SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO
SECOND
AMENDED AND RESTATED LOAN AGREEMENT
This
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (this “Agreement”) entered into and effective as of
April 5, 2007, by and among Xxxxxxxx Corporation, a Missouri corporation
(“Borrower”), LaSalle Bank National Association (“LaSalle”), as Administrative
Agent (“Administrative Agent”), and LaSalle and the other lenders listed on the
signature page hereto (the “Lenders”).
Recitals:
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A.
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Borrower,
Administrative Agent and Lenders are party to that Second Amended
and
Restated Loan Agreement dated as of November 30, 2005, and as amended
by
that certain First Amendment to Second Amended and Restated Loan
Agreement
dated as of July 28, 2006 (as amended from time to time, the “Original
Loan Agreement”).
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B.
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Administrative
Agent, the Lenders and Borrower have agreed to the provisions set
forth
herein on the terms and conditions contained
herein.
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Agreement
Therefore,
in consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Borrower,
Administrative Agent and the Lenders hereby agree as follows:
1.
Definitions. All
references to the “Agreement” or the “Loan Agreement” in the Original Loan
Agreement and in this Agreement shall be deemed to be references to the Original
Loan Agreement as it may be amended, restated, extended, renewed, replaced,
or
otherwise modified from time to time. Capitalized terms used and not otherwise
defined herein have the meanings given them in the Original Loan
Agreement.
2.
Effectiveness of Agreement.
This
Agreement shall become effective as of the date first written above, but only
if
this Agreement has been executed by Borrower, Administrative Agent and the
Lenders, and only if all of the documents listed on Exhibit A to this Agreement
have been delivered and, as applicable, executed, sealed, attested,
acknowledged, certified, or authenticated, each in form and substance
satisfactory to Administrative Agent and the Lenders.
3.
Consent.
For all
periods prior to the date of this Agreement, the Administrative Agent and the
Lenders hereby consent to the following being added to EBITDA: for the period
for which EBITDA is being calculated, non-cash charges of any share-based
compensation awards, to the extent such non-cash charges were expensed in
accordance with SFAS 123R or are required to be shown as an expense in any
financial statements for periods prior to the effective date of SFAS
123R.
4.
Reduction
of Aggregate Revolving Commitment.
Borrower
has previously provided written notice to the Administrative Agent and the
Lenders that it desires to reduce the Aggregate Revolving Loan Commitment by
Twenty Five Million Dollars ($25,000,000) from One Hundred Fifty Million Dollars
($150,000,000) to One Hundred and Twenty Five Million Dollars ($125,000,000).
The Borrower, the Administrative Agent and the Lenders hereby agree that,
effective on the date hereof, the Aggregate Revolving Loan Commitment shall
be
One Hundred and Twenty Five Million Dollars
($125,000,000),
and each Lender’s Revolving Loan Commitment shall be automatically reduced by
such Lender’s pro-rata share of the reduction of the Aggregate Revolving Loan
Commitment. Borrower shall pay to the Administrative Agent on the date hereof
any payment on the Aggregate Revolving Loan required as a consequence of the
foregoing reduction, including, principal, interest and LIBOR breakage fees
(if
any).
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5.
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Amendments.
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5.1. Base
Rate Revolving Margins and LIBOR Revolving
Margins. Effective
on the date of this Agreement, the table in Section 4.6 of the Original Loan
Agreement is deleted in its entirety and replaced with the
following:
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“If
the ratio of
Borrower’s
Funded
Indebtedness
to
EBITDA
(for the four
fiscal
quarter period of
Borrower
most recently
ended)
is
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LIBOR
Revolving
Margin
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Base
Rate
Revolving
Margin
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Unused
Fee
Rate
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Reference
Level
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greater
than or equal to 3.00 to 1.00 but less than 3.50 to 1.00
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2.000%
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0.000%
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0.250%
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III
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greater
than or equal to 2.50 to 1.00 but less than 3.00 to 1.00
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1.750%
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0.000%
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0.250%
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II
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less
than 2.50 to 1.00
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1.500%
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0.000%
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0.250%
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I”
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5.2. Definition
of EBITDA. The
definition of EBITDA in Section 14.1 of the Original Loan Agreement is deleted
in its entirety and replaced with the following:
“EBITDA
means,
with respect to any fiscal period of Borrower, the consolidated Net Income
of
the Borrower and its Subsidiaries for such fiscal period, as determined in
accordance with GAAP and reported on the Financial Statements for such period,
plus,
only to
the extent deducted from Net Income in accordance with GAAP (i) without
duplication, the sum of (A) Interest Expense in such period,
(B) income tax expense accrued for in such period, (C) amortization of
goodwill and other intangible assets and depreciation expense taken or accrued
for in such period, (D) any extraordinary non-cash loss in such period
whether incurred or accrued for, (E) any losses from discontinued
operations, (F) non-cash charges for the impairment or disposal of long
lived assets, goodwill, and other intangible assets, (G) solely for purposes
of
Section 14.2 and Section 14.3 of this Agreement (and for no other purpose,
including, without limitations, the calculations in Section 4.6 and Section
5.1
of this Agreement), the Special Additions, and (H) non-cash charges of any
share-based compensation awards, to the extent such non-cash charges were
expensed during such period in accordance with SFAS 123R or are required to
be
shown as an expense in any financial statements for periods prior to the
effective date of SFAS 123R, minus
(ii) the sum of, without duplication, (A) any extraordinary
income/gain in such period whether incurred or accrued for, and (B) any
income from discontinued operations.”
