FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
SECOND
AMENDED AND RESTATED LOAN AGREEMENT
This
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT (this “Agreement”) is entered into and effective as
of July 28, 2006, 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, as amended
from
time to time (as amended, the “Original Loan
Agreement”).
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B.
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Administrative
Agent, the Required 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 Required 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
Required 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 Required Lenders and the First
Amendment Fee (as defined on Exhibit A) has been paid in full in cash. The
First
Amendment Fee shall be paid solely to, and shared solely by, each of the
Required Lenders who has executed this Amendment and delivered its signature
to
Administrative Agent on or before the date first written above, with the
pro-rata shares of the Lenders being readjusted to take into account any
Lender
not executing this Amendment.
3. Amendments.
3.1. 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, and (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, 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.”
3.2. Definition
of Funded Indebtedness. The
definition of Funded Indebtedness in Section 14.1 of the Original Loan Agreement
is deleted in its entirety and replaced with the following:
“Funded
Indebtedness
means
the result of (i) outstanding principal balance of the Loan Obligations and
other Indebtedness for borrowed money (including, without limitation, the
Indebtedness permitted by Section 13.2.10), plus (ii) the Letter of Credit
Exposure, plus (iii) the initial capitalized cost of assets subject to
Capital Leases at the time of calculation, less (iv) (A) for all fiscal
quarter periods ending after July 28, 2006 and on or before January 31, 2007,
cash in excess of $500,000, as shown on the balance sheet for the most recent
fiscal quarter ended, and (B) for all other periods, if there is no Indebtedness
outstanding as permitted by Section 13.2.7 of this Agreement, cash in excess
of
$500,000, as shown on the balance sheet for the most recent fiscal quarter
ended. The foregoing shall exclude the outstanding principal amount of the
Indebtedness permitted by Section 13.2.7 of this Agreement.”
3.3. New
Definition of Special Additions. A
new
definition of Special Additions is added to Section 14.1 of the Original
Loan
Agreement in alphabetical order as follows:
“Special
Additions
means
(i) for the fiscal quarter period ended on or most recently before October
31,
2005, an amount equal to $102,100, (ii) for the fiscal quarter period ended
on
or most recently before January 31, 2006, an amount equal to $769,600, (iii)
for
the fiscal quarter period ended on or most recently before April 30, 2006,
an
amount equal to $958,600, (iv) for the fiscal quarter period ending on or
most
recently before July 31, 2006, an amount equal to $751,000, and (v) for the
fiscal quarter period ending on or most recently before the October 31, 2006,
an
amount equal to $422,100.”
4. 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.
5. 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
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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 an amendment to the Borrower’s bylaws setting the date of the Borrower’s
annual meeting, there has 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. Incorporation
By Reference. Administrative
Agent, the Required 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.
11. 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.
12. Notice—Oral
Commitments Not Enforceable. Nothing
contained in the following notice shall be deemed to limit or modify the
terms
of the Loan Documents:
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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.
13. 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 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
By: /s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President & Chief Financial Officer
LASALLE
BANK NATIONAL ASSOCIATION,
as
Administrative Agent and a Lender
By:
/s/ Xxxxxxxx X.
Xxxxxxx
Name:
Xxxxxxxx X. Xxxxxxx
Title:
Vice President
NATIONAL
CITY BANK OF THE MIDWEST, a Lender
By:
/s/ X. Xxxxxx
Xxxxxxxx
Name:
Xxxxxx
Xxxxxxxx
Title:
Vice
President
UMB
BANK, NATIONAL ASSOCIATION, a Lender
By:
/s/ Xxxxx X.
Xxxx
Name:
Xxxxx X.
Xxxx
Title:
Executive Vice
President
XXXXX
FARGO BANK, N.A., a Lender
By:
/s/
Xxxx X.
Xxxxxx
Name:
Xxxx X.
Xxxxxx
Title:
Vice
President
REGIONS
BANK, a Lender
By:
/s/ Xxxxxx X.
Xxxxx
Name:
Xxxxxx X.
Xxxxx
Title:
Vice
President
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ACKNOWLEDGED
AND AGREED TO AS OF July 28, 2006:
XXXXXXXX
TEXTILE SERVICES, INC.,
a New
York corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
ANGELICA
TEXTILE SERVICES, INC.,
a
California corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
SOUTHERN
SERVICE COMPANY,
a
California corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
ANGELICA
REALTY CO.,
a
California corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
THE
SURGIPACK CORPORATION, a
Massachusetts corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
ROYAL
INSTITUTIONAL SERVICES, INC., a
Massachusetts corporation
By:
/s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Vice President
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Exhibit
A
Documents
and Requirements
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1.
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First
Amendment to Second Amended and Restated Loan
Agreement.
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2.
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First
Amendment Fee of $37,500.00.
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7
Exhibit
B
Disclosure
Schedule (Supplemental)
Section
10.35 of the Disclosure Schedule (Real Properties) is amended by
deleting:
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Long
Beach
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Rio
Vista
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0000
X. Xxxxxx Xxxxxx
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0000
Xxx Xxxxx Xxx.
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Xxxx
Xxxxx, XX 00000
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Xxx
Xxxxxxx, XX 00000
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(Laundry
Plant)
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(Laundry
Plant)
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Sold
12/12/05
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Sale
Pending
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St.
Louis
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Philadelphia
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000
X. Xxxxxxxxxx Xx.
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58th&
Lindbergh Blvd.
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Columbia,
IL 62236
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Xxxxxxxxxxxx,
XX 00000
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(Laundry
Plant)
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(Laundry
Plant)
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Sold
12/29/05
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Sold
03/03/06
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Section
10.37.3 of the Disclosure Schedule (Location of Collateral) is amended by
deleting:
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Long
Beach
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Rio
Vista
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0000
X. Xxxxxx Xxxxxx
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0000
Xxx Xxxxx Xxx.
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Xxxx
Xxxxx, XX 00000
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Xxx
Xxxxxxx, XX 00000
|
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(Laundry
Plant)
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(Laundry
Plant)
|
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Sold
12/12/05
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Sale
Pending
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St.
Louis
|
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000
X. Xxxxxxxxxx Xx.
|
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Xxxxxxxx,
XX 00000
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|
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(Laundry
Plant)
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Sold
12/29/05
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8
