THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as
of December 19, 1997 by and among HOMEBASE, INC., THE FIRST NATIONAL BANK OF
CHICAGO, BANKBOSTON, N.A., XXXXX FARGO BANK, N.A. and THE SUMITOMO BANK,
LIMITED.
RECITALS
WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of July 9, 1997 (as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"; capitalized terms
used but not otherwise defined herein having the definitions provided therefor
in the Credit Agreement); and
WHEREAS, the parties hereto desire to amend the Credit
Agreement on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Amendment to Credit Agreement. Subject to the terms and conditions set forth
in Section 2 of this Amendment, upon the Effective Time (as hereinafter
defined), the Credit Agreement is hereby amended as follows:
(i) The definition of "Aggregate Available Commitment" in
Article I of the Credit Agreement is hereby amended by deleting such
definition and inserting the following in its stead:
"Aggregate Available Commitment" means, at any time,
(a) the lesser of (i) the Aggregate Commitment at such time
and (ii) the Borrowing Base at such time, less (b) the sum of
(i) the outstanding Facility Letter of Credit Obligations at
such time plus (ii) the aggregate principal amount of
outstanding Loans at such time.
(ii) The definition of "Commitment" in Article I of the Credit
Agreement is hereby amended by inserting the words "or Documentary
Facility Acceptances" after the words "Facility Letters of Credit".
(iii) The definition of "Facility Letter of Credit
Obligations" in Article I of the Credit Agreement is hereby amended by
deleting such definition and inserting the following in its stead:
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"Facility Letter of Credit Obligations" means, as at
the time of determination thereof, all liabilities, whether
actual or contingent, of the Borrower with respect to Facility
Letters of Credit and Documentary Facility Acceptances,
including the sum of, without duplication, (a) the
Reimbursement Obligations plus (b) the aggregate undrawn face
amount of the then outstanding Facility Letters of Credit plus
(c) the aggregate unmatured amount of Documentary Facility
Acceptances.
(iv) The definition of "Issuing Bank" in Article I of the
Credit Agreement is hereby amended by deleting such definition and
inserting the following in its stead.
"Issuing Bank" means, with respect to each Facility
Letter of Credit or Documentary Facility Acceptance, First
Chicago or such other Lender selected by the Borrower to issue
such Facility Letter of Credit or Documentary Facility
Acceptance so long as such other Lender consents to act in
such capacity.
(v) The definition of "LC Factor" in Article I of the Credit
Agreement is hereby amended by deleting such definition and inserting
the following in its stead:
"LC Factor" is a fraction (i) the numerator of which is (y)
for the initial payment of the Facility Letter of Credit Fee
for any specific Facility Letter of Credit or for any specific
Documentary Facility Acceptance, the number of days subsequent
to the Issuance Date of such Facility Letter of Credit or
Drawing Date of such Documentary Facility Acceptance to and
including the first Payment Date and (z) for subsequent
payments of the Facility Letter of Credit Fee for any specific
Facility Letter of Credit or for any specific Documentary
Facility Acceptance, the number of days subsequent to the
Payment Date on which the Facility Letter of Credit Fee was
last paid for such Facility Letter of Credit or Documentary
Facility Acceptance to and including the next Payment Date,
the Termination Date or the expiration date of such Facility
Letter of Credit or Documentary Facility Acceptance, as
applicable, and (ii) the denominator of which is 360.
