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Exhibit 4.2
BUSINESS LOAN AGREEMENT
This Agreement dated as of April 16, 1998, is between Bank of
America National Trust and Savings Association (the "Bank") and McGrath RentCorp
(the "Borrower").
1. SHORT-TERM LOAN AMOUNT AND TERMS
1.1 Loan Amount. The Bank agrees to provide a short-term loan to
the Borrower in the amount of Fifteen Million Dollars ($15,000,000) (the
"Commitment").
1.2 Availability Period. The loan is available in one
disbursement from the Bank between the date of this Agreement and April 30,
1998, unless the Borrower is in default.
1.3 Interest Rate.
(a) Unless the Borrower elects an optional interest rate
as described below, the interest rate is the Bank's Reference Rate minus
one-half (0.5) percentage point.
(b) The Reference Rate is the rate of interest publicly
announced from time to time by the Bank in San Francisco, California, as
its Reference Rate. The Reference Rate is set by the Bank based on
various factors, including the Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference point
for pricing some loans. The Bank may price loans to its customers at,
above, or below the Reference Rate. Any change in the Reference Rate
shall take effect at the opening of business on the day specified in the
public announcement of a change in the Bank's Reference Rate.
1.4 Repayment Terms.
(a) The Borrower will pay all accrued but unpaid interest
on May 1, 1998, and then on the first day of each month thereafter until
payment in full of the principal of the loan.
(b) The Borrower will repay in full any principal,
interest or other outstanding charges on the loan on the earlier of (i)
July 31, 1998, or (ii) the day that is 3 banking days after the date on
which the Borrower receives the net proceeds of that certain pending
private offering of debt securities of the Borrower in the total amount
of Forty Million Dollars ($40,000,000).
(c) The Borrower may prepay the loan in full or in part at
any time in an amount not less than Five Hundred Thousand Dollars
($500,000).
1.5 Optional Interest Rates. Instead of the interest rate based
on the Bank's Reference Rate, the Borrower may elect the optional interest rates
listed below during interest periods agreed to by the Bank and the Borrower. The
optional interest rates shall be subject to the terms and conditions described
later in this Agreement. Any principal amount bearing interest at an optional
rate under this Agreement is referred to as a "Portion." The following optional
interest rates are available:
(a) the IBOR Rate plus seven-tenths (0.7) percentage
point.
(b) the LIBOR Rate plus seven-tenths (0.7) percentage
point.
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2. OPTIONAL INTEREST RATES
2.1 Optional Rates. Each optional interest rate is a rate per
year. Interest will be paid on the last day of each interest period, and, if the
interest period is longer than one month, then on the first day of each month
during the interest period. At the end of any interest period, the interest rate
will revert to the rate based on the Reference Rate, unless the Borrower has
designated another optional interest rate for the Portion. No Portion will be
converted to a different interest rate during the applicable interest period.
Upon the occurrence of an event of default under this Agreement, the Bank may
terminate the availability of optional interest rates for interest periods
commencing after the default occurs.
2.2 IBOR Rate. The election of IBOR Rates shall be subject to
the following terms and requirements:
(a) The interest period during which the IBOR Rate will be
in effect will be no shorter than 7 days and will end no later than July
31, 1998. The last day of the interest period will be determined by the
Bank using the practices of the offshore dollar inter-bank market.
(b) Each IBOR Rate Portion will be for an amount not less
than One Million Dollars ($1,000,000).
(c) The Borrower may not elect a IBOR Rate with respect to
any principal amount which is scheduled to be repaid before the last day
of the applicable interest period.
(d) The "IBOR Rate" means the interest rate determined by
the following formula, rounded upward to the nearest 1/100 of one percent.
(All amounts in the calculation will be determined by the Bank as of the
first day of the interest period.)
IBOR Rate = IBOR Base Rate
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(1.00 - Reserve Percentage)
Where,
(i) "IBOR Base Rate" means the interest rate at
which the Bank's Grand Cayman Branch, Grand Cayman, British West
Indies, would offer U.S. dollar deposits for the applicable interest
period to other major banks in the offshore dollar inter-bank
market.
