
<PAGE> 18
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Parent or any Subsidiary, wherever located.
"Proprietary Information" has the meaning set forth in
Section 9.09.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by required sinking fund or similar payments
or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used entirely for the purpose of paying such maturing Loan
or Loan being converted, excluding any difference between the amount of such
maturing Loan or Loan being converted and any greater amount being borrowed on
such day and actually either being made available to the Borrower pursuant to
Section 2.02(c) or remitted to the Administrative Agent as provided in Section
2.12, in each case as contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in
12
<PAGE> 19
bank loans and is advised or managed by the same investment advisor as such
Bank.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 51% of the aggregate outstanding principal
amount of the sum of the (i) Syndicated Loans to all Borrowers and (ii) Money
Market Loans to all Borrowers.
"Reuters Screen" shall mean, when used in connection with any
designated page and the London Interbank Offered Rate, the display page so
designated on the Reuter Monitor Money Rates Service (or such other page as may
replace that page on that service for the purpose of displaying rates comparable
to the London Interbank Offered Rate).
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Short-Term Debt" means at any date any Consolidated Debt
which matures less than one year after such date, and the maturity of which may
not at the option of the Parent or any Consolidated Subsidiary be extended such
that it matures more than one year after such date, but excluding any such
Consolidated Debt which represents contingent obligations to reimburse any bank
or other Person in respect of amounts to be paid under an undrawn letter of
credit or similar instrument having an expiry date which is less than one (1)
year from the date of measurement.
"Stated Maturity Date" means, with respect to any Money Market
Loan, the Stated Maturity Date therefor specified by the Bank in the applicable
Money Market Quote.
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Parent and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Parent and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Parent or any of its Consolidated
Subsidiaries.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Parent.
"Syndicated Loan Notes" means promissory notes of any or all
of the Borrowers, as the context shall require, substantially in the form of
Exhibit "A-1", evidencing the obligation of the Borrowers to repay the
Syndicated Loans, together with all amendments, consolidations, modifications,
renewals, and supplements thereto.
"Syndicated Loan" means a Loan made in Dollars, which shall be
either a Base Rate Loan or a Euro-Dollar Loan.
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<PAGE> 20
"Syndication Agent's Letter Agreement" means that certain
letter agreement, dated as of June 18, 1999, among the Parent, The First
National Bank of Chicago, as the Syndication Agent and Banc One Capital Markets,
Inc., as Lead Arranger, relating to the structure of the Loans, and certain fees
from time to time payable by the Parent to the Syndication Agent and such Lead
Arranger, together with all amendments and supplements thereto.
"Tax Benefit" has the meaning set forth in Section
2.12(c).
"Taxes" has the meaning set forth in Section 2.12(c).
"Telerate" means, when used in connection with any designated
page and the London Interbank Offered Rate, the display page so designated on
the Dow Jones Telerate Service (or such other page as may replace that page on
that service for the purpose of displaying rates comparable to the London
Interbank Offered Rate).
"Termination Date" means the earlier of (i) July 13, 2000, or
such later date to which it is extended by the Banks pursuant to Section
2.05(b), in their sole and absolute discretion, (ii) the date the Commitments
are terminated pursuant to Section 6.01 following the occurrence of an Event of
Default, or (iii) the date the Borrower terminates the Commitments entirely
pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Parent's or any Subsidiary's business and on a temporary
basis.
"Transferee" has the meaning set forth in Section
9.08(d).
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Loans (but not its Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national
banking association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except (i)
directors' qualifying shares, (ii) Redeemable Preferred Stock, and (ii) in the
case of any Foreign Subsidiary, such nominal ownership interests which are
required to be held by third parties under the laws of the foreign jurisdiction
under which such Foreign Subsidiary was incorporated or organized) are at the
time directly or indirectly owned by the Parent.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" means that (a) the Parent's
and its Subsidiaries hardware and software systems with respect to the operation
of its business and its general business
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<PAGE> 21
plan will: (i) handle date information involving any and all dates before,
during and after January 1, 2000, including accepting input, providing output
and performing date calculations in whole or in part; (ii) operate, accurately
without interruption on and in respect of any and all dates before, during and
after January 1, 2000 and without any change in performance; (iii) store and
provide date input information without creating any ambiguity as to the century
and; (b) the Parent has developed alternative plans to ensure business
continuity in the event of the failure of any or all of items (i) through (iii)
in clause (a) above in this definition.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Parent's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Parent and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the Parent's
independent public accountants or required by GAAP, in determining compliance
with any of the provisions of this Agreement or any of the other Loan Documents:
(i) the Parent shall have objected to determining such compliance on such basis
at the time of delivery of such financial statements, or (ii) the Required Banks
shall so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
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ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend Syndicated Loans. Each Bank
severally agrees, on the terms and conditions set forth herein, to make
Syndicated Loans (which may be, at the option of the Borrower and subject to the
terms and conditions hereof, Base Rate Loans or Euro-Dollar Loans) to the
Borrowers (which may be made to any of the Borrowers) from time to time before
the Termination Date; provided that,
(i) immediately after each such Loan is made, the sum of the
aggregate outstanding principal amount of the Syndicated Loans by such
Bank to all Borrowers shall not exceed the amount of its Commitment,
and
(ii) the aggregate outstanding principal amount of all
Syndicated Loans and Money Market Loans of all Banks to all Borrowers
shall not exceed the aggregate amount of the Commitments.
Each (i) Euro-Dollar Borrowing under this Section shall be in an aggregate
principal amount of $5,000,000 or any larger integral multiple of $1,000,000 and
(ii)Base Rate Borrowing under this Section shall be in an aggregate principal
amount of $1,000,000 or any larger integral multiple of $250,000 (except in each
case that any such Syndicated Borrowing may be in the aggregate amount of the
Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing. (a) The requesting Borrower
shall give the Administrative Agent notice (a "Notice of Borrowing"), which
shall be substantially in the form of Exhibit E, prior to 11:00 A.M. (Atlanta,
Georgia time) on the same Domestic Business Day of each Base Rate Borrowing, and
at least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Syndicated Borrowing, which
shall be a Domestic Business Day in the case of a Base Rate
Borrowing, or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated
Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
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(b) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Borrowing and such Notice of Borrowing, once received by
the Administrative Agent, shall not thereafter be revocable by the requesting
Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) for Base
Rate Borrowings, and 11:00 A.M. (Atlanta, Georgia time) for all other
Borrowings, on the date of each Syndicated Borrowing, each Bank shall (except as
provided in paragraph (d) of this Section) make available its ratable share of
such Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address referred to in
Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the requesting
Borrower at the Administrative Agent's aforesaid address by no later than 4:00
P.M. (local time at such address) on the date of such Syndicated Borrowing.
Unless the Administrative Agent receives notice from a Bank, at the
Administrative Agent's address referred to in or specified pursuant to Section
9.01, no later than 4:00 P.M. (local time at such address) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Syndicated Loan in connection with such Syndicated Borrowing,
the Administrative Agent shall be entitled to assume that such Bank will make a
Syndicated Loan in connection with such Syndicated Borrowing and, in reliance on
such assumption, the Administrative Agent may (but shall not be obligated to)
make available such Bank's ratable share of such Syndicated Borrowing to the
requesting Borrower for the account of such Bank. If the Administrative Agent
makes such Bank's ratable share available to the requesting Borrower and such
Bank, if such Bank does not pay such share upon demand by the Administrative
Agent, does not in fact make its ratable share of such Syndicated Borrowing
available on such date, the Administrative Agent shall be entitled to recover
such Bank's ratable share from such Bank or the Borrower (and for such purpose
shall be entitled to charge such amount to any account of the requesting
Borrower maintained with the Administrative Agent), together with interest
thereon for each day during the period from the date of such Syndicated
Borrowing until such sum shall be paid in full at a rate per annum equal to the
rate at which the Administrative Agent determines that it obtained (or could
have obtained) overnight Federal funds to cover such amount for each such day
during such period, provided that (i) any such payment by the requesting
Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the requesting Borrower may have against such Bank
and (ii) until such Bank has paid its ratable share of such Syndicated
Borrowing, together with interest pursuant to the foregoing, it will have no
interest in or rights with respect to such Syndicated Borrowing for any purpose
hereunder. If the Administrative Agent does not exercise its option to advance
funds for the account of such Bank, it shall forthwith notify the requesting
Borrower of such decision.
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<PAGE> 24
(d) If any Bank makes a new Syndicated Loan hereunder on a day
on which the requesting Borrower is to repay all or any part of an outstanding
Syndicated Loan from such Bank, such Bank shall apply the proceeds of its new
Syndicated Loan to make such repayment as a Refunding Loan and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount of such Refunding Loan shall be made available by such Bank to the
Administrative Agent as provided in paragraph (c) of this Section, or remitted
by the requesting Borrower to the Administrative Agent as provided in Section
2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Fixed Rate Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived, and all Refunding Loans made during the continuation of
any Default or Event of Default shall be made as Base Rate Loans (but shall bear
interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Borrowing are to be Base Rate Loans
or Euro-Dollar Loans, such Syndicated Loans shall be made as Base Rate Loans. If
the requesting Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable thereto
with the proceeds of a new Syndicated Borrowing, and the requesting Borrower
fails to repay such Syndicated Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(g) Notwithstanding anything to the contrary contained herein,
there shall not be more than an aggregate of 12 Fixed Rate Borrowings to all
Borrowers outstanding at any given time.
(h) For any Bank which is a Designating Bank, any Syndicated
Loan to be made by such Bank may from time to time be made by its Designated
Bank in such Designated Bank's sole discretion, and nothing herein shall
constitute a commitment to make Syndicated Loans by such Designated Bank;
provided, that if any Designated Bank fails to make any such Syndicated Loan in
accordance with the foregoing, its Designating Bank hereby agrees that it shall
make such Syndicated Loan pursuant to the terms hereof.
SECTION 2.03. Money Market Loans. (a) In addition to making
Syndicated Borrowings, any Borrower may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the requesting Borrower. The Banks may, but shall have no obligation to, make
such offers and the requesting Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section 2.03, provided
that:
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(i) the number of interest rates applicable to
Money Market Loans which may be outstanding at any given time
is subject to the provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money
Market Loans to all Borrowers, together with the aggregate
principal amount of all Syndicated Loans to all Borrowers, at
any one time outstanding shall not exceed the aggregate amount
of the Commitments of all of the Banks at such time; and
(iii) the Money Market Loans of any Bank will not
reduce such Bank's obligation to lend its remaining Unused
Commitment.
(b) When any Borrower wishes to request offers to make Money
Market Loans, it shall give the Administrative Agent (which shall promptly
notify the Banks) notice substantially in the form of Exhibit I hereto (a "Money
Market Quote Request") so as to be received no later than 11:00 A.M. (Atlanta,
Georgia time) at least 1 Domestic Business Day prior to the date of the Money
Market Borrowing proposed therein (or such other time and date as the Borrower
and the Administrative Agent, with the consent of the Required Banks, may
agree), specifying:
(i) the proposed date of such Money Market Borrowing, which
shall be a Euro-Dollar Business Day (the "Money Market Borrowing
Date");
(ii) the maturity date (or dates) (each a "Stated Maturity
Date") for repayment of each Money Market Loan to be made as part of
such Money Market Borrowing (which Stated Maturity Date shall be that
date occurring not less than 7 days but not more than 270 days from the
date of such Money Market Borrowing); provided that the Stated Maturity
Date for any Money Market Loan may not extend beyond the Termination
Date (as in effect on the date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be requested by the
Borrower as a result of such Money Market Borrowing, which shall be at
least $5,000,000, and in larger integral multiples of $1,000,000, but
shall not cause the limits specified in Section 2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request; provided
that the request for each separate Stated Maturity Date shall be deemed to be a
separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, after the
first Money Market Quote Request has been given hereunder, no Money Market Quote
Request shall be given until at least 3 Domestic Business Days after all prior
Money Market Quote Requests have been fully processed by the Administrative
Agent, the Banks and the Borrower pursuant to this Section 2.03.