(vi) The definition of "Permitted Investments" in Article I of
the Credit Agreement is hereby amended by deleting such definition and
inserting the following in its stead:
"Permitted Investments" means Investments in any of the
following:
(a) Short-term obligations of, or fully guaranteed by,
the United States of America; or its agencies;
(b) Commercial paper rated A-2 or better by Standard and
Poor's Corporation or P-2 or better by Xxxxx'x Investors
Service, Inc. and securities commonly known as "short-term
bank notes" issued by any Lender denominated in United States
dollars which at the time of purchase have been rated and the
ratings for which are not less than P-2 if rated by Xxxxx'x
Investors Services, Inc., and not less than A-2 if rated by
Standard and Poor's Corporation;
(c) Demand deposit accounts maintained in the ordinary course
of business;
(d) Certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital
and surplus in excess of $100,000,000;
(e) Municipal securities rated "A" or better as rated by
Standard and Poor's Corporation or Xxxxx'x Investors Service,
Inc. and municipal securities mutual funds which have a
weighted average life of less than two (2) years;
(f) Corporate debt securities rated "A" or better as rated by
Standard and Poor's Corporation or Xxxxx'x Investors Service,
Inc. that mature within two (2) years from the date the
Investment is made by the Borrower or any of its Subsidiaries;
(g) Asset or mortgage backed securities rated "A" or better as
rated by Standard and Poor's Corporation or Xxxxx'x Investors
Service, Inc. with an average life less than two (2) years;
provided that after giving effect to any such Investment, the
aggregate cost of all such Investments does not exceed
$25,000,000;
(h) Auction rate securities rated "A" or better as rated by
Standard and Poor's Corporation or Xxxxx'x Investors Service,
Inc.; provided that after giving effect to any such
Investment, the aggregate cost of all such Investments does
not exceed $25,000,000;
(i) Repurchase agreements relating to a security which is
rated "A" or better as rated by Standard and Poor's
Corporation or Xxxxx'x Investors Service, Inc. that mature
within two (2) years from the date the Investment is made by
the Borrower or any of its Subsidiaries; provided that after
giving effect to any such Investment, the aggregate cost of
all such Investments does not exceed $25,000,000;
(j) Municipal securities rated "SP2" or better by Standard and
Poor's Corporation or "MIG2" or better by Xxxxx'x Investors
Service, Inc. with an average life of less than two (2) years;
provided, that after giving effect to any such Investment, the
aggregate cost of all such Investments does not exceed
$25,000,000;
(k) Money market mutual funds regulated by rule 2a-7 under the
Investment Company Act of 1990;
(l) Insurance company guaranteed investment contracts or
funding agreements with insurers rated A-2 or better by
Standard and Poor's Corporation; and
(m) Bond mutual funds investing in securities rated "A" or
better by Standard and Poor's Corporation which have a
weighted average life of two (2) years or less. (vii) The
definition of "Reimbursement Obligation" in Article I of the
Credit Agreement is hereby amended by deleting such definition
and inserting the following in its stead:
"Reimbursement Obligations" means, at any time, the
aggregate of the obligations of the Borrower to the Lenders,
the Issuing Banks and the Agent in respect of all unreimbursed
payments or disbursements made by the Lenders, the Issuing
Banks and the Agent under or in respect of the Facility
Letters of Credit or upon maturity of Documentary Facility
Acceptances.
(viii) Article I of the Credit Agreement is hereby amended by
inserting the following definitions in such Article in
alphabetical order.
"Acceptance" shall mean a Draft that is eligible for
discount pursuant to paragraph 7 of Section 13 of the Federal
Reserve Act and that has been duly accepted by the Issuing
Bank pursuant to Article III and is a documentary acceptance.
"Draft" is defined in Section 3.4(B).
"Drawing Date" is defined in Section 3.4(B).
"Drawing" shall mean a drawing of one or more Drafts
on any Drawing Date.
"Discount Charge" is defined in Section 3.4(B).
"Documentary Facility Acceptance" means an Acceptance
issued by an Issuing Bank pursuant to Section 3.1(B).
"Notice of Drawing" is defined in Section 3.4(B).
(ix) Article III of the Credit Agreement is hereby amended by
deleting such Article in its entirety and inserting the
following in its stead:
ARTICLE III
THE LETTER OF CREDIT AND BANKER'S ACCEPTANCE SUBFACILITY
3.1. Obligation to Issue.
(A) Upon the terms and subject to the conditions of
this Agreement and relying upon the representations and
warranties of the Borrower herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Borrower through
such of the Issuing Bank's branches as it and the Borrower may
jointly agree, one or more Facility Letters of Credit payable
on a sight or time basis, in accordance with this Article III
from time to time during the period, commencing on the
Effective Date and ending on date five Business Day prior to
the Termination Date. Upon the occurrence of the
Collateralization Date, undrawn letters of credit issued by
BankBoston, N.A. in an aggregate amount of $10,734,819.65
(which the Borrower represents and warrants were at such time
the only letters of credit issued by any Lender and
outstanding under Section 6.14(b) or (c)) each became a
Facility Letter of Credit. Borrower shall give written notice
to the Agent prior to using any Lender other than BankBoston,
N.A. as an Issuing Bank. Each Issuing Bank shall comply with
the requirements herein and any other reporting requirements
reasonably requested by the Agent.
(B) Upon the terms and subject to the conditions of
this Agreement and relying upon the representations and
warranties of the Borrower herein set forth, each Issuing Bank
agrees, from time to time during the period, commencing on the
Effective Date and ending on date five Business Day prior to
the Termination Date, to create Acceptances under time letters
of credit maturing on a Business Day not less than 30 days or
more than 180 days after the creation thereof. Each Acceptance
shall be created by the Issuing Bank's acceptance of
beneficiaries' Drafts drawn on it in accordance with the terms
of this Agreement.