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5.3.
Maximum
Ratio of Funded Indebtedness to EBITDA. Effective
on the date of this Agreement, the table in Section 14.3 of the Original Loan
Agreement is deleted in its entirety and replaced with the
following:
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“Four
fiscal quarter period ended on or
most
recently before the following dates:
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Maximum
Ratio of Funded
Indebtedness
to EBITDA
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April
30, 2007, and each July 31, October 31,
January
31 and April 30 thereafter
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3.50:1.00”
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5.4. Exhibit
3. Effective
on the date of this Agreement, Exhibit 3 to the Original Loan Agreement is
deleted and replaced with the Exhibit 3 attached hereto.
6. Patriot
Act Notification. Administrative
Agent, each Lender and LaSalle (for itself and not on behalf of any other party)
hereby notifies the Borrower and each other Covered Person that, pursuant to
the
requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into
law October 26, 2001 (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower and each other Covered Person, which
information includes the name and address of the Borrower and each other Covered
Person and other information that will allow Administrative Agent, such Lender
or LaSalle, as applicable, to identify the Borrower and each other Covered
Person in accordance with the Act.
7. Representations
and Warranties of Borrower. Borrower
hereby represents and warrants to Administrative Agent and the Lenders that
(i)
Borrower’s execution, delivery and performance of this Agreement has been duly
authorized by all requisite action of Borrower, (ii) no consents are necessary
from any third parties for Borrower’s execution, delivery or performance of this
Agreement, (iii) this Agreement, the Loan Agreement, and each of the other
Loan
Documents, constitute the legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their terms, except to the
extent that the enforceability thereof against Borrower may be limited by
bankruptcy, insolvency or other laws affecting the enforceability of creditors
rights generally or by equity principles of general application, (iv) except
as
disclosed on the supplemental disclosure schedule attached hereto as Exhibit
B,
all of the representations and warranties contained in Section 10 of the Loan
Agreement are true and correct with the same force and effect as if made on
and
as of the date of this Agreement, (v) after giving effect to this Agreement,
there is no Existing Default, (vi) since the Effective Date, except for
amendments to the Borrower's bylaws (a) setting the date of the Borrower's
annual meeting, and (b) allowing Borrower to issue uncertificated shares of
stock so as to be eligible to participate in the Direct Registration System
as
required by Securities and Exchange Commission rules, there have been no change
or modification to the Charter Documents of Borrower or any other Covered
Person, (vii) since the date of the Initial Financial Statements, there has
been
no change in the financial condition or business operations of Borrower or
any
other Covered Person which could reasonably be expected to result in a Material
Adverse Effect, (viii) there are no proceedings of any kind, pending or
threatened against Borrower or any other Covered Person, which could reasonably
be expected to result in a Material Adverse Effect, and (ix) there are no
Security Interests with respect to the Borrower or its assets, except for
Permitted Security Interests.
8. Reaffirmation. Borrower
hereby represents, warrants, acknowledges and confirms that (i) the Loan
Agreement and the other Loan Documents remain in full force and effect, (ii)
Borrower has no defenses to its obligations under the Loan Agreement and the
other Loan Documents, and (iii) Borrower has no claim against Administrative
Agent or any Lender arising from or in connection with the Loan Agreement or
the
other Loan Documents and any such claim is hereby irrevocably waived and
released and discharged forever.
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9. Governing
Law. This
Agreement has been deemed to be executed and delivered in Chicago, Illinois,
and
shall be governed by and construed under the laws of the State of Illinois
without giving effect to choice or conflicts of law principles
thereunder.
10. Section
Titles. The
section titles in this Agreement are for convenience of reference only and
shall not be construed so as to modify any provisions of this
Agreement.
11. Counterparts;
Facsimile Transmissions. This
Agreement may be executed in one or more counterparts and on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to this
Agreement may be given by facsimile or other electronic transmission, and such
signatures shall be fully binding on the party sending the same.
12. Incorporation
By Reference. Administrative
Agent, the Lenders and Borrower hereby agree that all of the terms of the Loan
Documents are incorporated in and made a part of this Agreement by this
reference.
13. Fees
and Expenses. Borrower
shall promptly pay to Administrative Agent all fees, expenses and other amounts
owing to Administrative Agent under the Loan Agreement and the other Loan
Documents, including, without limitation, all fees, costs and expenses incurred
by Administrative Agent in connection with the preparation, negotiation,
execution, and delivery of this Agreement.
14. Notice—Oral
Commitments Not Enforceable. Nothing
contained in the following notice shall be deemed to limit or modify the terms
of the Loan Documents:
ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED
THAT
IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT COMPANY (BORROWER)
AND
THE BANK (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
THE
COMPANY (BORROWER) AND THE BANK (CREDITOR) REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF
THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY
IT.