(ii) "Reserve Percentage" means the total of the
maximum reserve percentages for determining the reserves to be
maintained by member banks of the Federal Reserve System for
Eurocurrency Liabilities, as defined in Federal Reserve Board
Regulation D, rounded upward to the nearest 1/100 of one percent.
The percentage will be expressed as a decimal, and will include, but
not be limited to, marginal, emergency, supplemental, special, and
other reserve percentages.
(e) Each prepayment of an IBOR Rate Portion, whether
voluntary, by reason of acceleration or otherwise, will be accompanied by
the amount of accrued interest on the amount prepaid, and a prepayment fee
as described below. A "prepayment" is a payment of an amount on a date
earlier than the scheduled payment date for such amount as required by
this Agreement. The prepayment fee shall be equal to the amount (if any)
by which:
(i) the additional interest which would have been
payable during the interest period on the amount prepaid had it not
been prepaid, exceeds
(ii) the interest which would have been recoverable
by the Bank by placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market, or
other appropriate money market selected by the Bank for a
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period starting on the date on which it was prepaid and ending on
the last day of the interest period for such Portion (or the
scheduled payment date for the amount prepaid, if earlier).
(f) The Bank will have no obligation to accept an election
for an IBOR Rate Portion if any of the following described events has
occurred and is continuing:
(i) Dollar deposits in the principal amount, and
for periods equal to the interest period, of an IBOR Rate Portion
are not available in the offshore dollar inter-bank market; or
(ii) the IBOR Rate does not accurately reflect the
cost of an IBOR Rate Portion.
2.3 LIBOR Rate. The election of LIBOR Rates shall be subject to
the following terms and requirements:
(a) The interest period during which the LIBOR Rate will
be in effect will be one, two or three weeks, or one, two, or three months
but will end no later than July 31, 1998. The first day of the interest
period must be a day other than a Saturday or a Sunday on which the Bank is
open for business in California, New York and London and dealing in
offshore dollars (a "LIBOR Banking Day"). The last day of the interest
period and the actual number of days during the interest period will be
determined by the Bank using the practices of the London inter-bank market.
(b) Each LIBOR Rate Portion will be for an amount not less
than One Million Dollars ($1,000,000).
(c) The "LIBOR Rate" means the interest rate determined by
the following formula, rounded upward to the nearest 1/100 of one percent.
(All amounts in the calculation will be determined by the Bank as of the
first day of the interest period.)
LIBOR Rate = London Inter-Bank Offered Rate
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(1.00 - Reserve Percentage)
Where,
(i) "London Inter-Bank Offered Rate" means the
interest rate at which the Bank's London Branch, London, Great
Britain, would offer U.S. dollar deposits for the applicable
interest period to other major banks in the London inter-bank market
at approximately 11:00 a.m. London time two (2) London Banking Days
before the commencement of the interest period. A "London Banking
Day" is a day on which the Bank's London Branch is open for business
and dealing in offshore dollars.
(ii) "Reserve Percentage" means the total of the
maximum reserve percentages for determining the reserves to be
maintained by member banks of the Federal Reserve System for
Eurocurrency Liabilities, as defined in Federal Reserve Board
Regulation D, rounded upward to the nearest 1/100 of one percent.
The percentage will be expressed as a decimal, and will include, but
not be limited to, marginal, emergency, supplemental, special, and
other reserve percentages.
(d) The Borrower shall irrevocably request a LIBOR Rate
Portion no later than 12:00 noon San Francisco time on the LIBOR Banking
Day preceding the day on which the London Inter-Bank Offered Rate will be
set, as specified above. For example, if there are no intervening holidays
or weekend days in any of the relevant locations, the request must be made
at least three days before the LIBOR Rate takes effect.
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(e) The Borrower may not elect a LIBOR Rate with respect
to any principal amount which is scheduled to be repaid before the last
day of the applicable interest period.