3.2. Types and Amounts. The issuance of a Facility
Letter of Credit or Documentary Facility Acceptance shall
be subject to the following conditions:
(a) the aggregate maximum amount then
available for drawing under Facility Letters of Credit and
Documentary Facility Acceptances issued by such Issuing Bank,
after giving effect to the Facility Letter of Credit requested
hereunder, shall not exceed any limit imposed by law or
regulation upon such Issuing Bank;
(b) after giving effect thereto, the sum of
(i) the aggregate unpaid principal balance of the Revolving
Loans plus (ii) the aggregate unpaid balance of the Swing Line
Loans plus (iii) the Facility Letter of Credit Obligations
does not exceed the Aggregate Available Commitment as then in
effect;
(c) it does not have an expiration date (if
a Letter of Credit) or a maturity date (if a Documentary
Facility Acceptance) later than five Business Days prior to
the Termination Date;
(d) if a Letter of Credit, it does not have
an expiration date more than twelve (12) months after the date
of its issuance; provided, that it may provide for the renewal
thereof for additional twelve (12) month periods so long as no
renewal shall extend beyond the date provided in Section
3.2(c); or
(e) the amount of the Facility Letter of
Credit Obligations, after giving effect to any Facility Letter
of Credit or Documentary Facility Acceptance requested
hereunder, does not exceed $40,000,000.
3.3. Conditions. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the
obligation of an Issuing Bank to issue any Facility Letter of
Credit or Documentary Facility Acceptance is subject to the
satisfaction in full of the following conditions:
(a) the Borrower shall have delivered to
such Issuing Bank at such times and in such manner as such
Issuing Bank may reasonably prescribe such documents and
materials as may be required pursuant to the terms of the
proposed Facility Letter of Credit (it being understood that
if any inconsistency exists between such documents and the
Loan Documents, the terms of the Loan Documents shall control)
and the proposed Facility Letter of Credit and Documentary
Facility Acceptance shall be reasonably satisfactory to the
Issuing Bank as to form and content;
(b) as of the date of issuance, no order,
judgment or decree of any court, arbitrator or governmental
authority shall purport by its terms to enjoin or restrain
such Issuing Bank from issuing the requested Facility Letter
of Credit or Documentary Facility Acceptance and no law, rule
or regulation applicable to that Issuing Bank and no request
or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over that Issuing
Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit or Acceptances
generally or the issuance of the requested Facility Letter or
Credit or Documentary Facility Acceptance in particular; and
(c) the Issuing Bank and the Borrower having
agreed on the fee referred to in Section 3.8.
3.4. Procedure for Issuance of Facility Letters of Credit.
(a) The Borrower shall give the Issuing Bank
written or electronic notice of any requested issuance of a
Facility Letter of Credit under this Agreement (a "Letter of
Credit Request") in the format acceptable to the Issuing Bank
and the Agent. Such notice shall be irrevocable.
(b) Subject to the terms and conditions of
this Article III and provided that the applicable conditions
set forth in Section 4.2 hereof have been satisfied, such
Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit, on a sight or time basis, on behalf of the
Borrower in accordance with the Issuing Bank's usual and
customary business practices unless the Issuing Bank has
actually received (i) written notice from the Borrower
specifically revoking the Letter of Credit Request with
respect to such Facility Letter of Credit, (ii) written notice
from a Lender, which complies with the provisions of Section
3.6(a) or (iii) written or telephonic notice from the Agent
stating that the issuance of such Facility Letter of Credit
would violate Section 3.2.
(c) Each Issuing Bank shall give the Agent
and the Borrower written or telex notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a
Facility Letter of Credit (the "Issuance Notice").
(d) An Issuing Bank shall not extend or
amend any Facility Letter of Credit or allow any Facility
Letter of Credit to be automatically extended unless the
requirements of this Agreement are met as though a new
Facility Letter of Credit was being requested and issued.
3.4(B) Preparation of Drafts and Creation of Acceptances
(a) The Borrower hereby authorizes the
Issuing Bank or its designee to accept a Draft(s) drawn by a
beneficiary under a time Facility Letter of Credit. Not later
than 12:00 noon (Chicago time) on the proposed Drawing Date,
or such later time as maybe acceptable to the Borrower and the
Issuing Bank, the Issuing Bank shall, subject to the
satisfaction of the applicable conditions set forth herein,
duly accept and discount such Draft at a price equal to the
face amount thereof less the sum of the bankers acceptance
discount rate for such maturity then being generally quoted by
the Issuing Bank (the "Discount Charge"), the Discount Charge
being calculated on the face amount of each Draft so accepted
for the actual number of days in the period from the date
thereof to the date of its maturity and on the basis of a year
of 360 days. Not later than 1:00 p.m. (Chicago time) on the
Drawing Date, the Issuing Bank shall make the amount of the
proceeds of the discount of each Draft so accepted and
discounted available to the beneficiary. Notwithstanding the
foregoing, in the case of a Documentary Facility Acceptance
arising out of Drafts drawn by a Facility Letter of Credit
beneficiary, such discounting shall be on terms acceptable to
the Issuing Bank and such beneficiary (or its assignee) and
the proceeds of any such discount shall be paid (after such
discounting charges) to such beneficiary or its assignee.