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<PAGE> 26
(c) (i) Each Bank may, but shall have no obligation to, submit
a response containing an offer to make a Money Market Loan substantially in the
form of Exhibit J hereto (a "Money Market Quote") in response to any Money
Market Quote Request; provided that, if the Borrower's request under Section
2.03(b) specified more than 1 Stated Maturity Date, such Bank may, but shall
have no obligation to, make a single submission containing a separate offer for
each such Stated Maturity Date and each such separate offer shall be deemed to
be a separate Money Market Quote. Each Money Market Quote must be submitted to
the Administrative Agent not later than 10:00 A.M. (Atlanta, Georgia time) on
the Money Market Borrowing Date; provided that any Money Market Quote submitted
by Wachovia may be submitted, and may only be submitted, if Wachovia notifies
the Borrower of the terms of the offer contained therein not later than 9:45
A.M. (Atlanta, Georgia time) on the Money Market Borrowing Date (or 15 minutes
prior to the time that the other Banks are required to have submitted their
respective Money Market Quotes). Subject to Section 6.01, any Money Market Quote
so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and
the Stated Maturity Date therefor;
(B) the principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the applicable
Money Market Quote, which principal amounts (x) may be greater
than or less than the Commitment of the quoting Bank, (y)
shall be at least $1,000,000 or a larger integral multiple of
$500,000, and (z) may not exceed the principal amount of the
Money Market Borrowing for which offers were requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/10,000th of 1%) offered for
each such Money Market Loan (such rate being hereinafter
referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the applicable
Money Market Quote Request (other than setting forth the principal amount of the
Money Market Loan which the quoting Bank is willing to make for the applicable
Interest Period) and, in particular, no Money Market Quote may be conditioned
upon acceptance by the Borrower of all (or some specified minimum) of the
principal amount of the Money Market Loan for which such Money Market Quote is
being made.
(d) The Administrative Agent shall as promptly as practicable
after the Money Market Quote is submitted (but in any event not later than 10:30
A.M. (Atlanta, Georgia time)) on the
20
<PAGE> 27
Money Market Borrowing Date, notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with Section 2.03(c) and
(ii) of any subsequent Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Administrative Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Administrative Agent's notice to the Borrower
shall specify (A) the principal amounts of the Money Market Borrowing for which
offers have been received and (B) the respective principal amounts and Money
Market Rates so offered by each Bank (identifying the Bank that made each Money
Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, the Borrower shall notify the Administrative Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.03(d) and the Administrative Agent shall promptly notify each Bank
which submitted an offer. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers (for each Stated Maturity Date) that
are accepted. The requesting Borrower may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $5,000,000, and
in larger integral multiples of $1,000,000, but shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order
of Money Market Rates; and
(iv) the requesting Borrower may not accept any offer where
the Administrative Agent has advised the requesting Borrower that such
offer fails to comply with Section 2.03(c)(ii) or otherwise fails to
comply with the requirements of this Agreement (including without
limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the requesting Borrower among such Banks as nearly as possible in proportion to
the aggregate principal amount of such offers. Determinations by the requesting
Borrower of the amounts of Money Market Loans shall be conclusive in the absence
of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 1:00 P.M. (Atlanta,
21
<PAGE> 28
Georgia time) on the Money Market Borrowing Date, make the amount of such Money
Market Loan allocated to it available to the Administrative Agent at its address
referred to in Section 9.01 in immediately available funds. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Borrower on such date by depositing
the same, in immediately available funds, not later than 4:00 P.M. (Atlanta,
Georgia time), in an account of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the
Administrative Agent shall notify the Banks of the aggregate principal amount of
the Money Market Quotes received and the highest and lowest rates included in
such Money Market Quotes.
(h) For any Bank which is a Designating Bank, any Money Market
Loan to be made by such Bank may from time to time be made by its Designated
Bank in such Designated Bank's sole discretion, and nothing herein shall
constitute a commitment to make Money Market Loans by such Designated Bank;
provided, that if any Designated Bank elects not to, or fails to, make any such
Money Market Loan that has been accepted by the Borrower in accordance with the
foregoing, its Designating Bank hereby agrees that it shall make such Money
Market Loan pursuant to the terms hereof.
SECTION 2.04. Notes. (a) The Syndicated Loans of each Bank to
each Borrower shall be evidenced by a single Syndicated Loan Note in an amount
equal to the original principal amount of such Bank's Commitment, payable to the
order of such Bank for the account of its Lending Office.
(b) The Money Market Loans made by any Bank to any Borrower
shall be evidenced by a single Money Market Loan Note of such Borrower payable
to the order of such Bank for the account of its Lending Office in an amount
equal to the original principal amount of the aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Administrative Agent shall deliver such Notes to such Bank. Each Bank
shall record, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the date,
amount and maturity of, and effective interest rate for, each Loan made by it,
the date and amount of each payment of principal made by the Borrower with
respect thereto, whether such Loan is a Base Rate Loan or Euro-Dollar Loan, and
such schedules of each such Bank's Notes shall constitute rebuttable presumptive
evidence of the principal amounts owing and unpaid on such Bank's Notes;
provided that the failure of any Bank to make, or any error in making, any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan included in any
Borrowing shall mature, and the principal amount
22
<PAGE> 29
thereof shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on the Termination Date, unless the
Termination Date is otherwise extended by the Banks, in their sole and absolute
discretion. Upon the written request of the Borrower, which request shall be
delivered to the Administrative Agent no more than 60 days, and not less than 30
days, prior to the then existing Termination Date, the Banks shall have the
option (without any obligation whatsoever so to do) of extending the Termination
Date for additional 364-day periods on each then existing Termination Date. Each
Bank shall notify the Borrower and the Administrative Agent no more than 30
days, and not less than 20 days, prior to the then existing Termination Date
whether or not it chooses to extend the Termination Date for such an additional
364-day period (but any Bank which fails to give such notice within such period
shall be deemed not to have extended); provided, that the Termination Date shall
not be extended with respect to any of the Banks unless, on or before the then
existing Termination Date, as to the Commitment of any Bank which gave notice
that it chooses not to extend, or which is deemed pursuant to the foregoing not
to have extended (any such Bank being a "Terminating Bank"), one of the
following shall occur:
(i) the remaining Banks shall purchase ratable
assignments (without any obligation so to do) from such
Terminating Bank (in the form of an Assignment and Acceptance)
in accordance with their respective percentage of the
remaining Aggregate Commitments; provided, that, such Banks
shall be provided such opportunity (which opportunity shall
allow such Banks at least 5 Domestic Business Days in which to
make a decision) prior to the Borrower finding another bank
pursuant to the immediately succeeding clause (ii); and,
provided, further, that, should any of the remaining Banks
elect not to purchase such an assignment, then, such other
remaining Banks shall be entitled to purchase an assignment
from any Terminating Bank which includes the ratable interest
that was otherwise available to such non-purchasing remaining
Bank or Banks, as the case may be, or
(ii) the Borrower shall find another bank, acceptable
to the Administrative Agent, willing to accept an assignment
from such Terminating Bank (in the form of an Assignment and
Acceptance) on or before the then existing Termination Date,
or
(iii) on the then existing Termination Date, the
Borrower shall reduce the aggregate Commitments in an amount
equal to the Commitment of any such Terminating Bank and pay
all amounts due to such Terminating Bank at that time.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and
23
<PAGE> 30
including the first Performance Pricing Determination Date, (x) for any Base
Rate Loan, 0.0% and (y) for any Euro-Dollar Loan, 0.205%; and (ii) from and
after the first Performance Pricing Determination Date, (x) for any Base Rate
Loan, 0.00% and (y) for each Euro-Dollar Loan, the percentage determined on each
Performance Pricing Determination Date by reference to the table set forth below
as to such type of Loan and the Debt Rating on such Performance Pricing
Determination Date; provided, that if there is no Debt Rating in effect at such
time, the Applicable Margin for Euro-Dollar Loans shall be based upon Level V of
the table below.
<TABLE>
<CAPTION>
=============================================================================================================
Level Level Level Level Level
I II III IV V
=============================================================================================================
<S> <C> <C> <C> <C> <C>
Debt Rating <A2 <A3 <Baa1
>=A2 or A or A- or BBB+ Below
or but but but Baa2
A >=A3 >=Baa1 >=Baa2 or BBB
or or or
A- BBB+ BBB
Applicable Margin 0.205% 0.32% 0.40% 0.475% 0.64%
=============================================================================================================
</TABLE>
In determining the amounts to be paid by the Borrowers pursuant to
Sections 2.06(b) and 2.07(a) and (b), the Borrowers and the Banks shall refer to
the Parent's Debt Rating from time to time. For purposes hereof, "Performance
Pricing Determination Date" shall mean each date on which the Debt Rating
changes. Each change in interest and fees as a result of a change in Debt Rating
shall be effective from and after the relevant Performance Pricing Determination
Date. All determinations hereunder shall be made by the Administrative Agent
unless the Required Banks shall object to any such determination. The Parent
shall promptly notify the Agent of any change in the Debt Rating.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than 3 months, at intervals of 3 months after
the first day thereof. Any overdue principal of and, to the extent permitted by
law, overdue interest on any
24
<PAGE> 31
Euro-Dollar Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rates appear on the Telerate Page 3750 effective as of 11:00 A.M., London time,
2 Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates quoted
by not less than 2 major banks in New York City, selected by the Administrative
Agent, at approximately 10:00 A.M., New York City time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, for deposits in Dollars
offered to leading European banks for a period comparable to such Interest
Period in an amount comparable to the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Money
Market Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market Quote. Such
interest shall be payable on the Stated Maturity Date thereof, and, if the
Stated Maturity Date occurs more than 90 days after the date of the relevant
Money Market Loan, at intervals of 90 days after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Money Market Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
25
<PAGE> 32
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder. The Administrative Agent shall give
prompt notice to the requesting Borrower and the Banks by telecopier of each
rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans of all Borrowers (and, to
the extent permitted by applicable law, all accrued interest thereon) may, at
the election of the Required Banks, bear interest at the Default Rate.
SECTION 2.07. Fees. (a) The Parent shall pay to the
Administrative Agent, for the ratable account of each Bank, a facility fee,
calculated in the manner provided in the last paragraph of Section 2.06(a), on
the aggregate amount of such Bank's Commitment (without taking into account the
amount of the outstanding Loans made by such Bank), at a rate per annum equal
to: (i) for the period commencing on the Closing Date to and including the first
Performance Pricing Determination Date, 0.07%; and (ii) from and after the first
Performance Pricing Determination Date, the percentage determined on each
Performance Pricing Determination Date by reference to the table set forth
below and the Debt Rating provided, that if there is no Debt Rating in effect at
such time, the Facility Fee shall be based upon Level V of the table below. The
Facility Fee shall accrue at all times from and including the Closing Date to
but excluding the Termination Date and shall be payable, in arrears, on each
March 31, June 30, September 30 and December 31 and on the Termination Date.
<TABLE>
<CAPTION>
=============================================================================================================
Level Level Level Level Level
I II III IV V
=============================================================================================================
<S> <C> <C> <C> <C> <C>
Debt Rating <A2 <A3 <Baa1
>=A2 or A or A- or BBB+ Below
or but but but Baa2
A >=A3 >=Baa1 >=Baa2 or BBB
or or or
A- BBB+ BBB
- -------------------------------------------------------------------------------------------------------------
Facility Fee 0.07% 0.08% 0.10% 0.125% 0.16%
Rate
=============================================================================================================
</TABLE>
(b) For any quarter in which the average daily principal amount of the
Loans (including Money Market Loans) exceeds $62,500,000, the Parent shall pay
to the Administrative Agent, for the ratable account of each Bank, a utilization
fee, calculated in the manner provided in the last paragraph of Section 2.06(a),
on the average daily principal amount of the Loans (including Money Market
Loans), at a rate per annum equal to: (i) for the period commencing on the
Closing Date to and
26
<PAGE> 33
including the first Performance Pricing Determination Date, 0.10%; and (ii) from
and after the first Performance Pricing Determination Date, the percentage
determined on each Performance Pricing Determination Date by reference to the
table set forth below and the Debt Rating provided, that if there is no Debt
Rating in effect at such time, the Facility Fee shall be based upon Level V of
the table below. The Facility Fee shall accrue at all times from and including
the Closing Date to but excluding the Termination Date and shall be payable, in
arrears, on each March 31, June 30, September 30 and December 31 and on the
Termination Date.
<TABLE>
<CAPTION>
=============================================================================================================
Level Level Level Level Level
I II III IV V
=============================================================================================================
<S> <C> <C> <C> <C> <C>
Debt Rating <A2 <A3 <Baa1
>=A2 or A or A- or BBB+ Below
or but but but Baa2
A >=A3 >=Baa1 >=Baa2 or BBB
or or or
A- BBB+ BBB
- -------------------------------------------------------------------------------------------------------------
Utilization 0.10% 0.10% 0.15% 0.15% 0.20%
Fee Rate
=============================================================================================================
</TABLE>
(c) The Parent shall pay to the Administrative Agent, for the
account and sole benefit of the Administrative Agent and the Co-Lead Arranger,
such fees and other amounts at such times as set forth in the Administrative
Agent's Letter Agreement. The Parent shall pay to the Syndication Agent, for the
account and sole benefit of the Syndication Agent and the Lead Arranger, such
fees and other amounts at such times as set forth in the Syndication Agent's
Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Administrative Agent, terminate the Commitments in their entirety at any
time, or proportionately reduce the Commitments from time to time by an
aggregate amount of at least $5,000,000 or any larger integral multiple of
$1,000,000. If the Commitments are terminated in their entirety, all accrued
fees (as provided under Section 2.07) shall be due and payable on the effective
date of such termination.
