EXHIBIT 10(i)A(3)
SECOND AMENDMENT TO 364 DAY CREDIT AGREEMENT
THIS SECOND AMENDMENT TO 364 DAY CREDIT AGREEMENT (this "Second
Amendment") is dated as of April 18, 2001 among NATIONAL SERVICE INDUSTRIES,
INC. (the "Parent"), NSI LEASING, INC., and NSI ENTERPRISES, INC.
(collectively, with the Parent, the "Borrowers "), the BANKS parties hereto,
WACHOVIA BANK, N.A., as Administrative Agent (the "Administrative Agent"), BANK
ONE, NA (as successor to The First National Bank of Chicago), as Syndication
Agent, and COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH and ABN AMRO, N.V.,
as Co-Agents;
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent, the Syndication
Agent, the Co-Agents and the Banks parties thereto executed and delivered that
certain Credit Agreement dated as of July 15, 1999, as amended by First
Amendment to Credit Agreement dated as of July 14, 2000 (as so amended, the
"364 Day Credit Agreement");
WHEREAS, the Borrowers have requested certain amendments to the 364
Day Credit Agreement, and the Administrative Agent and the Required Banks have
agreed to such Second Amendment, subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Borrowers, the Administrative
Agent and the Banks hereby covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein,
each term used herein which is defined in the 364 Day Credit Agreement shall
have the meaning assigned to such term in the 364 Day Credit Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the 364 Day Credit Agreement shall from and after the
date hereof refer to the 364 Day Credit Agreement as amended hereby.
2. Amendments to Section 1.01. Section 1.01 of the 364 Day
Credit Agreement hereby is amended by deleting the definition of "Debt" and by
adding the following definitions of "Debt" and "Receivables Securitization
Programs":
"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 amounts outstanding under all asset securitization
programs, (ix) 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
(x) all Debt of others Guaranteed by such Person.
"Receivables Securitization Programs" means an asset
securitization program proposed to be entered into by the Parent, NSI
Enterprises, Inc. ("Enterprises"), National Service Industries, Inc.,
a Georgia corporation and a Wholly Owned Subsidiary of the Parent
("NSI Georgia") and a newly formed, bankruptcy-remote subsidiary to be
organized in Delaware and to be named NSI Funding, Inc. ("NSI
Funding") with Blue Ridge Asset Funding Corporation and certain
liquidity banks, agented by Wachovia Bank, N.A., relating to the
securitization of accounts receivable of Enterprises and accounts
receivable of NSI Georgia's Lithonia Lighting, and NSI Chemicals Group
divisions, and any amendment, restatement refinancing or replacement
for such program, together with any other asset securitization program
that may be hereafter entered into by Parent and any of its
Subsidiaries relating to the securitization of the accounts receivable
of Parent or such Subsidiaries; provided that the aggregate
outstanding principal balance of all Debt incurred by Parent and its
Subsidiaries at any one time under all such programs shall not exceed
$200,000,000.
3. Amendment to Section 5.09. Section 5.09 of the 364 Day Credit
Agreement hereby is amended and restated as follows:
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), (ii) Debt under the Receivables
Securitization Programs and (iii) 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.
4. Amendment to Section 5.15(g). Section 5.15(g) of the 364 Day
Year Credit Agreement hereby is amended and restated as follows:
(g) Liens on and transfers of accounts receivable in
connection with (i) the Receivables Securitization Programs, up to the
$200,000,000 program limit described in the definition of such term.
5. Amendments to Exhibit F (Compliance Certificate). Paragraph 1
of Exhibit F hereby is amended and restated as follows:
1. Subsidiary Debt (Section 5.09)
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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), (ii) Debt under the Receivables Securitization
Programs and (iii) 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.
(a) Subsidiary Debt not permitted by clause (i) or (ii)
not in excess of $
(b) Debt subject to Liens permitted by Section 5.15(p)
not in excess of $
(c) Sum of (a) and (b) $
(d) Stockholders' Equity $ ]
(e) 25% of (d) $
Limitation (c) not to exceed (e)
6. Restatement of Representations and Warranties. The Borrowers
hereby restate and renew each and every representation and warranty heretofore
made by it in the 364 Day Credit Agreement and the other Loan Documents as
fully as if made on the date hereof and with specific reference to this Second
Amendment and all other loan documents executed and/or delivered in connection
herewith.
7. Effect of Second Amendment. Except as set forth expressly
hereinabove, all terms of the 364 Day Credit Agreement and the other Loan
Documents shall be and remain in full force and effect, and shall constitute
the legal, valid, binding and enforceable obligations of the Borrower.
8. Ratification. The Borrowers hereby restate, ratify and
reaffirm each and every term, covenant and condition set forth in the 364 Day
Credit Agreement and the other Loan Documents effective as of the date hereof.
9. Counterparts. This Second Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts
and transmitted by facsimile to the other parties, each of which when so
executed and delivered by facsimile shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
10. Section References. Section titles and references used in
this Second Amendment shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
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11. No Default. To induce the Administrative Agent and the Banks
to enter into this Second Amendment and to continue to make advances pursuant
to the 364 Day Credit Agreement, the Borrower hereby acknowledges and agrees
that, as of the date hereof, and after giving effect to the terms hereof, there
exists (i) no Default or Event of Default and (ii) no right of offset, defense,
counterclaim, claim or objection in favor of the Borrowers arising out of or
with respect to any of the Loans or other obligations of the Borrowers owed to
the Administrative Agent or the Banks under the 364 Day Credit Agreement.
12. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments herein contained.
13. Governing Law. This Second Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
14. Conditions Precedent. This Second Amendment shall become
effective only upon: (i) execution and delivery (which may be by facsimile) of
this Second Amendment by the Borrowers, the Administrative Agent and the
Required Banks; and (ii) the execution and delivery of the Consent and
Reaffirmation of Guarantor at the end hereof by the Parent.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the Borrowers, the Administrative Agent and each
of the Required Banks has caused this Second Amendment to be duly executed,
under seal, by its duly authorized officer as of the day and year first above
written.
NATIONAL SERVICE INDUSTRIES, INC. NSI LEASING, INC.
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
NSI ENTERPRISES, INC. BANK ONE, NA (as successor to The
First National Bank of Chicago),
as Syndication Agent and as a Bank
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
WACHOVIA BANK, N.A., as Administrative ABN AMRO, N.V.,
Agent and as a Bank as Co-Agent and as a Bank
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
COMMERZBANK AKTIENGESELLSCHAFT, THE BANK OF NEW YORK,
NEW YORK BRANCH, as Co-Agent as a Bank
and a Bank
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
By: (SEAL)
------------------------
Name:
Title:
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BANK OF AMERICA, N.A. MELLON BANK, N.A.,
as a Bank as a Bank
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
TORONTO DOMINION BANK, as a Bank SUNTRUST BANK (formerly Sun
Trust Bank, Atlanta),
as a Bank
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
By: (SEAL) By: (SEAL)
------------------------ -------------------------
Name: Name:
Title: Title:
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CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTOR
The undersigned (i) acknowledges receipt of the foregoing Second
Amendment To 364 Day Credit Agreement (the "Second Amendment"), (ii) consents
to the execution and delivery of the Second Amendment by the parties thereto,
and (iii) reaffirms all of its obligations and covenants under the Guaranty
Agreement dated as of July 15, 1999 executed by it, and agrees that none of
such obligations and covenants shall be affected by the execution and delivery
of the Second Amendment.
NATIONAL SERVICE INDUSTRIES, INC.
By: (SEAL)
------------------------
Name:
Title:
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