(b) Notwithstanding the foregoing, the
Issuing Bank shall not be obligated to create or discount
Acceptances hereunder if such Acceptance would not be eligible
for discount at a Federal Reserve Bank under applicable rules
or regulations, would not meet the requirements of paragraph 7
of Section 13 of the Federal Reserve Act, as amended, or any
liability or the Issuing Bank that would arise from the
creation of such Acceptance would constitute a deposit for
which the Issuing Bank would be required to maintain reserves
under Regulation D of the Federal Reserve Board as from time
to time in effect or if the Issuing Bank, in its sole
discretion, chooses not to discount such Acceptance. The
Borrower acknowledges that the Issuing Bank's decision to
accept and discount any Draft offered for acceptance and
discount hereunder will be made in reliance upon the truth of
the representations made by the Borrower in the related Notice
of Drawing establishing the eligibility for discount of any
such Acceptance. The Borrower will indemnify and save the
Agent, the Issuing Bank and each Lender harmless from any loss
or liability incurred by the Agent, the Issuing Bank or such
Lender if any Acceptances are determined to be ineligible for
discount or subject to reserves by reason of any
misrepresentation made by the Borrower or to the beneficiary
of any Facility Letter of Credit.
(c) The Borrower hereby unconditionally
agrees to pay to the Issuing Bank in immediately available
funds the face amount of each Draft as to which an Acceptance
was created by such Issuing Bank on the maturity date thereof,
or on such earlier date as may be required pursuant to other
provisions of this Agreement.
(d) Acceptances may not be prepaid without
the consent of the Issuing Bank.
3.5. Reimbursement Obligations; Duties of Issuing Banks.
(a) (i) Each Issuing Bank shall promptly
notify the Borrower and the Agent of any draw under a Facility
Letter of Credit and the Borrower shall reimburse such Issuing
Bank in accordance with Section 3.7; and (ii) any
Reimbursement Obligation with respect to any Facility Letter
of Credit or Documentary Facility Acceptance shall bear
interest from the date of the relevant drawings or maturity,
as applicable, under the pertinent Facility Letter of Credit
or Documentary Facility Acceptance until payment in full is
received by the pertinent Issuing Bank at (A) the Floating
Rate until the next succeeding Business Day and (B) the
default interest rate for Floating Rate Advances calculated in
accordance with Section 2.12 for each day thereafter. Each
Issuing Bank shall report to the Agent the average daily
Facility Letter of Credit Obligations on a monthly basis no
later than the fifth Business Day of the month for the
preceding month.
(b) Any action taken or omitted to be taken
by an Issuing Bank under or in connection with any Facility
Letter of Credit, if taken or omitted in the absence of
willful misconduct or gross negligence, shall not put that
Issuing Bank under any resulting liability to any Lender or,
assuming that such Issuing Bank has complied with the
procedures specified in Section 3.4, all conditions to the
issuance of a Facility Letter of Credit have been satisfied
and such Lender has not given a notice contemplated by Section
3.6(a) that continues in full force and effect, relieve that
Lender of its obligations hereunder to that Issuing Bank. In
determining whether to pay under any Facility Letter of
Credit, an Issuing Bank shall have no obligation relative to
the Lenders other than to confirm that any documents required
to be delivered under such Facility Letter of Credit appears
to have been delivered in compliance, and that they appear to
comply on their face, with the requirements of such Facility
Letter of Credit.
3.6. Participation.
(A) (a) Immediately upon (i) the Effective
Date for those Facility Letters of Credit issued prior to such
date and (ii) issuance by an Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth
in Section 3.4, each Lender shall be deemed to have
irrevocably and unconditionally purchased and received from
that Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to its
Percentage in such Facility Letter of Credit (including,
without limitation, all obligations of the Borrower with
respect thereto) and any security therefor or guaranty
pertaining thereto; provided, that a Letter of Credit issued
by any Issuing Bank shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 3.6 if (A) such
Letter of Credit has an expiration date which is later than
five Business Days prior to the Termination Date or (B) such
Issuing Bank shall have received written notice from any
Lender on or before the Business Day prior to the date of its
issuance of such Letter of Credit that one or more of the
conditions to the issuance of a Facility Letter of Credit is
not then satisfied, and, in the event an Issuing Bank receives
such a notice, it shall have no further obligation to issue
any Facility Letter of Credit until such notice is withdrawn
by that Lender or it receives a notice from the Agent that
such condition has been satisfied or effectively waived in
accordance with the provisions of this Agreement.