SECTION 2.09. Mandatory Reduction and Termination of
Commitments. The Commitments shall terminate on the Termination Date and any
Loans then outstanding (together with accrued interest thereon) shall be due and
payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrowers may,
upon at least 1 Domestic Business Days' notice to the Administrative Agent,
prepay any Base Rate Borrowing in whole at any time, or from time to time in
part in amounts aggregating at least $1,000,000 or any larger integral multiple
of $250,000, by
27
<PAGE> 34
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Base Rate Loans of the several Banks included in such Base
Rate Borrowing.
(b) Except as provided in Section 8.02, the Borrowers may not
prepay all or any portion of the principal amount of any Fixed Rate Loan prior
to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section 2.10, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such prepayment and such
notice, once received by the Administrative Agent, shall not thereafter be
revocable by the Borrowers.
SECTION 2.11. Mandatory Prepayments. (a) On each date on which
the Commitments are reduced pursuant to Section 2.08 or Section 2.09, the
Borrowers shall repay or prepay such principal amount of the outstanding Loans,
if any (together with interest accrued thereon and any amount due under Section
8.05(a)), as may be necessary so that after such payment the aggregate unpaid
principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced.
(b) Each such payment or prepayment under paragraph (a) above
shall be applied ratably to the Loans of the Banks outstanding on the date of
payment or prepayment in the following order of priority (and the portion
allocated to Euro-Dollar Loans or Money Market Loans shall be applied to those
having the shortest Interest Period first, unless otherwise directed by the
prepaying Borrower): (i) first, to Base Rate Loans; (ii) secondly, to
Euro-Dollar Loans; and (iii) lastly, to Money Market Loans.
SECTION 2.12. General Provisions as to Payments. (a)
The Borrowers shall make each payment of principal of, and interest on, the
Loans and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time)
on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address referred to in
Section 9.01. The Administrative Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Administrative Agent for the
account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or Money Market Loans which are made in Dollars or of fees
hereunder shall be due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day, unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day.
28
<PAGE> 35
(c) All payments of principal, interest and fees and all other
amounts to be made by a Borrower pursuant to this Agreement with respect to any
Loan or fee relating thereto shall be paid without deduction for, and free from,
any tax, imposts, levies, duties, deductions, or withholdings of any nature now
or at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise or branch profit taxes imposed
on it, by the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise and branch profit taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that any
Borrower is required by applicable law to make any such withholding or deduction
of Taxes with respect to any Loan or fee or other amount, such Borrower shall
pay such deduction or withholding to the applicable taxing authority, shall
promptly furnish to any Bank in respect of which such deduction or withholding
is made all receipts and other documents evidencing such payment and shall pay
to such Bank additional amounts as may be necessary in order that the amount
received by such Bank after the required withholding or other payment shall
equal the amount such Bank would have received had no such withholding or other
payment been made.
Each Bank that is organized under the laws of a jurisdiction
other than the United States of America or any state thereof or the District of
Columbia (each a "Foreign Bank") agrees to furnish to the Borrowers and the
Administrative Agent, prior to time it becomes a Bank hereunder, two (2) copies
of either U.S. Internal Revenue Service Form 4224 or U. S. Internal Revenue
Service Form 1001 or any successor forms thereto (wherein such Foreign Bank
claims entitlement to complete exemption from or a reduced rate of U.S. federal
withholding tax on interest paid by the Borrowers hereunder) and to provide to
the Borrowers and the Administrative Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of any
previously delivered form; provided, however, that no Foreign Bank shall be
required to furnish any such form under this paragraph if it is not entitled to
claim an exemption from or reduced rate of withholding under applicable law. Any
Foreign Bank that is not entitled to claim an exemption from or a reduced rate
of withholding under applicable law, promptly upon written request of the
Borrowers, shall so inform the Borrowers and the Administrative Agent in
writing.
No Borrower shall be required to pay any amounts pursuant to
this Section 2.12(c) to any Foreign Bank for the account of such Foreign Bank or
any Lending Office of such Foreign Bank in respect of any United States
withholding taxes payable hereunder (and each Borrower, if required by law to do
so, shall be entitled to withhold such amounts and to pay such amounts to the
United States Internal Revenue Service) if the obligation to pay such additional
amounts would not have arisen but for the failure by such Foreign Bank to comply
with its
29
<PAGE> 36
obligations under the immediately preceding paragraph of this Section, and such
Foreign Bank shall not be entitled to exemption from deduction or withholding of
United States federal income tax in respect of the payment of any such sum by
any Borrower hereunder for, in each case, any reason other than a change in the
United States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date such Foreign Bank
becomes a Bank hereunder.
Within 60 days after receipt of the written request of the
Borrower, each Bank shall execute and deliver such certificates, forms or other
documents, which in each such case can be reasonably furnished by such Bank
consistent with the facts and which are reasonably necessary to assist any
Borrower in applying for refunds of Taxes remitted by such Borrower hereunder.
Each Bank shall also use reasonable efforts to avoid and
minimize any amounts which might otherwise be payable by any Borrower pursuant
to this Section 2.12(c), except to the extent that any Bank determines that such
efforts would be disadvantageous to such Bank, as determined by such Bank and
which determination, if made in good faith, shall be binding and conclusive on
all parties hereto.
To the extent that the payment of any Bank's Taxes by any
Borrower hereunder gives rise from time to time to a Tax Benefit to such Bank in
any jurisdiction other than the jurisdiction which imposed such Taxes, such Bank
shall pay to such Borrower the amount of each such Tax Benefit so recognized or
received. The amount of each Tax Benefit and, therefore, payment to such
Borrower will be determined from time to time by the relevant Bank in its sole
discretion, which determination shall be binding and conclusive on all parties
hereto. Each such payment will be due and payable by such Bank to such Borrower
within a reasonable time after the filing of the tax return in which such Tax
Benefit is recognized or, in the case of any tax refund, after the refund is
received; provided, however, if at any time thereafter such Bank is required to
rescind such Tax Benefit or such Tax Benefit is otherwise disallowed or
nullified, the relevant Borrower shall promptly, after notice thereof from such
Bank, repay to such Bank the amount of such Tax Benefit previously paid to such
Bank and which has been rescinded, disallowed or nullified. For purposes hereof,
the term "Tax Benefit" shall mean the amount by which any Bank's income tax
liability for the taxable period in question is reduced below what would have
been payable had the relevant Borrower not been required to pay such Bank's
taxes hereunder.
Without prejudice to the survival of any other agreement of
the Borrowers hereunder, the agreements and obligations of the Borrowers and the
Banks contained in this Section 2.12(c) shall be applicable with respect to any
Assignee, and any calculations required by such provisions (i) shall be made
based upon the circumstances of such Assignee, and (ii) constitute a continuing
agreement and shall survive the
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termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on
Base Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans shall be computed on the basis of a
year of 360 days, and paid for the actual number of days elapsed, calculated as
to each Interest Period from and including the first day thereof to but
excluding the last day thereof. Commitment fees and any other fees payable
hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Additional Borrowers. It is contemplated that
the Parent hereafter may elect to add as Borrowers hereunder additional Wholly
Owned Subsidiaries which are not Foreign Subsidiaries(collectively, the
"Additional Borrowers"), and each of the Additional Borrowers may become a
Borrower hereunder upon the delivery to the Administrative Agent of the
following documents in form and substance satisfactory to the Administrative
Agent and duly executed and delivered on behalf of such Additional Borrower and
the Parent (as the case may be): (i) an Additional Borrower Assumption Agreement
in the form of Exhibit N attached hereto duly executed by such Additional
Borrower, (ii) a duly executed Syndicated Dollar Loan Note, and Money Market
Loan Note in favor of each Bank from such Additional Borrower, (iii) a duly
executed reaffirmation and acknowledgment from the Parent and each other
Guarantor with respect to such Additional Borrower, acknowledging that such
additional Borrower shall be a "Principal" for all purposes under the Guaranty,
and reaffirming its obligations under the Guaranty, (iv) an opinion of Counsel
to the Parent addressed, dated as of the date of the aforesaid Loan Documents,
and providing with respect to such Additional Borrower and the aforesaid Loan
Documents, substantially the same opinions as are set forth in Exhibit B with
respect to the initial Borrowers and the initial Loan Documents, (v) a Closing
Certificate from the Parent in the form of Exhibit G dated as of the date of
such additional Loan Documents, and (vi) any additional documents with respect
to such Additional Borrowers and the aforesaid Loan Documents of the type
described in Section 3.01(f) as may be requested by the Agent. Upon becoming a
Borrower hereunder, an Additional Borrower may assume liability for some or all
of the Loans then outstanding to some or all of the other Borrowers if and to
the extent so expressly provided in the Additional Borrower Assumption Agreement
executed by such Additional Borrower, and the Guaranty executed by the Parent
and the other Guarantors with respect to such Additional Borrower shall
automatically cover (and the Parent and each other Guarantor thereunder shall
guaranty the repayment of) the Loans assumed by such Additional Borrower.
ARTICLE III
CONDITIONS TO BORROWINGS
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SECTION 3.01. Conditions to First Borrowing. The obligation of
each Bank to make a Loan on the occasion of the first Borrowing is subject to
the satisfaction of the conditions set forth in Section 3.02 and receipt by the
Administrative Agent of the following (as to the documents described in
paragraphs (a),(c), (d) and (e) below (in sufficient number of counterparts for
delivery of a counterpart to each Bank and retention of one counterpart by the
Administrative Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart with the original
to be sent to the Administrative Agent by overnight courier;
(b) from each Borrower, a duly executed Syndicated Loan Note
and a duly executed Money Market Loan Note for the account of each Bank
complying with the provisions of Section 2.04, and from the Parent, a
duly executed Guaranty;
(c) an opinion letter of Kenyon W. Murphy, Esq., Association
Counsel of the Parent, dated as of the Closing Date, substantially in
the form of Exhibit B;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel
for the Administrative Agent, dated as of the Closing Date,
substantially in the form of Exhibit C and covering such additional
matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in
the form of Exhibit G), dated as of the Closing Date, signed by a
principal financial officer of each of the Borrowers, to the effect
that (i) no Default has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the
Borrowers contained in Article IV are true on and as of the date of the
first Borrowing hereunder (x) as stated, as to representations and
warranties which contain materiality limitations and (y) in all
material respects, as to all other representations and warranties;
(f) all documents which the Administrative Agent or any Bank
may reasonably request relating to the existence of the Borrowers, the
corporate authority for and the validity of this Agreement, the Notes
and the Guaranty, and any other matters relevant hereto, all in form
and substance satisfactory to the Administrative Agent, including,
without limitation, a certificate of each of the Borrowers, signed by
the Secretary or an Assistant Secretary of each of the Borrowers
substantially in the form of Exhibit H (the "Officer's Certificate"),
certifying as to the names, true signatures and incumbency of the
officer or officers of such Borrower authorized to execute and deliver
the Loan Documents and, as to the Parent, the Guaranty, and certified
copies of the following items: (i) each Borrower's Certificate of
Incorporation, (ii) each Borrower's Bylaws , (iii) a certificate of the
Secretary of State of the State
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of Delaware as to the good standing of the Parent as a Delaware
corporation, and a comparable certificate from the Secretary of State
from the jurisdiction of each other Borrower and (iv) the action taken
by the Board of Directors of each of the Borrowers authorizing the
Borrower's execution, delivery and performance of this Agreement, the
Notes and the other Loan Documents to which the Borrower is a party
and, as to the Parent, the Guaranty;
(g) a Notice of Borrowing or notification pursuant to Section
2.03(e) of acceptance of one or more Money Market Quotes, as
applicable;
(h) a duly executed Compliance Certificate;
(i) payment to the Administrative Agent and the Syndication
Agent of the fees pursuant to the Administrative Agent's Letter
Agreement and the Syndication Agent's Letter Agreement, respectively;
and
(j) delivery to the Administrative Agent and the Banks of the
Y2K Plan.