Borrower
acknowledges that there are no other agreements between Administrative Agent,
Lenders, and Borrower, oral or written, concerning the subject matter of the
Loan Documents, and that all prior agreements concerning the same subject
matter, including any proposal or commitment letter, are merged into the Loan
Documents and thereby extinguished.
15. Statutory
Notice-Insurance.
The
following notice is given pursuant to Section 10 of the Collateral Protection
Act set forth in Chapter 815 Section 180/1 of the Illinois Compiled Statutes
(1996); nothing contained in such notice shall be deemed to limit or modify
the
terms of the Loan Documents:
UNLESS
YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH
US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR
COLLATERAL. THIS
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INSURANCE
MAY, BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE THAT WE PURCHASE MAY
NOT
PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION
WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT
ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED
BY
OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BE
RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT
OF
THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF
THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING
BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST
OF
INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.
{remainder
of page intentionally left blank; signature page immediately
follows}
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IN
WITNESS WHEREOF, this Agreement has been duly executed as of the date first
above written.
XXXXXXXX CORPORATION, a Missouri corporation, as Borrower
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President & Chief Financial Officer
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LASALLE
BANK NATIONAL ASSOCIATION,
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as
Administrative Agent and a Lender
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By:
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/s/
Xxxxxxxx X. Xxxxxxx
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Name:
Xxxxxxxx X. Xxxxxxx
Title:
First Vice President
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XXXXX
FARGO BANK, N.A., a Lender
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
Title:
Vice President
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UMB
BANK, NATIONAL ASSOCIATION, a Lender
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By:
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/s/
Xxxxx X. Xxxx
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Name:
Xxxxx X. Xxxx
Title:
Executive Vice President
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REGIONS
BANK, a Lender
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
Title:
Vice President
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NATIONAL
CITY BANK, N.A. formerly known as National City
Bank
of the Midwest, a Lender
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By:
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/s/
X. Xxxxxx Tzinberg
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Name:
X. Xxxxxx Xxxxxxxx
Title:
Vice President
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ACKNOWLEDGED
AND AGREED TO AS OF April __, 2007:
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XXXXXXXX
TEXTILE SERVICES, INC., a New York corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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ANGELICA
TEXTILE SERVICES, INC., a California corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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SOUTHERN
SERVICE COMPANY, a California corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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ANGELICA
REALTY CO., a California corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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THE
SURGIPACK CORPORATION, a Massachusetts corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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ROYAL
INSTITUTIONAL SERVICES, INC., a Massachusetts
corporation
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxx
Title:
Vice President
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7
Exhibit
A
Documents
and Requirements
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1.
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Second
Amendment to Second Amended and Restated Loan
Agreement.
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8
Exhibit
B
Disclosure
Schedule (Supplemental)
Section
10.35 of the Disclosure Schedule (Real Property) is further amended by deleting
the following real property which was sold by Borrower:
Rosedale1
000
Xxxxxxxx Xxx.
Xx.
Xxxxx, XX
(Real
Estate)
1
Subject
to long-term lease to Bi-State Development Agency
Section
10.37 of the Disclosure Schedule (Chief Place of Business; Locations of
Collateral) is amended as follows:
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10.37.1
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Location
of chief executive office and principal places of business is amended
to
read as follows solely to reflect the change in the street name of
Borrower’s Alpharetta, Georgia
location:
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000
X.
Xxxxx Xxxx Xxxx
Xxxxx
000
Xxxxxxxxxxxx,
XX 00000
0000
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
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10.37.2
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Location
of books and records is amended to read as follows solely to reflect
the
change in the street name of Borrower’s Alpharetta, Georgia
location:
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000
X.
Xxxxx Xxxx Xxxx
Xxxxx
000
Xxxxxxxxxxxx,
XX 00000
0000
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
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10.37.3
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Location
of Collateral is further amended by deleting the following location
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which
was
sold by Borrower:
Rosedale1
000
Xxxxxxxx Xxx.
Xx.
Xxxxx, XX
(Real
Estate)
1
Subject
to long-term lease to Bi-State Development Agency
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EXHIBIT
3
LENDERS’
COMMITMENTS AND PRO-RATA SHARES
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LENDER
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TOTALS
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REVOLVING
LOAN COMMITMENT
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PRO-RATA
SHARES
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LaSalle
Bank
National
Association
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$39,583,333.34
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$39,583,333.34
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31.666666667%
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Xxxxx
Fargo
Bank,
N.A.
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$27,083,333.34
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$27,083,333.34
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21.666666667%
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UMB
Bank,
National
Association
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$24,166,666.66
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$24,166,666.66
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19.333333333%
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Regions
Bank
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$19,166,666.66
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$19,166,666.66
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15.333333333%
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National
City
Bank,
N.A.
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$15,000,000.00
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$15,000,000.00
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12.000000000%
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AGGREGATES
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$125,000,000.00
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$125,000,000.00
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100.000000000%
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10