(b) In the event that any Issuing Bank makes
any payment under any Facility Letter of Credit and the
Borrower shall not have repaid such amount to such Issuing
Bank pursuant to Section 3.7 hereof, such Issuing Bank shall
promptly notify the Agent, which shall promptly notify each
Lender, of such failure, and each Lender shall promptly and
unconditionally pay to the Agent for the account of such
Issuing Bank the amount of such Lender's Percentage of the
unreimbursed amount of such payment, and the Agent shall
promptly pay such amount to the Issuing Bank. The failure of
any Lender to make available to the Agent for the account of
any Issuing Bank its Percentage of the unreimbursed amount of
any such payment shall not relieve any other Lender of its
obligation hereunder to make available to the Agent for the
account of such Issuing Bank its Percentage of the
unreimbursed amount of any payment on the date such payment is
to be made, but no Lender shall be responsible for the failure
of any other Lender to make available to the Agent its
Percentage of the unreimbursed amount of any payment on the
date such payment is to be made.
(c) Whenever an Issuing Bank receives a
payment on account of a Reimbursement Obligation, including
any interest thereon, it shall promptly pay to the Agent and
the Agent shall promptly pay to each Lender which has funded
its participating interest therein, in immediately available
funds, an amount equal to such Lender's Percentage thereof.
(d) Upon the request of the Agent or any
Lender, an Issuing Bank shall furnish to such Agent or Lender
copies of any Facility Letter of Credit to which that Issuing
Bank is party and such other documentation as may reasonably
be requested by the Agent or Lender.
(e) The obligations of a Lender to make
payments to the Agent for the account of each Issuing Bank
with respect to a Facility Letter of Credit shall be absolute,
unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever
and shall be made in accordance with the terms and conditions
of this Agreement under all circumstances.
(B) (a) Immediately upon the Drawing Date of any
Documentary Facility Acceptance issued in accordance with the
procedures set forth in Section 3.4(B), each Lender shall be
deemed to have irrevocably and unconditionally purchased and
received from that Issuing Bank, without recourse,
representation or warranty, an undivided interest and
participation equal to its Percentage in such Documentary
Facility Acceptance (including, without limitation, all
obligations of the Borrower with respect thereto) and any
security therefor or guaranty pertaining thereto; provided,
that an Acceptance issued by any Issuing Bank shall not be
deemed to be a Documentary Facility Acceptance for purposes of
this Section 3.6 if (A) such Acceptance has an expiration date
which is later than five Business Days prior to the
Termination Date or (B) such Issuing Bank shall have received
written notice from any Lender on or before the Business Day
prior to the Drawing Date of such Acceptance that one or more
of the conditions to the issuance of a Documentary Facility
Acceptance is not then satisfied, and, in the event an Issuing
Bank receives such a notice, it shall have no further
obligation to issue any Documentary Facility Acceptance until
such notice is withdrawn by that Lender or it receives a
notice from the Agent that such condition has been satisfied
or effectively waived in accordance with the provisions of
this Agreement.
(b) In the event that any Issuing Bank makes
any payment under any Documentary Facility Acceptance and the
Borrower shall not have repaid such amount to such Issuing
Bank pursuant hereto on the maturity date specified in the
relevant Notice of Drawing, such Issuing Bank shall promptly
notify the Agent, which shall promptly notify each Lender, of
such failure, and each Lender shall promptly and
unconditionally pay to the Agent for the account of such
Issuing Bank the amount of such Lender's Percentage of the
unreimbursed amount of such payment, and the Agent shall
promptly pay such amount to the Issuing Bank. The failure of
any Lender to make available to the Agent for the account of
any Issuing Bank its Percentage of the unreimbursed amount of
any such payment shall not relieve any other Lender of its
obligation hereunder to make available to the Agent for the
account of such Issuing Bank its Percentage of the
unreimbursed amount of any payment on the date such payment is
to be made, but no Lender shall be responsible for the failure
of any other Lender to make available to the Agent its
Percentage of the unreimbursed amount of any payment on the
date such payment is to be made.
(c) Whenever an Issuing Bank receives a
payment on account of a Reimbursement Obligation, including
any interest thereon, it shall promptly pay to the Agent and
the Agent shall promptly pay to each Lender which has funded
its participating interest therein, in immediately available
funds, an amount equal to such Lender's Percentage thereof.