In addition, if any Borrower desires funding of a Fixed Rate Loan on the Closing
Date, the Administrative Agent shall have received, the requisite number of days
prior to the Closing Date, a funding indemnification letter satisfactory to it,
pursuant to which (i) the Administrative Agent and such Borrower shall have
agreed upon the interest rate, amount of Borrowing and Interest Period for such
Fixed Rate Loan, and (ii) such Borrower shall indemnify the Banks from any loss
or expense arising from the failure to close on the anticipated Closing Date
identified in such letter or the failure to borrow such Fixed Rate Loan on such
date.
SECTION 3.02. Conditions to All Borrowings. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions except as expressly provided in the
last sentence of this Section 3.02:
(a) receipt by the Administrative Agent of a Notice of
Borrowing or notification pursuant to Section 2.03(e) of acceptance of
one or more Money Market Quotes, as applicable.
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and
as of the date of such Borrowing (x) as stated, as to representations
and warranties which contain materiality limitations and (y) in all
material respects, as to all other representations and warranties; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01 shall have
been satisfied.
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Each Syndicated Borrowing and each Money Market Borrowing hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing as to the truth and accuracy of the facts specified in paragraphs (b),
(c) and (d) of this Section; provided that (i) the representation and warranty
set forth in Section 4.04(b) shall be deemed to be made only as of the Closing
Date, and (ii) if such Borrowing is a Syndicated Borrowing which consists solely
of a Refunding Loan, such Borrowing shall not be deemed to be such a
representation and warranty to the effect set forth in Section 4.05.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers (each as to itself) represent and warrant that:
SECTION 4.01. Corporate Existence and Power. Each Borrower is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and where the failure to qualify would have or could
reasonably be expected to cause a Material Adverse Effect, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by each Borrower of this
Agreement, the Notes and the other Loan Documents and by the Parent of the
Guaranty (i) are within such Borrower's and the Parent's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of such Borrower or the Parent or of any agreement, judgment,
injunction, order, decree or other instrument binding upon such Borrower or the
Parent or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or the Parent or any of its
Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement and, as to the
Parent, the Guaranty, constitutes a valid and binding agreement of each Borrower
and the Parent enforceable in accordance with its terms, and the Notes and the
other Loan Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of each Borrower
enforceable in accordance with their respective terms, provided that the
enforceability hereof and thereof is subject in each case to general principles
of equity and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally.
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SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Parent and its Consolidated Subsidiaries as of August 31,
1998 and the related consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, reported on by Arthur Andersen, LLP,
copies of which have been delivered to each of the Banks, and the unaudited
consolidated financial statements of the Parent for the interim period ended
February 28, 1999, copies of which have been delivered to each of the Banks,
fairly present in all material respects, in conformity with GAAP, the
consolidated financial position of the Parent and its Consolidated Subsidiaries
as of such dates and their consolidated results of operations and cash flows for
such periods stated.
(b) During the period from August 31, 1998 through the Closing
Date, in the good faith judgment of the Executive Officers, there has been no
event, act, condition or occurrence having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrowers overtly threatened in
writing, against or affecting any of the Borrowers or any of the Subsidiaries
before any court or arbitrator or any governmental body, agency or official
which has or is likely to have a Material Adverse Effect or which in any manner
draws into question the legality, validity or enforceability of this Agreement,
the Notes or any of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrowers and
each member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code with respect to such Plan, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA in an
aggregate amount in excess of the amount permitted by Section 6.01(i).
(b) Neither the Borrowers nor any member of the Controlled
Group has incurred any withdrawal liability with respect to any Multiemployer
Plan under Title IV of ERISA in an aggregate amount in excess of the amount
permitted by Section 6.01(i), and no such liability is expected to be incurred.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrowers and the Subsidiaries are in compliance in all material respects with
all applicable laws, regulations and similar requirements of governmental
authorities, except where such compliance is being contested in good faith
through appropriate proceedings. There have been filed on behalf of the
Borrowers and the Subsidiaries all Federal, state and local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrowers or any Subsidiary have been paid, except to the
extent that (i) any Borrower or Subsidiary is contesting the same pursuant to
Section 5.07 or (ii) the failure to make such filing or payment would not have
and would not reasonably be expected to
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cause a Material Adverse Effect. The charges, accruals and reserves on the books
of the Borrowers and the Subsidiaries in respect of taxes or other governmental
charges are, in the opinion of the Borrowers, adequate. United States income tax
returns of the Borrowers and the Subsidiaries have been examined and closed
through the Fiscal Year ended August 31, 1996.
SECTION 4.08. Subsidiaries. Each of the Parent's other
Subsidiaries (which are not Borrowers) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, except
where the failure to be in such good standing, or to be so duly organized or to
be so qualified would not have or reasonably could not be expected to cause a
Material Adverse Effect, and has all material corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The Parent has no Subsidiaries except for
those Subsidiaries listed on Schedule 4.08, as supplemented by the Borrower from
time to time by written notice to the Administrative Agent and the Borrowers,
which accurately sets forth each such Subsidiary's complete name and
jurisdiction of incorporation.
SECTION 4.09. Investment Company Act. Neither the Borrowers
nor any of other Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Borrowers nor any of the Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrowers and the Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.15.
SECTION 4.12. No Default. To the best knowledge of the
Borrowers, neither any of the Borrowers nor any of the Consolidated Subsidiaries
is in default under or with respect to any agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound which
default could reasonably be expected to have or cause a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrowers to the Administrative Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Borrowers to the
Administrative Agent or any Bank will be, true and accurate in every material
respect or based on reasonable estimates on the
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date as of which such information is stated or certified. The Borrowers have
disclosed to the Banks in writing any and all facts known to the Executive
Officers which would have or reasonably would be expected to cause a Material
Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither any Borrower
nor any Subsidiary is subject to any Environmental Liability which would have or
could reasonably be expected to cause a Material Adverse Effect and, to the best
knowledge of the Borrowers, neither any Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA in circumstances which have or could reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the
Borrowers, none of the Properties has been identified on any current or proposed
(i) National Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii)
any list arising from a state statute similar to CERCLA, in each case in
circumstances which have or could reasonably be expected to have a Material
Adverse Effect.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
except for Hazardous Materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, managed, or otherwise handled in
compliance with all applicable Environmental Requirements, except where the
failure to comply does not have and could not reasonably be expected to cause a
Material Adverse Effect.
(c) Each of the Borrowers, and each of the Subsidiaries and
Affiliates, has procured all material Environmental Authorizations necessary for
the conduct of its business, and is in material compliance with all
Environmental Requirements in connection with the operation of the Properties
and each Borrower's, and each of the Subsidiary's, respective businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of each Borrower and the Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Parent's Wholly Owned Subsidiaries which are owned by the
Parent are free and clear of any Lien or adverse claim. At least a majority of
the issued shares of capital stock of each of the Parent's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Parent free and clear of
any Lien or adverse claim.
SECTION 4.16. Margin Stock. Neither any Borrower nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin
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Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock, or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation T, U or X.
SECTION 4.17. Insolvency. After giving effect to the execution
and delivery of the Loan Documents and the making of the Loans under this
Agreement: (i) none of the Borrowers will (x) be "insolvent," within the meaning
of such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the
"Bankruptcy Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are defined
below), or (y) be unable to pay its debts generally as such debts become due
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 6 of the UFCA, or (z) have an unreasonably small capital to engage in
any business or transaction, whether current or contemplated, within the meaning
of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the
UFCA; and (ii) the obligations of the Borrowers under the Loan Documents and
with respect to the Loans will not be rendered avoidable under any Other
Applicable Law. For purposes of this Section 4.17, "Bankruptcy Code" means Title
11 of the United States Code, "UFTA" means the Uniform Fraudulent Transfer Act,
"UFCA" means the Uniform Fraudulent Conveyance Act, and "Other Applicable Law"
means any other applicable state law pertaining to fraudulent transfers or acts
voidable by creditors, in each case as such law may be amended from time to
time.
SECTION 4.18. Insurance. The Parent and its Subsidiaries have
(either in the name of the Parent or in any Subsidiary's own name) insurance,
which includes self-insurance which is reasonable and in accordance with sound
industry practice taking into account the nature of their respective businesses,
on all of their respective properties in at least such amounts and against at
least such risks as are usually insured against in the same geographic area by
companies of established repute engaged in the same or similar business.
SECTION 4.19. Y2K Plan. The Parent has developed and has
delivered to the Administrative Agent and the Banks a comprehensive plan (the
"Y2K Plan") for insuring that the Parent's and its Subsidiaries' software and
hardware systems which impact or affect in any way the business operations of
the Parent and its Subsidiaries' will be Year 2000 Compliant and Ready except to
the extent that any failure to be so compliant or ready could not reasonably be
expected to have a Material Adverse Effect. The Parent's and its Subsidiaries'
have met the Y2K Plan milestones such that all hardware and software systems
will be Year 2000 Compliant and Ready in accordance with the Y2K Plan except to
the extent that any failure to be so compliant and ready could not reasonably be
expected to have a Material Adverse Effect.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid:
SECTION 5.01. Information. The Parent will deliver to
each of the Banks:
(a) as soon as available and in any event within 90 days (or
such longer period as may be the subject of an extension granted by the
Securities and Exchange Commission) after the end of each Fiscal Year,
a consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows
for such Fiscal Year, setting forth in each case in comparative form
the figures for the previous fiscal year, all certified by Arthur
Andersen, LLP or other independent public accountants of nationally
recognized standing, with such certification to be free of exceptions
and qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days (or
such longer period as may be the subject of an extension granted by the
Securities and Exchange Commission) after the end of each of the first
3 Fiscal Quarters of each Fiscal Year, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such
Fiscal Quarter and the related statement of income and statement of
cash flows for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting
officer of the Parent;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of
the chief financial officer or the chief accounting officer of the
Parent (i) setting forth in reasonable detail the calculations required
to establish whether the Parent was in compliance with the requirements
of Sections 5.09, 5.15 and 5.16 on the date of such financial
statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Parent is taking or proposes
to take with respect thereto;
(d) within 5 Domestic Business Days after any Executive
Officer becomes aware of the occurrence of any Default, a certificate
of the chief financial officer or the chief accounting officer of the
Parent setting forth the
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details thereof and the action which such the Parent is taking or
proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Parent generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Parent shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which could
reasonably be expected to constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice; provided, however, that each of the foregoing notices
shall not be required to be given unless the reportable event,
withdrawal liability, plan termination or trustee appointment involved
could reasonably be expected to give rise to a liability of more than
$1,000,000 on the part of the Parent or any of its Subsidiaries;
(h) simultaneously with the delivery of each set of annual and
quarterly financial statements referred to in paragraphs (a) and (b)
above, a statement of the Chief Executive Officer, Chief Financial
Officer, or Chief Technology Officer, if any, of the Parent to the
effect that nothing has come to such officer's attention to cause such
officer to believe that the Y2K Plan milestones have not been met in a
manner such that the Parent's and its Subsidiaries' hardware and
software systems will not be Year 2000 Compliant and Ready in
accordance with the Y2K Plan (except to the extent any failure to be so
compliant or ready could not reasonably be expected to have or cause a
Material Adverse Effect);
(i) within 5 Domestic Business Days after the Parent becomes
aware of any deviations from the Y2K Plan which would cause compliance
with the Y2K Plan to be delayed or not achieved in a manner that could
reasonably be expected to have or cause a Material Adverse Effect, a
statement of the Chief Executive Officer, Chief Financial Officer, or
Chief Technology Officer, if any, setting forth the details thereof and
the action which the Parent is taking or proposes to take with respect
thereto;
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(j) promptly upon the receipt thereof, a copy of any material
third party assessments of the Parent's Y2K Plan together with any
recommendations made by such third party with respect to Year 2000
compliance; and
(k) from time to time such additional information regarding
the financial position or business of each of the Borrowers and the
Subsidiaries as the Administrative Agent, at the request of any Bank,
may reasonably request (except such plans and forecasts which have not
been made available by the Parent to its creditors).
SECTION 5.02. Inspection of Property, Books and Records. The
Parent will (i) keep, and cause each Consolidated Subsidiary (other than Foreign
Subsidiaries which are not Material Subsidiaries) to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP (except, with respect to the books and records of Foreign Subsidiaries, as
may be permitted by local accounting principles) shall be made of all dealings
and transactions in relation to its business and activities; and (ii) permit,
and cause each Subsidiary to permit, representatives of any Bank at such Bank's
expense prior to the occurrence of a Default and at the Borrower's expense
during the continuance of a Default to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants. Each
Borrower agrees to cooperate and assist in such visits and inspections, in each
case at such reasonable times and as often as may reasonably be desired. Unless
a Default has occurred and is then continuing, each Bank shall give the Parent
not less than 3 Domestic Business Days' prior written notice of its intent to
conduct such a visit or inspection. To the extent that any Bank, in the course
of any such visit or inspection, obtains possession of any Proprietary
Information pertaining to any Borrower or Subsidiary, such Bank shall handle
such information in accordance with the requirements of Section 9.09.