(f) Each prepayment of a LIBOR Rate Portion, whether
voluntary, by reason of acceleration or otherwise, will be accompanied by
the amount of accrued interest on the amount prepaid and a prepayment fee
as described below. A "prepayment" is a payment of an amount on a date
earlier than the scheduled payment date for such amount as required by
this Agreement. The prepayment fee shall be equal to the amount (if any)
by which:
(i) the additional interest which would have been
payable during the interest period on the amount prepaid had it not
been prepaid, exceeds
(ii) the interest which would have been recoverable
by the Bank by placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market, or
other appropriate money market selected by the Bank, for a period
starting on the date on which it was prepaid and ending on the last
day of the interest period for such Portion (or the scheduled
payment date for the amount prepaid, if earlier).
(g) The Bank will have no obligation to accept an election
for a LIBOR Rate Portion if any of the following described events has
occurred and is continuing:
(i) Dollar deposits in the principal amount, and
for periods equal to the interest period, of a LIBOR Rate Portion
are not available in the London inter-bank market; or
(ii) the LIBOR Rate does not accurately reflect the
cost of a LIBOR Rate Portion.
3. EXPENSES
The Borrower agrees to reimburse the Bank for any expenses it
incurs in the preparation of this Agreement and any agreement or instrument
required by this Agreement up to a maximum of Five Thousand Dollars ($5,000).
Expenses include, but are not limited to, reasonable attorneys' fees, including
any allocated costs of the Bank's in-house counsel.
4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 Requests for Credit.
(a) Each request for an extension of credit will be made
in writing in a manner acceptable to the Bank, or by another means
acceptable to the Bank.
(b) Unless otherwise agreed by the Bank and the Borrower,
disbursement of the proceeds of the loan made under this Agreement shall
be made by wire transfer to such account with such financial institution
as may be designated by the Borrower and acceptable to the Bank. The
Borrower shall execute any standard Bank forms as may be required by the
Bank with respect to such wire transfer. The Bank may terminate its
willingness to disburse the proceeds of the loan by wire transfer
immediately upon any default under this Agreement or for other
reasonable cause.
4.2 Disbursements and Payments. Each disbursement by the Bank and
each payment by the Borrower will be:
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(a) made at the Bank's branch (or other location) selected
by the Bank from time to time;
(b) made for the account of the Bank's branch selected by
the Bank from time to time;
(c) made in immediately available funds, or such other
type of funds selected by the Bank;
(d) evidenced by records kept by the Bank. In addition,
the Bank may, at its discretion, require the Borrower to sign one or
more promissory notes.
4.3 Telephone and Telefax Authorization.
(a) The Bank may honor telephone or telefax instructions
for disbursement of the proceeds of the loan or for the designation of
optional interest rates given by any one of the individuals authorized
to sign loan agreements on behalf of the Borrower, or any other
individual designated by any one of such authorized signers. In the case
of telephone instructions for disbursement of the proceeds of the loan,
the Borrower shall provide to the Bank its standard agreement for oral
funds transfer services, including the designation of authorized
callers.
(b) The Bank may terminate its willingness to accept
telephone and telefax instructions upon 30 days notice to the Borrower
at any time in its discretion, or immediately upon any default under
this Agreement or for other reasonable cause.
(c) The Borrower indemnifies and excuses the Bank
(including its officers, employees, and agents) from all liability,
loss, and costs in connection with any act resulting from telephone or
telefax instructions the Bank reasonably believes are made by any
individual authorized by the Borrower to give such instructions. This
indemnity and excuse will survive this Agreement's termination.
4.4 Banking Days. Unless otherwise provided in this Agreement, a
banking day is a day other than a Saturday or a Sunday on which the Bank is open
for business in California. For amounts bearing interest at an offshore rate (if
any), a banking day is a day other than a Saturday or a Sunday on which the Bank
is open for business in California and dealing in offshore dollars. All payments
and disbursements which would be due on a day which is not a banking day will be
due on the next banking day. All payments received on a day which is not a
banking day will be applied to the credit on the next banking day.
4.5 Interest Calculation. Except as otherwise stated in this
Agreement, all interest and fees, if any, will be computed on the basis of a
360-day year and the actual number of days elapsed. This results in more
interest or a higher fee than if a 365-day year is used. Principal which is not
paid when due under this Agreement shall continue to bear interest until paid.