(d) Upon the request of the Agent or any
Lender, an Issuing Bank shall furnish to such Agent or Lender
copies of any Documentary Facility Acceptance to which that
Issuing Bank is party and such other documentation as may
reasonably be requested by the Agent or Lender.
(e) The obligations of a Lender to make
payments to the Agent for the account of each Issuing Bank
with respect to a Documentary Facility Acceptance shall be
absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever
and shall be made in accordance with the terms and conditions
of this Agreement under all circumstances.
3.7. Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to each
Issuing Bank the amount of all Reimbursement Obligations,
interest and other amounts payable to such Issuing Bank under
or in connection with any Facility Letter of Credit or
Documentary Facility Acceptance immediately when due (and in
any event shall reimburse an Issuing Bank for drawings under a
Facility Letter of Credit issued by it no later than the next
succeeding Business Day after the payment by that Issuing
Bank), irrespective of any claim, set-off, defense or other
right which the Borrower or any Subsidiary may have at any
time against any Issuing Bank or any other Person, under all
circumstances, including without limitation any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time
against a beneficiary named in a Facility Letter of
Credit or any transferee of any Facility Letter of
Credit or Documentary Facility Acceptance (or any Person
for whom any such transferee may be acting), the Agent,
the Issuing Bank, any Lender, or any other Person,
whether in connection with this Agreement, any Facility
Letter of Credit or Documentary Facility Acceptance, the
transactions contemplated herein or any unrelated
transactions (including any underlying transactions
between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit or
Documentary Facility Acceptance);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit or Documentary
Facility Acceptance proving to be forged, fraudulent or
invalid in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of
the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower or any
Subsidiary received by an Issuing Bank with respect to a
Facility Letter of Credit or Documentary Facility Acceptance
and distributed by the Agent to the Lenders on account
of their participation is thereafter set aside, avoided
or recovered from that Issuing Bank in connection with any
receivership, liquidation, reorganization or bankruptcy
proceeding, each Lender which received such distribution
shall, upon demand by that Issuing Bank, contribute such
Lender's Percentage of the amount set aside, avoided or
recovered together with interest at the rate required to be
paid by that Issuing Bank upon the amount required to be
repaid by it.
3.8. Compensation.
(a) The Borrower shall pay to the Agent, for
the ratable account of the Lenders, based upon the Lenders'
respective Percentages, a fee (the "Facility Letter of Credit
Fee") (i) with respect to each Standby Letter of Credit and
each Documentary Facility Acceptance, in an amount equal to
the product of the average daily undrawn amount of such
Facility Letter of Credit or unmatured amount of each
Documentary Facility Acceptance times the percentage indicated
as the Applicable Margin for the Facility Letter of Credit Fee
times the LC Factor, for the period from the Issuance Date or
Drawing Date thereof; as applicable, to but including the
final expiration date thereof and (ii) with respect to each
Commercial Letter of Credit, 50% of an amount equal to the
product of the average daily undrawn amount of such Facility
Letter of Credit times the percentage indicated as the
Applicable Margin for the Facility Letter of Credit Fee times
the LC Factor, for the period from the Issuance Date or
Drawing Date thereof, as applicable, to but including the
final expiration date thereof. The Facility Letter of Credit
Fee shall be due and payable in arrears on each Payment Date
and, to the extent any such fees are then due and unpaid, on
the Termination Date. The Agent shall promptly remit such
Facility Letter of Credit Fees, when paid, to the other
Lenders in accordance with their Percentages thereof.
(b) Each Issuing Bank shall have the right
to receive solely for its own account such amounts as it and
the Borrower may agree, in writing, to pay to such Issuing
Bank with respect to issuance fees for any Facility Letter of
Credit. In addition, each Issuing Bank shall be entitled to
receive its usual and customary costs and fees of issuing,
fronting and servicing Facility Letters of Credit.
(c) Each Issuing Bank shall have the right
to receive solely for its own account such amounts as it and
the Borrower may agree, in writing, to pay to such Issuing
Bank with respect to issuance fees for any Documentary
Facility Acceptance. In addition, each Issuing Bank shall be
entitled to receive its usual and customary costs and fees of
issuing, fronting and servicing Documentary Facility
Acceptance.
(x) The first paragraph of Section 4.2 of the Credit Agreement
is hereby amended by inserting the words "or Documentary
Facility Acceptance" after the words "Facility Letter of
Credit" where such words appear in such paragraph.