SECTION 5.03. Maintenance of Existence. Each Borrower shall,
and the Parent shall cause each Material Subsidiary to, maintain its corporate
existence (except through corporate reorganization to the extent permitted by
Section 5.05) and carry on its business in substantially the same manner and in
substantially the same fields as such business is now carried on and maintained;
provided, however, that nothing in the foregoing shall prevent the Parent or any
Material Subsidiary from discontinuing any line of business if (i) no Default is
in existence, and (ii) with respect to the discontinuance of a material line of
business, the Board of Directors of the Parent determines in good faith that
such discontinuance is in the best interest of the Parent and its Consolidated
Subsidiaries, taken as a whole.
SECTION 5.04. Dissolution. Neither any Borrower nor any of the
Material Subsidiaries shall suffer or permit dissolution or liquidation either
in whole, except (i) through corporate reorganization to the extent permitted by
Section 5.05,
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and (ii) any Material Subsidiary may be dissolved or liquidated if its assets
are distributed to a Borrower, a Guarantor or another Material Subsidiary, and,
if it is a Borrower or Guarantor, its liabilities in such capacity are assumed
by the Person to whom its assets are distributed.
SECTION 5.05. Consolidations and Mergers. Each Borrower agrees
that it will not, nor will the Parent permit any Subsidiary to, consolidate or
merge with or into any other Person, provided that if, after giving effect to
any of the following, no Default will be in existence, (a) any Subsidiary may
merge or consolidate with the Parent, if the Parent is the corporation surviving
such merger, (b) any Borrower may merge or consolidate with any other Borrower,
(c) any Subsidiary which is a Guarantor may merge or consolidate with any other
Subsidiary which is a Guarantor, (d) any Subsidiary which is not a Borrower or
Guarantor may merge or consolidate with any other Subsidiary which is not a
Borrower or Guarantor, or with any other Subsidiary which is a Borrower or
Guarantor, if the Borrower or Guarantor, as the case may be, is the corporation
surviving such merger, and (e) any Borrower or Subsidiary may merge with another
Person if (i) such Person was organized under the laws of the United States of
America or one of its states, (ii) such Borrower or Subsidiary is the
corporation surviving such merger and (iii) immediately after giving effect to
such merger, no Default shall have occurred and be continuing.
SECTION 5.06. Use of Proceeds. The proceeds of the Loans will
be used as a backup liquidity facility for commercial paper or for general
corporate purposes. No portion of the proceeds of the Loans will be used by any
Borrower or any other Subsidiary directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any Margin
Stock in violation of Regulation T, U or X, or for any purpose in violation of
any applicable law or regulation.
SECTION 5.07. Compliance with Laws; Payment of Taxes. (a) Each
Borrower agrees that it will, and the Parent will cause each of its other
Subsidiaries and each member of the Controlled Group to, comply in all material
respects with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except where the necessity of such compliance is being contested in
good faith through appropriate proceedings diligently pursued. Each Borrower
will, and the Parent will cause each of its other Subsidiaries to, pay promptly
when due all material taxes, assessments, governmental charges, claims for
labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of any Borrower or any Subsidiary, except liabilities
being contested in good faith and against which such Borrower will, or the
Parent will cause such other Subsidiary to, set up reserves in accordance with
GAAP.
(b) The Parent shall not permit at any time the aggregate
complete or partial withdrawal liability under Title IV of ERISA with respect to
Multiemployer Plans incurred by the Parent and members of the Controlled Group
to exceed 10% of Stockholders' Equity as of the end of the Fiscal Quarter just
ended. For purposes of this Section 5.07(b), the amount of
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withdrawal liability of the Parent and members of the Controlled Group at any
date shall be the aggregate present value of the amount claimed to have been
incurred less any portion thereof which the Parent and members of the Controlled
Group have paid or as to which the Borrower reasonably believes, after
appropriate consideration of possible adjustments arising under Sections 4219
and 4221 of ERISA, it and members of the Controlled Group will have no
liability, provided that, upon request of any Bank, the Parent shall obtain
prompt written advice from independent actuarial consultants supporting such
determination. The Parent agrees (i) once in each year, beginning with Fiscal
Year 1997 to request a current statement of the withdrawal liability of the
Parent and members of the Controlled Group from each Multiemployer Plan in which
the Parent or any member of the Controlled Group has 5 or more employees, if
any, and (ii) to transmit a copy of such statement to the Administrative Agent
and the Banks within 15 days after the Borrower receives the same.
SECTION 5.08. Insurance. The Parent and its Subsidiaries will
maintain (either in the name of the Parent or in any Subsidiary's own name)
insurance, which may include self-insurance which is reasonable and in
accordance with sound industry practice taking into account the nature of their
respective businesses, on all of their respective properties in at least such
amounts and against at least such risks as are usually insured against in the
same geographic area by companies of established repute engaged in the same or
similar business.
SECTION 5.09. Subsidiary Debt. The Parent shall not permit any
Subsidiary which is not a Borrower or a Guarantor to incur any Debt except for
(i) Debt owing to the Parent or another Subsidiary (including any Borrower) and
(ii) other Debt which shall not exceed in the aggregate for all such other Debt
of all such Subsidiaries an amount, together with the amount of Debt subject to
Liens permitted by Section 5.15(p) (but without duplication), in excess of 25%
of Stockholders' Equity as of the end of the Fiscal Quarter just ended.
SECTION 5.10. Maintenance of Property. Each Borrower shall,
and the Parent shall cause each Material Subsidiary to, maintain all of its
material properties and assets in good condition, repair and working order,
ordinary wear and tear excepted or, in the event of any loss of or damage to any
such property or asset each Borrower shall, and the Parent shall cause each
Material Subsidiary to, take reasonable action to repair or replace such
property or assets within a reasonable time.
SECTION 5.11. Environmental Notices. The Parent shall furnish
to the Banks and the Administrative Agent written notice, promptly after
becoming aware thereof, of all material Environmental Liabilities, pending,
threatened or anticipated Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases at, on, in, under
or in any way affecting the Properties, and all facts, events, or conditions
that could lead to any of the foregoing, if such circumstance or circumstances
could reasonably be expected to give rise to liabilities on the part of the
Parent or any of its Subsidiaries in an aggregate amount in excess of
$5,000,000.
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SECTION 5.12. Environmental Matters. Each Borrower agrees that
it will not, and the Parent will cause each Subsidiary to not, and each Borrower
will not permit any Third Party to, use, produce, manufacture, process, treat,
recycle, generate, store, dispose of, manage at, or otherwise handle, or ship or
transport to or from the Properties any Hazardous Materials except for Hazardous
Materials used, produced, manufactured, processed, treated, recycled, generated,
stored, disposed, managed, or otherwise handled in material compliance with all
applicable Environmental Requirements.
SECTION 5.13. Environmental Release. Each Borrower agrees that
upon the occurrence of any material Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to commence
and pursue appropriate remedial action to eliminate, to the extent required by
applicable law, such Environmental Release, whether or not ordered or otherwise
directed to do so by any Environmental Authority.
SECTION 5.14. Transactions with Affiliates. Neither any
Borrower nor any of the Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of such Borrower or such Subsidiary (which
Affiliate is not a Borrower or a Wholly Owned Subsidiary), except as permitted
by law and in the ordinary course of business and pursuant to reasonable terms
which are no less favorable to such Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.15. Negative Pledge. Neither any Borrower
nor any Consolidated Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
(a) Liens existing on the date of this Agreement and disclosed
on Schedule 5.15(a);
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Consolidated
Subsidiary and not created in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the
cost of acquiring or constructing such asset, provided that such Lien
attaches to such asset concurrently with or within 18 months after the
acquisition or completion of construction thereof;
(d) any Lien on any specific fixed asset of any corporation
existing at the time such corporation is merged or consolidated with or
into any Borrower or a Consolidated Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any specific fixed asset prior to the
acquisition thereof by any Borrower or a Consolidated Subsidiary and
not created in contemplation of such acquisition;
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(f) Liens securing Debt owing by any Subsidiary to the Parent
or another Wholly Owned Subsidiary;
(g) Liens on and transfers of accounts receivable in
connection with an accounts receivable securitization program in which
the aggregate principal amount invested by the purchaser of such
receivables does not exceed $100,000,000 at any one time;
(h) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing paragraphs of this Section, provided that (i) such
Debt is not secured by any additional assets, and (ii) the amount of
such Debt secured by any such Lien is not increased;
(i) any Lien on Margin Stock;
(j) subject to Section 6.01(k), Liens for taxes (including ad
valorem taxes), assessments or other governmental charges or levies not
yet due or which are being actively contested in good faith by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of such Borrower or Subsidiary, as the case may
be, in accordance with GAAP;
(k) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the books of
such Borrower or such Subsidiary, as the case may be, in accordance
with GAAP;
(l) Liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment
insurance and other types of social security benefits or obligations or
to secure performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations, provided that
such Liens were not incurred in connection with the incurrence of any
Debt;
(m) zoning ordinances, easements, licenses, restrictions on
the use of real property and minor irregularities in title thereto
which do not materially impair the use of such property and the
operation of the business of such Borrower or such Subsidiary (as the
case may be) thereon or the value of such property;
(n) inchoate Liens arising under ERISA to secure current
service pension liabilities as they are incurred under the provisions
of Plans from time to time in effect;
(o) rights reserved to or invested in any municipality or
governmental, statutory or public authority to control or regulate any
property of such Borrower or such Subsidiary,
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as the case may be, or to use such property in a manner which does not
materially impair the use of such property for the purposes of which it
is held by such Borrower or such Subsidiary, as the case may be; and
(p) Liens not otherwise permitted by the foregoing paragraphs
of this Section securing Debt (other than indebtedness represented by
the Notes) in an aggregate principal amount at any time outstanding,
together with the amount of Debt permitted by Section 5.09(ii) (but
without duplication), does not exceed 25% of Stockholders' Equity as of
the end of the Fiscal Quarter just ended.
SECTION 5.16. Leverage Percentage. The Leverage Percentage
will not at any time exceed 60% as of the end of any Fiscal Quarter or Fiscal
Year.
SECTION 5.17. Election to Become Guarantor. Any Subsidiary
(whether existing on the Closing Date or acquired or created thereafter) may
elect to become a Guarantor at any time by (x) executing and delivering to the
Administrative Agent a counterpart of the Guaranty and a counterpart of the
Contribution Agreement (which must also be executed and delivered by the Parent
at the time of execution and delivery thereof by the first Subsidiary
Guarantor), thereby becoming a party to each of them, (y) delivering to the
Administrative Agent opinions of counsel to such Subsidiary substantially in the
form of Exhibit B (with appropriate modifications) with respect to such
Guarantor and the Guaranty and Contribution Agreement, and (z) delivering to the
Administrative Agent documents pertaining to such Guarantor reasonably requested
by the Administrative Agent of the types described in paragraph (f) of Section
3.01.