4.6 Default Rate. Upon the occurrence and during the continuation
of any default under this Agreement, principal amounts outstanding under this
Agreement will at the option of the Bank bear interest at a rate which is 2.0
percentage points higher than the rate of interest otherwise provided under this
Agreement. This will not constitute a waiver of any default.
4.7 Interest Compounding. At the Bank's sole option in each
instance, any interest, fees or costs which are not paid when due under this
Agreement shall bear interest from the due date at the Bank's Reference Rate
minus one-half (0.5) percentage point. This may result in compounding of
interest.
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5. CONDITIONS
The Bank must receive the following items, in form and content
acceptable to the Bank, before it is required to extend any credit to the
Borrower under this Agreement:
5.1 Authorizations. Evidence that the execution, delivery and
performance by the Borrower of this Agreement and any instrument or agreement
required under this Agreement have been duly authorized.
5.2 Governing Documents. A copy of the Borrower's articles of
incorporation.
5.3 Other Items. Any other items that the Bank reasonably
requires.
6. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is
repaid in full, the Borrower makes the following representations and warranties.
Each request for an extension of credit constitutes a renewed representation:
6.1 Authorization. This Agreement, and any instrument or
agreement required hereunder, are within the Borrower's powers, have been duly
authorized, and do not conflict with any of its organizational papers.
6.2 Enforceable Agreement. This Agreement is a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, and any instrument or agreement required hereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable, except as the enforceability thereof may be affected by (a)
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally, (b) the availability of certain equitable remedies or
limitations imposed by certain equitable principles of general applicability and
(c) limitations based on statutes or on public policy limiting a person's right
to waive the benefits of statutory provisions or common law rights.
6.3 No Conflicts. This Agreement does not conflict with any law,
agreement, or obligation by which the Borrower is bound.
6.4 Financial Information. All financial and other information
that has been or will be supplied to the Bank, including the Borrower's
financial statement dated as of December 31, 1997, is:
(a) sufficiently complete to give the Bank accurate
knowledge of the Borrower's financial condition, including all material
contingent liabilities.
(b) in compliance with all government regulations that
apply.
6.5 No Event of Default. There is no event which is, or with
notice or lapse of time or both would be, a default under this Agreement.
6.6 Insurance. The Borrower has obtained, and maintained in
effect, the insurance coverage required in the "Covenants" section of the
Syndicated Credit Agreement (as defined below).
6.7 Location of Borrower. The Borrower's place of business (or,
if the Borrower has more than one place of business, its chief executive office)
is located at the address listed under the Borrower's signature on this
Agreement.
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6.8 Environmental Matters. The Borrower (a) is not in violation
of any health, safety, or environmental law or regulation regarding hazardous
substances and (b) is not the subject of any claim, proceeding, notice, or other
communication regarding hazardous substances. "Hazardous substances" means any
substance, material or waste that is or becomes designated or regulated as
"toxic," "hazardous," "pollutant," or "contaminant" or a similar designation or
regulation under any federal, state or local law (whether under common law,
statute, regulation or otherwise) or judicial or administrative interpretation
of such, including without limitation petroleum or natural gas.
6.9 Year 2000 Compliance. The Borrower has conducted a
comprehensive review and assessment of the Borrower's computer applications [and
made inquiry of the Borrower's key suppliers, vendors and customers] with
respect to the "year 2000 problem" (that is, the risk that computer applications
may not be able to properly perform date-sensitive functions after December 31,
1999) and, based on that review and inquiry, the Borrower does not believe the
year 2000 problem will result in a material adverse change in the Borrower's
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit.
