EXHIBIT 4.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT ("AMENDMENT"), dated as of
February 7, 1996, 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 September 22, 1994 (as previously amended, 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 amend the negative covenants set
forth in Sections 8.4 and 8.5 of the Credit Agreement in order to permit the
Company to receive a term loan from BofA in the original principal amount of
$5,000,000 and to use certain proceeds of the term loan to purchase a
partnership interest in a certain low-income housing partnership known as
American Tax Credit Corporate Fund II, L.P.
C. The Banks are willing to amend the Credit Agreement in order to permit
the transactions 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) Section 8.4 of the Credit Agreement shall be amended by deleting
the word "or" at the end of Section 8.4(c), by replacing the period at the
end of Section 8.4(d) with a semicolon followed by the word "or," and by
adding the following new Section 8.4(e):
(e) the Company's purchase of a partnership interest in that
certain low-income housing partnership known as American Tax Credit
Corporate Fund II, L.P., PROVIDED that the total cost of such
investment does not exceed $5,000,000.
(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)
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with a semicolon followed by the word "and," and by adding the following
new Section 8.5(e):
(e) Indebtedness of the Company to BofA which does not
exceed $5,000,000 and which is incurred primarily for the purpose of
making the investment permitted under SECTION 8.4(E).
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 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 February
__, 1996 (the "EFFECTIVE DATE"), PROVIDED that each of the following conditions
precedent is satisfied:
(a) By no later than February __, 1996, 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) By no later than February __, 1996, 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.
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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 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 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.
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(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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Waiver and Amendment as of the date first above written.
COMPANY: ABM INDUSTRIES INCORPORATED
By:_\s\ Xxxxx X. Xxxxxx
Title:_Vice President_
By:_\s\ Xxxxxxx X. Xxxxxx
Title: Treasurer
AGENT: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By:_\s\ Xxxxxxxxx Cordi_
Title: Vice President
ISSUING BANK: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Bank
By:_\s\ Xxxxx X. Xxxxxxxxxxx
Title: Vice President
BANKS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: \s\ Xxxxx X. Xxxxxxxxxxx
Title: Vice President
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NATIONSBANK OF TEXAS, N.A.,
as a Bank
By: \s\ Xxxxxx Xxxx
Title: Vice President
UNITED STATES NATIONAL BANK
OF OREGON, as a Bank
By:_\s\ Xxxxxxx Xxxxxx
Title:Commercial Account
Officer
SEATTLE-FIRST NATIONAL BANK,
as a Bank
By: \s\ Xxxxxx X. Xxxxx
Title: Assistant Vice
President
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