SECTION 5.18. Y2K Compliance. The Parent will meet the
milestones contained in the Y2K Plan and will have all hardware and software
systems Year 2000 Compliant and Ready (including all internal and external
testing) on or before September 1, 1999, except to the extent that any failure
to be so compliant or ready could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) any Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within 5
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within 5 Domestic
Business Days after such fee or other amount becomes due; or
(b) any Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(d),(h), (i), (j),
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5.02(ii), 5.03 to 5.06, inclusive, or Sections 5.09, 5.15, 5.16 or
5.18; or
(c) any Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement
(other than those covered by paragraph (a) or (b) above) and such
failure shall not have been cured within 30 days after the earlier to
occur of (i) written notice thereof has been given to such Borrower by
the Administrative Agent at the request of any Bank or (ii) an
Executive Officer otherwise becomes aware of any such failure;
provided, however, that such cure period shall be extended for a period
of time, not to exceed an additional 30 days, reasonably sufficient to
permit such Borrower to cure such failure if such failure cannot be
cured within the initial 30-day period but reasonably could be expected
to be capable of cure within such additional 30 days, such Borrower has
commenced efforts to cure such failure during the initial 30-day period
and such Borrower is diligently pursuing such cure; or
(d) any representation, warranty, certification or statement
made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant
to this Agreement shall prove to have been incorrect or misleading in
any material respect when made (or deemed made); or
(e) any Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Notes) in an
aggregate amount in excess of $25,000,000 when due or within any
applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of any Borrower or any
Subsidiary in an aggregate amount in excess of $25,000,000 (including,
without limitation, any required mandatory prepayment or "put" of such
Debt to such Borrower or any Subsidiary) or enables (or, with the
giving of notice or lapse of time or both, would enable) the holders of
such Debt or Commitment or any Person acting on such holders' behalf to
accelerate the maturity thereof or terminate any such commitment
(including, without limitation, any required mandatory prepayment or
"put" of such Debt to such Borrower or any Subsidiary); or
(g) any Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become
due,
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or shall take any corporate action to authorize any of the foregoing;
or
(h) an involuntary case or other proceeding shall be commenced
against any Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against any Borrower or any Material
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect; or
(i) any Borrower or any member of the Controlled Group shall
fail to pay when due any amount in excess of 10% of Stockholders'
Equity as of the end of the Fiscal Quarter just ended which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans shall be filed
under Title IV of ERISA by the Borrower, any member of the Controlled
Group, any plan administrator or any combination of the foregoing if
the amount of liability involved is in excess of 10% of Stockholders'
Equity as of the end of the Fiscal Quarter just ended; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or
a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter if the amount
of liability involved is in excess of 10% of Stockholders' Equity as of
the end of the Fiscal Quarter just ended; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated, if the
amount involved is in excess of 10% of Stockholders' Equity as of the
end of the Fiscal Quarter just ended; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of 10% of Stockholders' Equity as of
the end of the Fiscal Quarter just ended shall be rendered against the
Borrower or any Material Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or
any Material Subsidiary under Section 6323 of the Code or a lien of the
PBGC shall be filed against the Borrower or any Subsidiary under
Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing if the
aggregate amount involved is in excess of 10% of Stockholders' Equity
as of the end of the Fiscal Quarter just ended; or
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(l) (i) any Person or two or more Persons acting in concert
shall have acquired after the Closing Date beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 30% or more of the
outstanding shares of the voting stock of the Parent; or (ii) the
individuals who, as of the Closing Date, are members of the Board of
the Parent (the "Incumbent Board") cease for any reason thereafter to
constitute at least 66 2/3% of the Board of the Parent; provided,
however, that if the election, or nomination for election by the
Parent's stockholders, of any new director was approved by a vote of at
least 66 2/3% of the Incumbent Board, such new director shall, for
purposes of this Section 6.01(l), be considered as a member of the
Incumbent Board; or
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrowers terminate the Commitments and
they shall thereupon terminate, (ii) if requested by any Bank, by notice to the
Borrowers, terminate such Bank's obligation to fund a Money Market Loan in
connection with any relevant Money Market Quote, and (iii) if requested by the
Required Banks, by notice to the Borrowers, declare the Notes of all Borrowers
(together with accrued interest thereon), and all other amounts payable
hereunder and under the other Loan Documents, to be, and the Notes of all
Borrowers (together with accrued interest thereon), and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrowers together with
interest at the Default Rate accruing on the principal amount thereof during the
continuation of such Event of Default; provided that if any Event of Default
specified in paragraph (g) or (h) above occurs with respect to any Borrower,
without any notice to such Borrower or any other act by the Administrative Agent
or the Banks, the Commitments shall thereupon terminate and the Notes of all
Borrowers (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically and without
notice become immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers
together with interest thereon at the Default Rate accruing on the principal
amount thereof during the continuation of such Event of Default. Notwithstanding
the foregoing, the Administrative Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Banks.
SECTION 6.02. Notice of Default. The Administrative Agent
shall give notice to the Borrowers of any Default under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall thereupon notify all the
Banks thereof.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Appointment; Powers and Immunities. (a)
Each Bank hereby irrevocably appoints and authorizes the Administrative Agent to
act as its administrative agent hereunder and under the other Loan Documents
with such powers as are specifically delegated to the Administrative Agent by
the terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. The Administrative Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement or
any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Administrative Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Administrative
Agent and the Banks, and the Borrower shall not have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement and under the other Loan Documents, the
Administrative Agent shall act solely as administrative agent of the Banks and
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for the Borrower. The duties of the
Administrative Agent shall be ministerial and administrative in nature, and the
Administrative Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
(b) Each Bank hereby designates The First National Bank of
Chicago as the Syndication Agent. The Syndication Agent, in such capacity, shall
have no duties or obligations whatsoever under this Agreement or any other Loan
Document or any other document or any matter related hereto and thereto, but
shall nevertheless be entitled to all the indemnities and other protection
afforded to the Administrative Agent under this Article VII.
SECTION 7.02. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telecopier, telegram or
cable) believed by
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it to be genuine and correct and to have been signed or sent by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the Required Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03. Defaults. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default or an Event of Default
(other than the nonpayment of principal of or interest on the Loans) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default or an Event of Default, the Administrative Agent
shall give prompt notice thereof to the Banks. The Administrative Agent shall
give each Bank prompt notice of each nonpayment of principal of or interest on
the Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Administrative Agent shall (subject to Section 9.06) take such
action hereunder with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Banks.
SECTION 7.04. Rights of Administrative Agent as a Bank and its
Affiliates. With respect to the Loans made by the Administrative Agent and any
Affiliate of the Administrative Agent, the Administrative Agent in its capacity
as a Bank hereunder and any Affiliate of the Administrative Agent or such
Affiliate, Wachovia in its capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not acting as the Administrative Agent, and the term "Bank" or
"Banks" shall, unless the context otherwise indicates, include Wachovia in its
individual capacity and any Affiliate of the Administrative Agent in its
individual capacity. The Administrative Agent and any Affiliate of the
Administrative Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with any of the Borrowers (and any of the Borrowers'
Affiliates) as if the Bank were not acting as the Administrative Agent, and the
Administrative Agent and any Affiliate of the Administrative Agent may accept
fees and other consideration from the Borrowers (in addition to any agency fees
and arrangement fees heretofore agreed to between the Borrowers and the
Administrative Agent) for services in connection with this Agreement or any
other Loan Document or otherwise without having to account for the same to the
Banks.
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SECTION 7.05. Indemnification. Each Bank severally agrees to
indemnify the Administrative Agent, to the extent the Administrative Agent shall
not have been reimbursed by the Borrowers, ratably in accordance with its
Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, reasonable counsel fees and disbursements actually incurred) or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any other Loan Document or any other
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided,
however that no Bank shall be liable for any of the foregoing to the extent they
arise from the gross negligence or wilful misconduct of the Administrative
Agent; and provided further that no Designated Bank shall be liable for any
payment under this Section 7.05 so long as, and to the extent that, its
Designating Bank makes such payments. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative
Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT
SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWERS OR ANY OTHER
PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY
BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent and the provisions of Section 9.08(c) have been satisfied. Any requests,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that Note or of
any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.08. Nonreliance on Administrative Agent, Syndication
Agent and Other Banks. Each Bank agrees that it has, independently and without
reliance on the Administrative Agent, the Syndication Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrowers and decision to enter into this
Agreement and that it will, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
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Agreement or any of the other Loan Documents. Neither the Administrative Agent
nor the Syndication Agent shall be required to keep itself (or any Bank)
informed as to the performance or observance by the Borrowers of this Agreement
or any of the other Loan Documents or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Borrowers or
any other Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the
Administrative Agent hereunder or under the other Loan Documents, neither the
Administrative Agent nor the Syndication Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrowers or any
other Person (or any of their Affiliates) which may come into the possession of
the Administrative Agent or the Syndication Agent.
SECTION 7.09. Failure to Act. Except for action expressly
required of the Administrative Agent hereunder or under the other Loan
Documents, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction by the Banks of their indemnification
obligations under Section 7.05 against any and all liability and expense which
may be incurred by the Administrative Agent by reason of taking, continuing to
take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Borrowers and the Administrative Agent may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Administrative Agent's notice of resignation
or the Required Banks' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Banks and on 5 days prior
written notice to the Parent, appoint a successor Administrative Agent. Any
successor Administrative Agent shall be a bank which has a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any Interest Period
for any Fixed Rate Loan:
(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Banks advise the Administrative Agent that
the London Interbank Offered Rate, as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Banks of
funding the relevant type of Fixed Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrowers
and the Banks, whereupon until the Administrative Agent notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make the type of Fixed Rate Loans specified in such
notice shall be suspended. Unless the relevant Borrower notifies the
Administrative Agent prior to such Borrowing of such type of Fixed Rate Loans
for which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any Bank (or its
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrowers, whereupon
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Dollar Loans shall be suspended. If such Bank shall
determine that it may not lawfully continue to maintain and fund any of its
outstanding Euro-Dollar Loans to maturity and shall so specify in such notice,
the relevant Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Borrower from such Bank,
together with accrued interest thereon any amount due such Bank pursuant to
Section 8.05(a). Concurrently with prepaying each such Euro-Dollar Loan, such
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks), and such Bank shall make such
a Base Rate Loan.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the relevant Borrowers
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any Authority, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank, the
relevant Borrowers shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the relevant Borrower and
the Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
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(d) The provisions of this Section 8.03 (i) shall be
applicable with respect to any Assignee, and any calculations required by such
provisions shall be made based upon the circumstances of such Assignee and (ii)
shall constitute a continuing agreement and shall survive the termination of
this Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. Base Rate Loans or Other Fixed Rate Loans
Substituted for Affected Fixed Rate Loans. If (i) the obligation of any Bank to
make or maintain any type of Fixed Rate Loans has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03, and
the Borrower shall, by at least 5 Euro-Dollar Business Days' prior notice to
such Bank through the Administrative Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until such Bank notifies
the Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (and
interest and principal on such Loans shall be payable contemporaneously
with the related Fixed Rate Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the relevant Borrower and the Administrative Agent, such Borrower
shall pay to such Bank such amount or amounts as shall compensate such Bank for
any loss, cost or expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, 2.11,
6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other than the last day
of an Interest Period for such Fixed Rate Loan; or
(b) any failure by such Borrower to prepay a Fixed Rate Loan
on the date for prepayment thereof pursuant hereto or any failure by the
Borrower to borrow a Fixed Rate Loan on the date for the Fixed Rate Borrowing of
which such Fixed Rate Loan is a part specified in the applicable Notice of
Borrowing delivered pursuant to Section 2.02 or notification of acceptance of
Money Market Quotes pursuant to Section 2.03(e); such compensation to include,
without limitation, as applicable: (A) an amount equal to the excess, if any, of
(x) the amount of interest which would have accrued on the amount so paid or
prepaid or not prepaid or borrowed for the period from the date of such payment,
prepayment or failure to prepay or borrow to the last day of the then current
Interest Period for such Fixed Rate Loan (or, in the case of a failure to prepay
or borrow, the Interest Period for such Fixed Rate Loan which would have
commenced on the date of such failure to prepay or borrow) at the applicable
rate of interest for such Fixed Rate Loan provided for
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herein over (y) the amount of interest (as reasonably determined by such Bank)
such Bank would have paid on deposits in Dollars of comparable amounts having
terms comparable to such period placed with it by leading banks in the London
interbank market (if such Fixed Rate Loan is a Euro-Dollar Loan).
SECTION 8.06. Limitation on Certain Payment Obligations. (a)
Each Bank or the Administrative Agent shall make written demand on any Borrower
for indemnification or compensation pursuant to Section 8.05 no later than 90
after the event giving rise to the claim for indemnification or compensation
occurs.
(b) In the event that any Bank or the Administrative Agent
fails to give any Borrower notice within the applicable time limitation
prescribed in (a) above, neither such Borrower nor any other Borrower shall have
any obligation to pay such claim for compensation or indemnification hereunder.
No Borrower shall have any obligation to pay any amount to any Bank with respect
to claims accruing under Section 8.05 prior to the 90th day preceding written
demand therefor from such Bank.
SECTION 8.07. Alternate Lending Offices. Each Bank agrees, if
requested by the Borrowers, it will use reasonable efforts (subject to the
overall policy considerations of such Bank) to designate an alternate Lending
Office with respect to Loans affected by any of the matters or circumstances
prescribed in Section 2.12(c), 8.02 or 8.03 hereof in order to reduce the
liability of the Borrowers or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Bank as determined by such Bank,
which determination, if made in good faith, shall be conclusive and binding on
all parties hereto. Nothing in this Section 8.07 shall affect or postpone any of
the obligation of the Borrowers hereunder or any right of any Bank hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telecopier or similar writing) and shall be given to such party at its address
or telecopier number set forth on the signature pages hereof or such other
address or telecopier number as such party may hereafter specify for the purpose
by notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in this Section and the appropriate
confirmation is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid
addressed as aforesaid (except that any financial or other materials so sent
pursuant to Section 5.01 shall be effective when deposited in the mail) or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received.