6.10 Representations and Warranties (the Syndicated Credit
Agreement). The representations and warranties contained in Article 6 of the
Syndicated Credit Agreement (the "Article 6 Reps and Warranties") are true as of
the date of this Agreement as if made on the date of this Agreement. The
Borrower acknowledges and agrees that each request for an extension of credit
under this Agreement shall be deemed to further represent and warrant that the
Article 6 Reps and Warranties remain true as of the date of such request (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
"Syndicated Credit Agreement" means that certain Credit Agreement dated as of
July 10, 1997, among the Borrower, the banks listed on the signature pages
thereof (collectively, the "Syndicate Banks," individually, a "Syndicate Bank"),
and Union Bank of California, National Association, as agent for the Syndicate
Banks, together with all schedules and exhibits thereto, as such credit
agreement, schedules, and exhibits are now in effect and as from time to time
amended, renewed, restated, or superseded. The Syndicated Credit Agreement and
the First Amendment and the Second Amendment thereto are attached to this
Agreement as Exhibits B, B-1, and B-2, respectively. Any future amendments to
the Syndicated Credit Agreement shall also be attached hereto and shall be
designated accordingly, commencing with Exhibit B-3.
7. COVENANTS
The Borrower agrees, so long as credit is available under this
Agreement and until the Bank is repaid in full:
7.1 Use of Proceeds. To use the proceeds of the credit only to
repay amounts outstanding under the Syndicated Credit Agreement.
7.2 Cooperation. To take any action reasonably requested by the
Bank to carry out the intent of this Agreement.
7.3 Affirmative and Negative Covenants (the Syndicated Credit
Agreement). Unless the Bank waives compliance in writing, to comply with the
affirmative covenants set forth in Sections 7.1 through 7.12 of the Syndicated
Credit Agreement and the negative covenants set forth in Sections 8.1 through
8.9 of the Syndicated Credit Agreement. The Borrower further agrees that with
respect to Section 7.3 of the Syndicated Credit Agreement, the Borrower will, at
the request of the Bank, furnish directly to the Bank any one or more of the
financial statements required thereunder at the same time as the Borrower
furnishes such statements to the Agent under the Syndicated Credit Agreement.
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8. DEFAULT
If any of the following events occurs, the Bank may do one or more of the
following: declare the Borrower in default, stop making any additional credit
available to the Borrower, and require the Borrower to repay its entire debt
immediately and without prior notice. If an event of default occurs under
Section 9.1(f) or Section 9.1(g) of the Syndicated Credit Agreement, then the
entire debt outstanding under this Agreement will automatically be due
immediately.
8.1 Failure to Pay. The Borrower fails to make any payment of
principal under this Agreement when due or any payment of interest under this
Agreement within 5 days after the date when due.
8.2 False Information. The Borrower has given the Bank
information or representations that are materially false, incorrect, incomplete
or misleading when made.
8.3 Material Adverse Change. A material adverse change occurs, or
is reasonably likely to occur, in the Borrower's business condition (financial
or otherwise), operations, properties or prospects, or ability to repay this
credit.
8.4 Default under Syndicated Credit Agreement. Any Event of
Default (as defined therein) occurs under the Syndicated Credit Agreement.
8.5 Other Bank Agreements. The Borrower fails to meet the
conditions of, or fails to perform any obligation under any agreement the
Borrower has with the Bank or any affiliate of the Bank other than this
Agreement and the Syndicated Credit Agreement. If, in the Bank's opinion, the
breach is capable of being remedied, the breach will not be considered an event
of default under this Agreement for a period of ten (10) days after the date on
which the Bank gives written notice of the breach to the Borrower; provided,
however, that the Bank will not be obligated to extend any additional credit to
the Borrower under this Agreement during that period.
8.6 Other Breach Under Agreement. The Borrower fails to meet the
conditions of, or fails to perform any obligation under, any term of this
Agreement not specifically referred to in this Article. This includes any
failure or anticipated failure by the Borrower to comply with any financial
covenants incorporated by reference into this Agreement, whether such failure is
evidenced by financial statements delivered to the Bank or is otherwise known to
the Borrower or the Bank. If, in the Bank's opinion, the breach is capable of
being remedied, the breach will not be considered an event of default under this
Agreement for a period of ten (10) days after the date on which the Bank gives
written notice of the breach to the Borrower; provided, however, that the Bank
will not be obligated to extend any additional credit to the Borrower during
that period.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all
financial information provided to the Bank and all financial covenants will be
made under generally accepted accounting principles, consistently applied.
