EXHIBIT 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("AMENDMENT"), dated as of October
21, 1997, is entered into by and among ABM INDUSTRIES INCORPORATED (the
"COMPANY"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for
the Banks (the "AGENT"), and the several financial institutions from time to
time party to the Credit Agreement (collectively, the "BANKS"; individually, a
"BANK").
RECITALS
A. The Company, the Banks, and the Agent are parties to a Credit
Agreement dated as of June 25, 1997 (the "CREDIT AGREEMENT") pursuant to which
the Agent and the Banks have extended to the Company a revolving credit facility
including letters of credit.
B. The Company has requested the Banks to increase the amount of credit
they have committed to extend under the revolving credit facility and, in
conjunction with such increase, the Company and the Banks have agreed to amend
the negative covenant set forth in Section 8.5 of the Credit Agreement in order
to permit the Company to incur certain Indebtedness in addition to that already
permitted by Section 8.5 and to add a new financial covenant to Section 8.14 of
the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement in order to
increase the amount of each Bank's Commitment and to reflect the other changes
described in Recital B above, subject to the terms and conditions of this
Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) The following new defined terms shall be added in alphabetical
order to Section 1.1 of the Credit Agreement:
"ADJUSTED CONSOLIDATED EBITDA" means, for any period, for the
Company and its Subsidiaries on a consolidated basis, Consolidated EBITDA for
such period MINUS all cash dividends paid to stockholders during such period on
a basis consistent with past practice.
"ADJUSTED CONSOLIDATED INDEBTEDNESS" means, for any period,
Indebtedness of the Company and its Subsidiaries on a consolidated basis as of
the end of such period; PROVIDED that the term "Adjusted Consolidated
Indebtedness" shall only include obligations of the types
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described in CLAUSE (i), CLAUSE (ii), CLAUSE (iv), and CLAUSE (v) of the
definition of the term "Indebtedness."
(b) Section 8.5 of the Credit Agreement shall be amended by deleting
the word "and" at the end of Section 8.5(c), by replacing the period at the end
of Section 8.5(d) with a semicolon followed by the word "and", and by adding the
following new Section 8.5(e):
(e) Indebtedness that (i) does not at any time exceed
$15,000,000 and (ii) consists only of (A) obligations as lessee under capital
leases or (B) obligations under notes (if any) executed to evidence contingent
obligations incurred in connection with Acquisitions, PROVIDED that in each case
such Acquisition was otherwise permitted under this agreement.
(c) The following new Section 8.14(c) shall be added to the Credit
Agreement:
(c) RATIO OF ADJUSTED CONSOLIDATED INDEBTEDNESS TO ADJUSTED
CONSOLIDATED EBITDA. Permit the ratio of Adjusted Consolidated Indebtedness to
Adjusted Consolidated EBITDA to exceed 3.00 to 1.00 for any four consecutive
fiscal quarter period ending on or after January 31, 1998.
(d) The respective amounts set forth opposite the Banks' names on the
signature pages of the Credit Agreement under the caption "Commitment" are
hereby increased to the following amounts:
BANK AMOUNT OF COMMITMENT
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Bank of America National Trust
and Savings Association $60,000,000
KeyBank National Association $30,000,000
United States National Bank of Oregon $30,000,000
Bank of America National Trust
and Savings Association,
doing business as Seafirst Bank $30,000,000
3. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of
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the Company, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
4. EFFECTIVE DATE. This Amendment will become effective as of November
1, 1997 (the "EFFECTIVE DATE"), PROVIDED that each of the following conditions
is satisfied:
(a) The Agent has received from the Company and the Banks a duly
executed original (or, if elected by the Agent, an executed facsimile copy) of
this Amendment.
(b) The Agent has received from the Company a copy of a resolution
passed by the board of directors of such corporation, certified by the Secretary
or an Assistant Secretary of such corporation as being in full force and effect
on the date hereof, authorizing the execution, delivery and performance of this
Amendment.
(c) All representations and warranties contained herein are true and
correct as of the Effective Date.
5. RESERVATION OF RIGHTS. The Company acknowledges and agrees that
neither the Agent's nor the Banks' willingness to enter into this Amendment, nor
the execution and delivery by the Agent and the Banks of this Amendment, shall
be deemed to create a course of dealing or other otherwise obligate the Agent or
the Banks to execute similar amendments under similar circumstances in the
future.
6. MISCELLANEOUS.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of
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which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 11.1 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent and the
Banks, upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment, including without
limitation appraisal, audit, search and filing fees incurred in connection
therewith.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
COMPANY: ABM INDUSTRIES INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
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Title: V.P. Finance
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By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Treasurer
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AGENT: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------
Title: Vice President
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ISSUING BANK: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Issuing Bank
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------
Title: Vice President
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BANKS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------
Title: Vice President
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KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxxx XxXxxxx
--------------------------------
Title: Vice President
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UNITED STATES NATIONAL BANK OF OREGON, as a Bank
By: /s/ Xxxxx Xxxxxx
--------------------------------
Title: Assistant Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
doing business as SEAFIRST BANK, as a Bank
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Vice President
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