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SECTION 9.02. No Waivers. No failure or delay by the
Administrative Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrowers shall
pay (i) all reasonable out-of-pocket expenses of the Administrative Agent, the
Syndication Agent, Banc One Capital Markets, Inc., as Lead Arranger and Wachovia
Securities, Inc., as Co-Arranger, including reasonable actual fees and
disbursements of special counsel for the Banks, the Administrative Agent, the
Syndication Agent, Banc One Capital Markets, Inc., as Lead Arranger and Wachovia
Securities, Inc., as Co-Arranger, in connection with the preparation of this
Agreement and the other Loan Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the Banks,
including reasonable actual fees and disbursements of counsel (including
allocated costs of in-house counsel), in connection with such Default and
collection and other enforcement proceedings resulting therefrom, including
reasonable out-of-pocket expenses incurred in enforcing this Agreement and the
other Loan Documents. The Borrowers shall indemnify the Administrative Agent and
each Bank against any transfer taxes, documentary taxes, and other similar
taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement or the other Loan Documents.
SECTION 9.04. Indemnification. Each Borrower shall indemnify
the Administrative Agent, the Banks and each Affiliate thereof and their
respective directors, officers, employees and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims or damages to which
any of them may become subject, insofar as such losses, liabilities, claims or
damages arise out of or result from any actual or proposed use by such Borrower
of the proceeds of any extension of credit by any Bank hereunder or breach by
such Borrower of this Agreement or any other Loan Document or from any
investigation, litigation (including, without limitation, any actions taken by
the Administrative Agent or any of the Banks to enforce this Agreement or any of
the other Loan Documents, unless the Borrowers prevail) or other proceeding
(including, without limitation, any threatened investigation or proceeding)
relating to the foregoing, and such Borrower shall reimburse the Administrative
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the negligence or wilful misconduct of the Person
to be indemnified or by reason of such Person's breach of its obligations
hereunder or other legal duty or which are the result of claims of Banks against
other
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Banks or the Administrative Agent not attributable to any Borrower's actions and
for which the Borrowers otherwise have no liability.
SECTION 9.05 Setoff; Sharing of Setoffs. (a) Each Borrower
hereby grants to the Administrative Agent and each Bank a lien for all
indebtedness and obligations owing to them from such Borrower under any of the
Loan Documents upon all deposits or deposit accounts, of any kind, or any
interest in any deposits or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Administrative Agent or any such Bank
or otherwise in the possession or control of the Administrative Agent or any
such Bank for any purpose for the account or benefit of such Borrower and
including any balance of any deposit account or of any credit of such Borrower
with the Administrative Agent or any such Bank, whether now existing or
hereafter established hereby authorizing the Administrative Agent and each Bank
at any time or times upon the occurrence and during the continuation of any
Event of Default with or without prior notice to apply such balances or any part
thereof to such of the indebtedness and obligations owing by such Borrower to
the Banks and/or the Administrative Agent then past due and in such amounts as
they may elect, and whether or not the collateral, if any, or the responsibility
of other Persons primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances and property shall
be deemed to be in the possession of the Administrative Agent or any such Bank
as soon as the same may be put in transit to it by mail or carrier or by other
bailee.
(b) Each Bank agrees that if it shall, by exercising any right
of setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may
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effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the relevant Borrower in the amount of such participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes, the Guaranty or any other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Banks (and, if the rights or duties of
the Administrative Agent are affected thereby, by the Administrative Agent);
provided that, no such amendment or waiver shall, unless signed by all Banks,
(i) change the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees (other than fees payable to the Administrative Agent) hereunder, (iii)
change the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) reduce the amount of principal, interest or fees due on
any date fixed for the payment thereof, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Notes, (vii) release or substitute all or any substantial part of the
collateral (if any) held as security for the Loans, or (viii) release any
Guarantee given to support payment of the Loans.
(b) None of the Borrowers will solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the provisions
of this Agreement unless each Bank shall be informed thereof by such Borrower
and shall be afforded an opportunity of considering the same and shall be
supplied by the Borrower with sufficient information to enable it to make an
informed decision with respect thereto. Executed or true and correct copies of
any waiver or consent effected pursuant to the provisions of this Agreement
shall be delivered by the Borrowers to each Bank forthwith following the date on
which the same shall have been executed and delivered by the requisite
percentage of Banks. None of the Borrowers will, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Bank (in its capacity as such) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
(c) Each Designated Bank hereby appoints its Designating Bank
as such Designated Bank's agent and attorney in fact and grants to Designating
Bank an irrevocable power of attorney, coupled with an interest, to receive
payments made for the benefit of Designated Bank under this Agreement, to
deliver and receive all communications and notices under this Agreement and
other Loan Documents and to exercise on such Designated
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Bank's behalf all rights to vote and to grant and make approvals, waivers,
consent of amendments to or under this Agreement or other Loan Documents. Any
document executed by such agent on such Designated Bank's behalf in connection
with this Agreement or other Loan Documents shall be binding on such Designated
Bank. The Borrowers, the Administrative Agent and each of the Banks may rely on
and are beneficiaries of the preceding provisions.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
represents to the Administrative Agent and each of the other Banks that it in
good faith is not, directly or indirectly (by negative pledge or otherwise),
relying upon any Margin Stock as collateral in the extension or maintenance of
the credit provided for in this Agreement.
SECTION 9.08. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that none of the
Borrowers may assign or otherwise transfer any of its rights under this
Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is
payable hereunder from the rate at which the Participant is entitled to receive
interest or fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any Guarantee given
to support payment of the Loans. Each Bank selling a participating interest in
any Loan, Note, Commitment or other interest under this Agreement, other than a
Money Market Loan or Money Market Loan Note or participating interest therein,
shall, within 10 Domestic Business Days of such sale, provide the Borrower and
the Administrative Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant. The Borrower agrees that each Participant shall be entitled to the
benefits of Section 2.12(c) and Article VIII with
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respect to its participation in Loans outstanding from time to time, but not to
receive payment pursuant thereto in an amount greater than its share of the
amount to which the Bank selling such participations would be entitled.
Notwithstanding anything herein to the contrary, no Bank may sell any
participating interests in its Loans or Commitments hereunder to any Person
other than another Bank or to an Affiliate of such Bank or any other Bank in an
amount (after giving effect to all other permitted assignments or participations
made by such Bank) in excess of 50% of such Loans and Commitments, except that
such limitations shall not apply to any such participating interests sold at any
time there exists a Default or in order to satisfy any law or regulatory
requirement applicable to such Bank.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or in the case of its
Syndicated Loans and Commitments, a proportionate part of all its Syndicated
Loans and Commitments, of its rights and obligations under this Agreement, the
Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed by
such Assignee, such transferor Bank and the Administrative Agent (and, in the
case of an Assignee that is not then a Bank, subject to clauses (iii) below, by
the Parent); provided that (i) no interest may be sold by a Bank pursuant to
this paragraph (c) unless the Assignee shall agree to assume ratably equivalent
portions of the transferor Bank's Commitment, (ii) if a Bank is assigning only a
portion of its Commitment, then, the amount of the Commitment being assigned
(determined as of the effective date of the assignment) shall be in an amount
not less than $10,000,000, or such lesser amount as is equal to its entire
Commitment, and (iii) except during the continuance of a Default, no interest
may be sold by a Bank pursuant to this paragraph (c) to any Assignee that is not
then a Bank (or an Affiliate or Related Fund of a Bank) without the consent of
the Parent and the Administrative Agent, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, if any proceeds of the Loans are
intended by any of the Borrowers to be used in connection with, whether directly
or indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation,
unless such tender offer or other acquisition is to be made on a negotiated
basis with the approval of the Board of Directors of the Person to be acquired,
the Parent will so advise the Administrative Agent and the Banks, and the
consent of the Parent to any assignment by any Bank shall not be required, so
long as such Bank (1) has notified the Parent of its intent to so assign within
10 days of the funding of such Loan, (2) diligently pursues such assignment, and
(3) concludes such assignment within a reasonable time after it has given such
notice to the Parent. Upon (A) execution of the Assignment and Acceptance by
such transferor Bank, such Assignee, the Administrative Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrowers and the Administrative Agent, (C) payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment of a processing
and recordation fee of $3,000 to the Administrative Agent, such Assignee shall
for all purposes be a Bank party to this Agreement
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and shall have all the rights and obligations of a Bank under this Agreement to
the same extent as if it were an original party hereto with a Commitment as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by the Borrower, the Banks or the Administrative Agent
shall be required. Upon the consummation of any transfer to an Assignee pursuant
to this paragraph (c), the transferor Bank, the Administrative Agent and the
Borrowers shall make appropriate arrangements so that, if required, a new Note
from each Borrower is issued each of such Assignee and such transferor Bank and
such transferor Bank.
(d) Subject to the provisions of Section 9.09 (which shall be
binding upon each such Transferee), the Borrowers authorize each Bank to
disclose to any Participant, Assignee or other transferee (each a "Transferee")
and any prospective Transferee any and all financial information in such Bank's
possession concerning the Borrowers which has been delivered to such Bank by the
Borrowers pursuant to this Agreement or which has been delivered to such Bank by
the Borrowers in connection with such Bank's credit evaluation prior to entering
into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 2.12(c) or Section 8.03 than the transferor Bank would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior written consent or by reason of
the provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(g) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrowers to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrowers'
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
(h) If (i) any Taxes referred to in Section 2.12(c) have been
levied or imposed so as to require withholdings or deductions by any Borrower
and payment by such Borrower of additional amounts to any Bank as a result
thereof or (ii) any Bank shall make demand for payment of any material
additional amounts as compensation for increased costs or for its reduced rate
of return pursuant to Section 8.02 or 8.03, then and in any such event, upon
request from the Borrowers delivered to such Bank and the Administrative Agent,
such Bank shall assign, in accordance with the provisions of Section 9.08(c),
all of its rights and obligations under this Agreement and the other Loan
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Documents to another Bank or another assignee selected by the Borrower and
acceptable to the Administrative Agent (and the Administrative Agent shall not
unreasonably withhold its acceptance thereof) upon the payment by such assignee
to such Bank of the principal of and interest on the outstanding Loans of such
Bank accrued to the date of assignment and the assumption of such Bank's
remaining Commitments hereunder, together with any and all other amounts owing
to such Bank under any other provisions of this Agreement or the other Loan
Documents accrued to the date of such assignment, and compliance in all other
respects with the provisions of Section 9.08(c).
(i) Any Bank may at any time designate not more than one
Designated Bank to fund Money Market Loans or Syndicated Loans on behalf of such
Designating Bank subject to the terms of this Section 9.08(i), and the
provisions of Section 9.08(c) shall not apply to such designation. No Bank may
have more than one Designated Bank at any time. Such designation may occur
either by the execution of the signature pages hereof by such Bank and
Designated Bank next to the appropriate "Designating Bank" and "Designated Bank"
captions, or by execution by such parties of a Designation Agreement subsequent
to the date hereof; provided, that any Bank and its Designated Bank executing
the signatures pages hereof as "Designating Bank" and "Designated Bank",
respectively, on the date hereof shall be deemed to have executed a Designation
Agreement, and shall be bound by the respective representations, warranties and
covenants contained therein, and such designation shall be conclusively deemed
to be acknowledged by the Borrowers and the Administrative Agent. The parties to
each such designation occurring subsequent to the execution date hereof shall
execute and deliver to the Administrative Agent and the Borrowers for their
acknowledgment a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Bank and a designee
representing that it is a Designated Bank and acknowledged by the Borrowers, the
Administrative Agent will acknowledge such Designation Agreement and will give
prompt notice thereof to the Borrowers and the other Banks, whereupon, (i) the
Borrowers shall execute and deliver to the Designating Bank a Designated Bank
Note payable to the order of the Designated Bank, (ii) from and after the
effective date specified in the Designation Agreement, the Designated Bank shall
become a party to this Agreement with a right to make Loans on behalf of its
Designating Bank pursuant to Section 2.03(h), and (iii) the Designated Bank
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Bank which
is not otherwise required to repay obligations of such Designated Bank which are
then due and payable; provided, however, that regardless of such designation and
assumption by the Designated Bank, the Designating Bank shall be and remain
obligated to the Borrowers, the Administrative Agent and the Banks for each and
every obligation of the Designating Bank and its related Designated Bank with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 7.05 and any sums otherwise payable to the Borrowers
by the Designated Bank. Each Designating Bank, or a specified branch or
affiliate thereof, shall serve as the administrative agent of its Designated
Bank and shall on behalf of its Designated Bank: (i) receive any and
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all payments made for the benefit of such Designated Bank and (ii) give and
receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers, consents and
amendments under or relating to this Agreement and the other Loan Documents. Any
such notice, communication, vote, approval, waiver, consent or amendment shall
be signed by a Designating Bank, or specified branch or affiliate thereof, as
administrative agent for its Designated Bank and need not be signed by such
Designated Bank on its own behalf. The Borrowers, the Administrative Agent and
the Banks may rely thereon without any requirement that the Designated Bank sign
or acknowledge the same. No Designated Bank may assign or transfer all or any
portion of its interest hereunder or under any other Loan Document, other than
via an assignment to its Designating Bank or Liquidity Bank (but any assignment
to a Liquidity Bank shall not curtail or affect the appointment or rights of the
Designating Bank pursuant to Section 9.06(c) or Section 4 of the Designation
Agreement, which appointment and rights are irrevocable), if any, or otherwise
in accordance with the provisions of Section 2.03(h).