9.2 California Law. This Agreement is governed by California law.
9.3 Successors and Assigns. This Agreement is binding on the
Borrower's and the Bank's successors and assignees. The Borrower agrees that it
may not assign this Agreement without the Bank's prior consent. The Bank may
sell participations in or assign this loan, and may exchange financial
information about the Borrower with actual or potential participants or
assignees. If a participation is sold or the loan is assigned, the purchaser
will have the right of set-off against the Borrower.
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9.4 Arbitration.
(a) This paragraph concerns the resolution of any
controversies or claims between the Borrower and the Bank, including but
not limited to those that arise from:
(i) This Agreement (including any renewals,
extensions or modifications of this Agreement);
(ii) Any document, agreement or procedure related
to or delivered in connection with this Agreement;
(iii) Any violation of this Agreement; or
(iv) Any claims for damages resulting from any
business conducted between the Borrower and the Bank, including
claims for injury to persons, property or business interests
(torts).
It is provided, however, that this paragraph does not concern the
resolution of any controversies or claims between the Borrower and the
Bank that arise from the Syndicated Credit Agreement.
(b) At the request of the Borrower or the Bank, any such
controversies or claims will be settled by arbitration in accordance
with the United States Arbitration Act. The United States Arbitration
Act will apply even though this Agreement provides that it is governed
by California law.
(c) Arbitration proceedings will be administered by the
American Arbitration Association and will be subject to its commercial
rules of arbitration.
(d) For purposes of the application of the statute of
limitations, the filing of an arbitration pursuant to this paragraph is
the equivalent of the filing of a lawsuit, and any claim or controversy
which may be arbitrated under this paragraph is subject to any
applicable statute of limitations. The arbitrators will have the
authority to decide whether any such claim or controversy is barred by
the statute of limitations and, if so, to dismiss the arbitration on
that basis.
(e) If there is a dispute as to whether an issue is
arbitrable, the arbitrators will have the authority to resolve any such
dispute.
(f) The decision that results from an arbitration
proceeding may be submitted to any authorized court of law to be
confirmed and enforced.
(g) The procedure described above will not apply if the
controversy or claim, at the time of the proposed submission to
arbitration, arises from or relates to an obligation to the Bank secured
by real property located in California. In this case, both the Borrower
and the Bank must consent to submission of the claim or controversy to
arbitration. If both parties do not consent to arbitration, the
controversy or claim will be settled as follows:
(i) The Borrower and the Bank will designate a
referee (or a panel of referees) selected under the auspices of
the American Arbitration Association in the same manner as
arbitrators are selected in Association-sponsored proceedings;
(ii) The designated referee (or the panel of
referees) will be appointed by a court as provided in California
Code of Civil Procedure Section 638 and the following related
sections;
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(iii) The referee (or the presiding referee of the
panel) will be an active attorney or a retired judge; and
(iv) The award that results from the decision of
the referee (or the panel) will be entered as a judgment in the
court that appointed the referee, in accordance with the
provisions of California Code of Civil Procedure Sections 644 and
645.
(h) This provision does not limit the right of the
Borrower or the Bank to:
(i) exercise self-help remedies such as setoff;
(ii) foreclose against or sell any real or personal
property collateral; or
(iii) act in a court of law, before, during or
after the arbitration proceeding to obtain:
(A) an interim remedy; and/or
(B) additional or supplementary remedies.
(i) The pursuit of or a successful action for interim,
additional or supplementary remedies, or the filing of a court action,
does not constitute a waiver of the right of the Borrower or the Bank,
including the suing party, to submit the controversy or claim to
arbitration if the other party contests the lawsuit. However, if the
controversy or claim arises from or relates to an obligation to the Bank
which is secured by real property located in California at the time of
the proposed submission to arbitration, this right is limited according
to the provision above requiring the consent of both the Borrower and
the Bank to seek resolution through arbitration.
(j) If the Bank forecloses against any real property
securing this Agreement, the Bank has the option to exercise the power
of sale under the deed of trust or mortgage, or to proceed by judicial
foreclosure.