(xi) The second paragraph of Section 4.2 is hereby amended by
deleting such paragraph in its entirety and inserting the
following in its stead:
Each Borrowing Notice with respect to each such Advance, each
Letter of Credit Request with respect to each Facility Letter
of Credit and each Notice of Drawing with respect to each
request for a Documentary Facility Acceptance shall constitute
a representation and warranty by the Borrower that the
conditions contained in Sections 4.2(a) and (b) have been
satisfied. Any Lender or Issuing Bank may require a duly
completed compliance certificate in substantially the form of
Exhibit "C" hereto as a condition to making an Advance,
issuing a Letter of Credit or discounting an Acceptance.
(xii) Sections 2.20.1, 2.20.2, 6.2, 7.1, 8.1, 8.3, 9.1, 9.7,
12.2.1, 12.2.2, and 12.3.2 of the Credit Agreement are
hereby amended by inserting the words "and Documentary
Facility Acceptances" after the words "Facility Letters of
Credit" where such words appear throughout each such Section.
(xiii) The Credit Agreement is hereby amended by inserting as
Exhibits H and I thereto, the documents attached hereto as
Exhibit H and Exhibit I.
2. Conditions. The effectiveness of the amendments stated in this Amendment is
subject to on or prior to the date hereof, that the following conditions shall
have been satisfied in a manner, and in form and substance, as the case may be,
reasonably acceptable to Requisite Lenders:
(i) Amendment. This Amendment shall have been duly executed by
the Requisite Lenders and the Borrower and delivered to Agent.
(ii) No Default. No Default or Event of Default under the
Credit Agreement, as amended hereby, shall have occurred and
be continuing.
(iii) Warranties and Representations. The warranties and
representations of the Borrower contained in this Amendment,
the Credit Agreement, as amended hereby, and the other Loan
Documents shall be true and correct as of the date hereof,
with the same effect as though made on such date, except to
the extent that such warranties and representations expressly
relate to an earlier date, in which case such warranties and
representations shall have been true and correct as of
such earlier date.
(iv) Reaffirmation of Guaranty. Each Real Estate Subsidiary
and Operating Subsidiary shall have executed the Reaffirmation
of Guaranty in the form of Exhibit A hereto.
The date on which all of the above events have occurred is the "Effective Time".
If the Effective Time has not occurred by December 31, 1997, this Amendment
shall be of no force and effect.
3. Continuing Credits. Notwithstanding this Amendment, the Loans owing to
Lenders by Borrower under the Credit Agreement that remain outstanding as of the
date hereof shall constitute continuing Obligations of the Borrower under the
Credit Agreement and this Amendment shall not be deemed to evidence or result in
a novation, or repayment and reborrowing, of such Loans.
4. Miscellaneous.
(a) Captions. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
(b) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. Whenever possible each provision of
this Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Amendment shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
(c) Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
(d) Successors and Assigns. This Amendment shall be binding upon, and
shall inure to the sole benefit of the Borrower, Agent and Lenders, and their
respective successors and assigns.
(e) References. Any reference to the Credit Agreement contained in any
notice, request, certificate, or other document executed concurrently with or
after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained herein,
the terms of this Amendment are not intended to and do not serve to effect a
novation as to the Credit Agreement; instead, it is the express intention of the
parties hereto to reaffirm the Obligations created under the Credit Agreement
which is evidenced by the Notes. The Credit Agreement, as amended hereby, and
each of the other Loan Documents remain in full force and effect.
(g) Costs and Expenses. Borrower affirms and acknowledges that Section
9.7 of the Credit Agreement applies to this Amendment and the transactions and
agreements and documents contemplated hereunder.
5. Representations and Warranties. The Borrower represents and warrants to Agent
and Lenders that the execution, delivery and performance by the Borrower of this
Amendment are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action (including, without limitation, all necessary
shareholder approval) of the Borrower, do not require any governmental
approvals, consents or filings and do not and will not contravene or conflict
with any provision of law applicable to the Borrower, the certificate of
incorporation or bylaws of the Borrower or any order, judgment or decree of any
court or other agency of government or any contractual obligation binding upon
the Borrower, and this Amendment, the Credit Agreement, as amended hereby, and
each Loan Document is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms and that the
conditions set forth in Sections 2(ii) and (iii) hereof are true, correct and
complete as of the Effective Time.
[signature pages follow]
IN WITNESS WHEREOF, this Third Amendment to Credit Agreement has been
duly executed and delivered as of the day and year first above written.
HOMEBASE, INC.
By:________________________________
Print Name: _________________________
Title: ______________________________
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:________________________________
Print Name: _________________________
Title: ______________________________
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx,
Managing Director
BANKBOSTON, N.A.,
Individually and as Syndication Agent
By: _________________________
Print Name: Xxxxx Xxxxxx
Title: Managing Director
000 Xxxxxxx Xxxxxx
Mail Stop 01-09-04
Boston, Massachusetts 0210
Phone: (000) 000-0000
Fax: (000) 000-0000
XXXXX FARGO BANK, N.A.