SECTION 9.09. Confidentiality. Unless otherwise agreed to in
writing by the Parent, each Bank and the Administrative Agent hereby agrees to
keep all Proprietary Information confidential and not to disclose or reveal any
Proprietary Information to any Person other than its (or its Affiliates,)
directors, officers, employees, agents or representatives who reasonably require
such information in connection with their activities concerning this Agreement
or the transactions contemplated hereby and to actual or potential Assignees,
Participants, or Transferees, and then only upon a confidential basis in any
such case; provided, however, that the Administrative Agent or any Bank may
disclose Proprietary Information (i) to any other Bank, (ii) to the extent
reasonably required in connection with any litigation to which the
Administrative Agent, any Bank or their respective Affiliates may be a party,
(iii) to the extent reasonably required in connection with the exercise of any
remedy hereunder, (iv) as required by law, rule, regulation or judicial process,
(v) to its attorneys, accountants or other consultants (but only on a
confidential basis), (vi) to bank regulatory authorities or other governmental
authorities and (vii) by any Designated Bank to any rating agency, commercial
paper dealer, or provider of a surety, guaranty or credit or liquidity
enhancement to such Designated Bank which has agreed in writing to be bound by
the provisions of this Section 9.09. For purposes of this Agreement, the term
"Proprietary Information" shall mean all information about the Parent or any of
its Subsidiaries which has been furnished to the Administrative Agent or any
Bank by or on behalf of the Parent or any of its Subsidiaries before or after
the date hereof or which is obtained by any Bank or the Administrative Agent in
the course of any visit or inspection made pursuant to Section 5.02; provided,
however, that the term "Proprietary Information" does not include information
which (x) is or becomes publicly available (other than as a result of a breach
of this Section 9.09), (y) is possessed by or available to the Administrative
Agent or any Bank on a non-confidential basis prior to its disclosure to the
Administrative Agent or such Bank by any Borrower or Subsidiary or (z) becomes
available to the
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Administrative Agent or any Bank on a non-confidential basis from a Person
which, to the knowledge of the Administrative Agent or such Bank, as the case
may be, is not bound by a confidentiality agreement with the Parent or any of
its Subsidiaries and is not otherwise prohibited from transmitting such
information to the Administrative Agent or such Bank. In the event the
Administrative Agent or any Bank is required to disclose any Proprietary
Information by virtue of clause (ii) (but only if and to the extent such
disclosure has not been sought by the Administrative Agent or any Bank, and if
neither the Parent nor any Borrower is a party to such litigation), (iv) or (v)
above, to the extent such Bank or the Administrative Agent (as the case may be)
determines in good faith that it is permissible by law so to do, it shall
promptly notify the Parent of same so as to allow the Parent or its Subsidiaries
to seek a protective order or to take other appropriate action; provided,
however, neither any Bank nor the Administrative Agent shall be required to
delay compliance with any directive to disclose any such information so as to
allow the Parent or any of Subsidiaries to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided,
however that, subject to Section 9.08, the disposition of the Note or Notes held
by that Bank shall at all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each
Note shall be construed in accordance with and governed by the
law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes, the Guaranty or any of the
other Loan Documents should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount
of interest, and all charges, amounts or fees contracted for, charged or
collected pursuant to this Agreement, the Notes or the other Loan Documents and
deemed to be interest under applicable
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law (collectively, "Interest") exceed the highest rate of interest allowed by
applicable law (the "Maximum Rate"), and in the event any such payment is
inadvertently received by any Bank, then the excess sum (the "Excess") shall be
credited as a payment of principal, unless the relevant Borrower shall notify
such Bank in writing that it elects to have the Excess returned forthwith. It is
the express intent hereof that the Borrower not pay and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by such Borrower under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to accelerate
any interest that has not otherwise accrued on the date of such acceleration,
and the Administrative Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the
Administrative Agent or the Banks hereunder or under any of the Notes or the
other Loan Documents, whether at maturity or by prepayment, shall be subject to
rebate of unearned interest as and to the extent required by applicable law. By
the execution of this Agreement, each Borrower covenants, to the fullest extent
permitted by law, that (i) the credit or return of any Excess shall constitute
the acceptance by the Borrower of such Excess, and (ii) such Borrower shall not
seek or pursue any other remedy, legal or equitable , against the Administrative
Agent or any Bank, based in whole or in part upon contracting for charging or
receiving any Interest in excess of the Maximum Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by the Administrative Agent or any Bank, all interest at any time
contracted for, charged or received from such Borrower in connection with this
Agreement, the Notes or any of the other Loan Documents shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Commitments. The Borrower, the
Administrative Agent and each Bank shall, to the maximum extent permitted under
applicable law, (i) characterize any non- principal payment as an expense, fee
or premium rather than as Interest and (ii) exclude voluntary prepayments and
the effects thereof. The provisions of this Section shall be deemed to be
incorporated into each Note and each of the other Loan Documents (whether or not
any provision of this Section is referred to therein). All such Loan Documents
and communications relating to any Interest owed by any Borrower and all figures
set forth therein shall, for the sole purpose of computing the extent of
obligations hereunder and under the Notes and the other Loan Documents be
automatically recomputed by such Borrower, and by any court considering the
same, to give effect to the adjustments or credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
Each Borrower (a) and each of the Banks and the Administrative Agent irrevocably
waives, to the fullest extent permitted by law, any and all right to trial by
jury in any legal
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proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (d) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the such Person. Nothing herein contained, however, shall
prevent the Administrative Agent from bringing any action or exercising any
rights against any security and against any Borrower personally, and against any
assets of any Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks
hereby severally (and not jointly) represents to the Borrowers that no part of
the funds to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section, the
terms "employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
SECTION 9.19. References Regarding Foreign Subsidiaries. Any
references herein to any officer or organic document of any Foreign Subsidiary
shall be deemed to refer to the equivalent to such officer or document in the
jurisdiction of such Person's incorporation or organization.
SECTION 9.20. No Bankruptcy Proceedings. Each of the
Borrowers, the Banks, the Administrative Agent and the Syndication Agent agrees
that it will not institute against any Designated Bank or join any other Person
in instituting against any Designated Bank any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the payment in full of
the latest maturing commercial paper note issued by such Designated Bank.
SECTION 9.21. Entire Agreement. This Agreement, the other Loan
Documents, and the Administrative Agent's Letter Agreement and the Syndication
Agent's Letter Agreement (in each case except as provided below) supersede any
prior agreement or understanding of the parties hereto (including any term sheet
attached to either the Administrative Agent's Letter Agreement and the
Syndication Agent's Letter Agreement) with respect to the matters covered
hereby.
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[Signatures are contained on the following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
NATIONAL SERVICE INDUSTRIES,
INC. (SEAL)
By: /s/ Brock A. Hattox
----------------------------------
Title:
National Service Industries, Inc.
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier number: 404-853-1330
Confirmation number: 404-853-1368
NSI LEASING, INC. (SEAL)
By: /s/ Brock A. Hattox
----------------------------------
Title:
NSI Leasing, Inc.
c/o National Service
Industries, Inc.
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier number: 404-853-1330
Confirmation number: 404-853-1368
70
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NSI ENTERPRISES, INC. (SEAL)
By: /s/ Brock A. Hattox
----------------------------------
Title:
NSI Enterprises, Inc.
c/o National Service
Industries, Inc.
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier number: 404-853-1330
Confirmation number: 404-853-1368
71
<PAGE> 78
COMMITMENTS
- ------------
$37,500,000 THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent and as a
Bank (SEAL)
By: /s/ David McNeela
----------------------------------
Title: Vice President
Lending Office
The First National Bank of Chicago
One First National Plaza
Mail Suite 0324
Chicago, Illinois 60670-0324
Attention: David McNeela
Telecopier number: 312-732-5296
Confirmation number: 312-732-5730
72
<PAGE> 79
$37,500,000 WACHOVIA BANK, N.A.,
as Administrative Agent and as a
Bank (SEAL)
By: /s/ Thomas Gleason
------------------------------------------
Title: Senior Vice President
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Telecopier number: 404-332-1394
Confirmation number: 404-332-6971
73
<PAGE> 80
$32,500,000 ABN AMRO, N.V.,
as a Bank (SEAL)
By: /s/ Jerold M. Sniderman
---------------------------------------
Title: Group Vice President
By: /s/ Robert A. Budnek
---------------------------------------
Title: Vice President
Lending Office
ABN AMRO Bank
208 S. LaSalle Street
Suite 1500
Chicago, Ill. 60604-1003
Attn: Loan Administration
Telecopier number: 312-992-5157
Confirmation number: 312-992-5152
Copy to:
ABN AMRO Bank
1 Ravinia Drive
Suite 1200
Atlanta, Georgia 30346
Attention: Steve Farley
Telecopier number: 770-399-7397
Confirmation number: 404-399-7378
74
<PAGE> 81
$32,500,000 COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH,
as Co-Agent and a Bank (SEAL)
By: /s/ Harry P. Yergey
----------------------------------
Title: SVP & Manager
By: Brian J. Cambell
----------------------------------
Title: Vice President
Lending Office
Commerzbank, AG, Atlanta Agency
1230 Peachtree Street
Promenade 2
35th Floor
Atlanta, Georgia 30309
Attention: Brian Campbell
Telecopier number: 404-888-6539
Confirmation number: 404-888-6518
75
<PAGE> 82
$25,000,000 THE BANK OF NEW YORK,
as a Bank (SEAL)
By: /s/ David Siegel
----------------------------------
Title: Vice President
Lending Office
The Bank of New York
One Wall Street
New York, NY 10286
Attention: David Siegel
Telecopier number: 212-635-6434
Confirmation number: 212-635-6899
76
<PAGE> 83
$20,000,000 BANK OF AMERICA, N.A.
as a Bank (SEAL)
By: /s/ Kathryn W. Robinson
----------------------------------
Title: Managing Director
Lending Office
Bank of America, N.A.
600 Peachtree Street, N.E.
9th Floor
Atlanta, Georgia 30308
Attention: Kathryn Robinson
Telecopier number: 404-607-6467
Confirmation number: 404-607-5887
77
<PAGE> 84
$25,000,000 MELLON BANK, N.A.,
as a Bank (SEAL)
By: /s/ Charles A. Stuart
----------------------------------
Title: First Vice President
Lending Office
Mellon Bank, N.A.
One Mellon Bank Center
Room 4530
Pittsburgh, PA 15258-0001
Attention: Daniel J. Lenckos
Telecopier number: 412-236-1914
Confirmation number: 412-234-0733
78
<PAGE> 85
$20,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Bank (SEAL)
By: /s/ Robert Bottamedi
---------------------------------
Title: Vice President
Lending Office
Morgan Guaranty Trust Company
of New York
60 Wall Street
New York, New York 10260-0060
Attention: Dennis Wilczek
Telecopier number:212-648-5018
Confirmation number:212-648-1265
79
<PAGE> 86
$20,000,000 SUNTRUST BANK, ATLANTA,
as a Bank (SEAL)
By: /s/ Linda L. Dash
---------------------------------
Title: Vice President
Lending Office
SunTrust Bank, Atlanta
303 Peachtree Street, N.E.
3rd Floor
Atlanta, Georgia 30308
Attention: Linda L. Dash
Telecopier number: 404-658-4905
Confirmation number: 404-658-4923
80
