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Exhibit 10(i)A(5)
AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (this "Amendment") is
entered into as of May 24, 2001, by and among:
(a) NSI Funding, Inc., a Delaware corporation ("Borrower"),
(b) National Service Industries, Inc., a Georgia corporation, as initial
Servicer (together with Borrower, the "Loan Parties" and each, a "Loan Party"),
(c) Wachovia Bank, N.A., a national banking association, and Blue Ridge
Asset Funding Corporation, a Delaware corporation (together with their
respective successors and assigns, the "Lenders"), and
(d) Wachovia Bank, N.A., as agent for the Lenders (together with its
successors and assigns, the "Agent"),
with respect to that certain Credit and Security Agreement dated as of May 2,
2001, by and among the Borrower, the Servicer, the Lenders and the Agent (the
"Existing Agreement" which, as amended hereby, is hereinafter referred to as the
"Agreement").
Unless otherwise indicated, capitalized terms used in this Amendment are
used with the meanings attributed thereto in the Existing Agreement.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Existing Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
1. Amendments to Existing Agreement. Upon execution of this Amendment by
all parties hereto, the parties hereby agree that:
(a) Section 9.1(g)(i) of the Existing Agreement is hereby amended to delete
"4.25%" where it appears and to substitute in lieu thereof "2.85%," and
(b) Section 14.9 of the Existing Agreement is hereby amended to delete "NEW
YORK" where it appears and to substitute in lieu thereof "GEORGIA."
(c) The definition of "Monthly Reporting Date" in Exhibit I to the Existing
Agreement is hereby amended and restated in its entirety to read as follows:
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Exhibit 10(i)A(5)
"Monthly Reporting Date" means the 15th Business Day of each month after
the date of this Agreement (or such other days of each month as the Agent shall
request in connection with Section 8.5 hereof).
2. Representations.
2.1. Each of the Loan Parties represents and warrants to the Lenders and
the Agent that it has duly authorized, executed and delivered this Amendment and
that the Agreement constitutes a legal, valid and binding obligation of such
Loan Party, enforceable in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability).
2.2. Each of the Loan Parties further represents and warrants to the
Lenders and the Agent that each of its representations and warranties set forth
in Section 5.1 of the Agreement is true and correct as of the date hereof and
that no Amortization Event or Unmatured Amortization Event exists as of the date
hereof and is continuing.
3. Conditions Precedent. This Amendment shall become effective as of the
date first above written upon receipt by the Agent of a counterpart hereof duly
executed by each of the parties hereto (including the Performance Guarantor).
4. Miscellaneous.
4.1. Except as expressly amended hereby, the Existing Agreement shall
remain unaltered and in full force and effect, and each of the parties hereby
ratifies and confirms the Agreement and each of the other Transaction Documents
to which it is a party.
4.2. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA.
4.3. EACH PARTY TO THIS AMENDMENT HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR GEORGIA STATE COURT
SITTING IN FULTON COUNTY, GEORGIA, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO
THE AGREEMENT, AND EACH SUCH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY LOAN PARTY AGAINST THE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
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Exhibit 10(i)A(5)
CONNECTED WITH THE AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH LOAN PARTY
PURSUANT TO THE AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN FULTON COUNTY,
GEORGIA.
4.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THE AGREEMENT, ANY DOCUMENT
EXECUTED BY ANY LOAN PARTY PURSUANT TO THE AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
4.5. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Amendment.
{Signature pages follow}
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Exhibit 10(i)A(5)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date hereof.
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, N.A., ITS ATTORNEY-IN-FACT
By: __________________________________
Name:
Title:
WACHOVIA BANK, N.A., AS A LIQUIDITY BANK AND AS AGENT
By:____________________________________
Name:
Title:
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Exhibit 10(i)A(5)
NSI Funding, Inc.,
A DELAWARE CORPORATION, AS BORROWER
By:____________________________________
Name:
Title:
National Service Industries, Inc.,
A GEORGIA CORPORATION, AS SERVICER
By:____________________________________
Name:
Title:
The undersigned, as Performance Guarantor, hereby consents to the foregoing
amendment and confirms that its Performance Undertaking remains unaltered and in
full force and effect after giving effect to such amendment:
National Service Industries, Inc.,
A DELAWARE CORPORATION, AS PERFORMANCE GUARANTOR
By:____________________________________
Name:
Title:
National Service Industries Inactive
Filed: 3 Jul 01, 12:00am