9.5 Severability; Waivers. If any part of this Agreement is not
enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after default. If the Bank waives a default, it
may enforce a later default. Any consent or waiver under this Agreement must be
in writing.
9.6 Administration Costs. The Borrower shall pay the Bank for all
reasonable costs incurred by the Bank in connection with administering this
Agreement.
9.7 Attorneys' Fees. The Borrower shall reimburse the Bank for
any reasonable costs and attorneys' fees incurred by the Bank in connection with
the enforcement or preservation of any rights or remedies under this Agreement
and any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. As used in this paragraph,
"attorneys' fees" includes the allocated costs of the Bank's in-house counsel.
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9.8 One Agreement. This Agreement and any related security or
other agreements required by this Agreement, collectively:
(a) represent the sum of the understandings and agreements
between the Bank and the Borrower concerning this credit;
(b) replace any prior oral or written agreements between
the Bank and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the
final, complete and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
9.9 Indemnification. The Borrower will indemnify and hold the
Bank harmless from any loss, liability, damages, judgments, and costs of any
kind relating to or arising directly or indirectly out of (a) this Agreement or
any document required hereunder, (b) any credit extended or committed by the
Bank to the Borrower hereunder, and (c) any litigation or proceeding related to
or arising out of this Agreement, any such document, or any such credit. This
indemnity includes but is not limited to attorneys' fees (including the
allocated cost of in-house counsel). This indemnity extends to the Bank, its
parent, subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns. This indemnity will survive repayment of the
Borrower's obligations to the Bank. All sums due to the Bank hereunder shall be
obligations of the Borrower, due and payable immediately without demand.
9.10 Notices. All notices required under this Agreement shall be
personally delivered or sent by first class mail, postage prepaid, to the
addresses on the signature page of this Agreement, or to such other addresses as
the Bank and the Borrower may specify from time to time in writing.
9.11 Headings. Article and paragraph headings are for reference
only and shall not affect the interpretation or meaning of any provisions of
this Agreement.
9.12 Counterparts. This Agreement may be executed in as many
counterparts as necessary or convenient, and by the different parties on
separate counterparts each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
agreement.
9.13 References to the Syndicated Credit Agreement.
(a) The Bank and the Borrower agree that the references to
certain provisions of the Syndicated Credit Agreement under Paragraphs
6.10, 7.3, and 8.4 of this Agreement are at all times deemed to be to
the most current versions of those provisions as then in effect.
(b) If the Syndicated Credit Agreement is at any time
terminated and no longer in effect, the Bank and the Borrower agree that
the references described in subparagraph (a) above shall be deemed to be
to the versions of those provisions as are in effect as of the
termination of the Syndicated Credit Agreement.
(c) Notwithstanding the foregoing subparagraphs (a) and
(b), the Borrower agrees that the Bank may, in its reasonable
discretion, determine at any time that any provision of the Syndicated
Credit Agreement referenced under Paragraphs 6.10, 7.3, and 8.4 hereof
shall no longer be applicable to this Agreement. In such event, the Bank
and the
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Borrower shall memorialize the Bank's determination through an
appropriate amendment to this Agreement. Among the circumstances
(without limiting such circumstances) under which the Bank may
reasonably make such a determination would be the circumstances
resulting from the Bank's decision to no longer remain a party to the
Syndicated Credit Agreement or resulting from the execution of an
amendment to the Syndicated Credit Agreement to which the Bank does not
consent.
This Agreement is executed as of the date stated at the top of the first page.
Bank of America National McGrath RentCorp
Trust and Savings Association
By _____________________________ By ________________________________
Typed Name: Kenneth J. Beck Typed Name: Delight Saxton
Title: Vice President Title: Senior Vice President, Chief
Financial Officer and Secretary
Address where notices to Address where notices to
the Bank are to be sent: the Borrower are to be sent:
East Bay Regional Commercial 5700 Las Positas
Banking Office (1472) Livermore, CA 94550
300 Lakeside Drive, Suite 250 Attention: Ms. Delight Saxton
Oakland, CA 94612
Attention: Kenneth J. Beck
Vice President
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