Individually and as Documentation Agent
By:
Print Name: Xxxxxxxx Xxxxxx
Title: Vice President
By:_________________________________
Print Name:__________________________
Title:_______________________________
000 Xxxxxxxx Xxxxxxxxx, 16th Floor
MAC 2818-163
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
THE SUMITOMO BANK, LIMITED
By:
Print Name:__________________
Title:
By:
Print Name:__________________
Title:
EXHIBIT A
REAFFIRMATION OF GUARANTY
Each of the undersigned acknowledges receipt of a copy of the
Third Amendment to the Credit Agreement (the "Amendment") dated as of
December 19, 1997, consents to such amendment, and each of the transactions
referenced therein and hereby reaffirms its obligations under the Subsidiary
Guaranty dated as of July 9, 1997 in favor of The First National Bank of
Chicago, as Agent, and the Lenders (as defined in the Amendment).
Dated as of December 19, 1997
[GUARANTOR]
By:
Title:
EXHIBIT H
[FORM OF NOTICE OF DRAWING]
NOTICE OF DRAWING
Dated___________________________
TO: ________________________________(the "Issuing Bank")
FROM: HomeBase, Inc. (the "Borrower")
RE: Credit Agreement (the "Credit Agreement") dated as of July 9, 1997
by and among HOMEBASE, INC., THE FIRST NATIONAL BANK OF CHICAGO,
BANKBOSTON, N.A., XXXXX FARGO BANK, N.A., FLEET NATIONAL BANK,
SUMITOMO BANK, LTD. and UNION BANK OF CALIFORNIA, N.A.
We hereby give you notice pursuant to Section 3.4(B) of the Credit
Agreement of the Borrower's request that the Issuing Bank create Acceptances on
_________________________ (the "Drawing Date") by accepting and discounting in
accordance with Section 3.4(B) of the Credit Agreement our Drafts (or Drafts
drawn by a beneficiary under Facility Letter of Credit No. _________) in the
aggregate face amount of $____________ payable _____________ days after the
Drawing Date.
The Drafts to be accepted by the Issuing Bank shall be duly completed
by the Issuing Bank in accordance with the information provided in this Notice
of Drawing and otherwise in accordance with the provision of Section 3.4(B) of
the Credit Agreement:
We hereby certify to you and each Lender as follows:
1. No other financing for the transaction underlying the Drafts is
outstanding, the goods which are the subject of the transaction underlying the
Drafts are free of any lien and are not being used as collateral for any other
form of financing, and the transaction will produce payments to us exceeding the
face amount of all drafts (including the Drafts which are the subject to this
certificate) accepted by you arising out of said transaction.
2. |_| The transaction which gives rise to the Draft
is the importation/exportation/domestic shipment
of ________________________________ from
(name of commodity)
________________ to __________________________
(point of shipment) (place of destination)
pursuant to an existing contract;
|_| the Drafts were secured at the time of acceptance
by independent warehouse, terminal, or other
similar receipt conveying security title to
------------------------------------------
(name of readily marketable staple)
stored in _______________________________.
(country where stored)
3. The transaction underlying the Draft has a remaining term of term of
180 days or less, and will be concluded no later than, and at approximately the
same time as, the maturity date of the Draft.
4. The acceptance requested complies with the applicable regulations of
the Board of Governors of the Federal Reserve System of the United States
governing bankers acceptances and shall be eligible under such regulations for
rediscount by a Federal Reserve Bank.
Proceeds of the Issuing Bank's discount of Acceptance arising out of
Drafts drawn by a Facility Letter of Credit beneficiary shall be paid (after
discounting charges) to such beneficiary or its assignee.
We confirm that on the date hereof the applicable conditions precedent
set forth in Article III and Section 4.2 of the Credit Agreement relating to, or
to be satisfied by, the Borrower are satisfied as of the date hereof.
Unless otherwise defined herein, capitalized terms used herein have the
meanings assigned to them in the Agreement.
HomeBase, Inc.
By_________________________________
Authorized Signature
EXHIBIT I
[FORM OF DRAFT]
CUSTOMER DRAFT
No-.___________________
Date __________________
Location: ______________
$---------------------
On ____________________________ pay to the order of
[Issuing Bank]
___________________________________________________________________ Dollars
Value Received and Charge to Account of
To: __________________________
--------------------------
HomeBase, Inc.
By:_______________________
Authorized Signature
