OMNIBUS AMENDMENT AGREEMENT, LIMITED CONSENT AND WAIVER
Exhibit 10.13
OMNIBUS AMENDMENT AGREEMENT, LIMITED CONSENT AND WAIVER
THIS OMNIBUS AMENDMENT AGREEMENT, LIMITED CONSENT AND WAIVER (this “Amendment”) is
made and entered into as of October 28, 2010, by and between ▇▇▇▇▇▇▇ INTERNATIONAL, INC., a Nevada
corporation (“▇▇▇▇▇▇▇”), HB SERVICE, LLC, a Delaware limited liability company (“HB
Service”), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to Wachovia Bank,
National Association) (the “Bank”) and the other Persons party hereto.
BACKGROUND STATEMENT
▇. ▇▇▇▇▇▇▇ and the Bank are parties to a Credit Agreement, dated as of November 14, 2005, as
amended by that certain First Amendment to Credit Agreement dated as of April 26, 2006, by that
certain Second Amendment and Waiver to Credit Agreement dated as of September 8, 2006, by that
certain Third Amendment and Waiver to Credit Agreement dated as of March 21, 2008, by that certain
Fourth Amendment and Waiver to Credit Agreement dated as of June 25, 2008, by that certain Fifth
Amendment and Waiver to Credit Agreement dated as of June 30, 2009, by that certain Sixth Amendment
to Credit Agreement, dated as of November 18, 2009, and by that certain Omnibus Amendment
Agreement, Limited Consent and Waiver, dated as of August 13, 2010 (the “▇▇▇▇▇▇▇ Credit
Agreement”), pursuant to which the Bank has made available to ▇▇▇▇▇▇▇ a revolving credit
facility in the aggregate principal amount of $10,000,000. As of the date hereof, the current
outstanding principal amount of the loans outstanding under the ▇▇▇▇▇▇▇ Credit Agreement is
$10,000,000, and pursuant to the terms of the ▇▇▇▇▇▇▇ Credit Agreement, the current Applicable
Margin (as defined in the ▇▇▇▇▇▇▇ Credit Agreement) is 2.85%. The obligations of ▇▇▇▇▇▇▇ under the
▇▇▇▇▇▇▇ Credit Agreement have been guaranteed by (i) the Subsidiary Guarantors (as defined in the
▇▇▇▇▇▇▇ Credit Agreement) pursuant to the Guaranty (as defined in the ▇▇▇▇▇▇▇ Credit Agreement),
(ii) HB Service and its subsidiaries pursuant to the HB Service Guaranty (as defined in the ▇▇▇▇▇▇▇
Credit Agreement) and (iii) H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”) pursuant to the guaranty
agreement made by ▇▇▇▇▇▇▇▇ in favor of the Bank, dated as of June 25, 2008 (as amended from time to
time, the “▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Guaranty”), subject to the terms and conditions therein. The
obligations of ▇▇▇▇▇▇▇ under the ▇▇▇▇▇▇▇ Credit Agreement have been secured by a lien on the assets
of ▇▇▇▇▇▇▇ and the Subsidiary Guarantors and HB Service and it subsidiaries pursuant to the terms
of the Security Agreement and the HB Service Security Agreement (each as defined in the ▇▇▇▇▇▇▇
Credit Agreement), respectively.
B. HB Service and the Bank are parties to a Credit Agreement, dated as of June 25, 2008, as
amended by that certain First Amendment and Waiver to Credit Agreement dated as of June 30, 2009,
by that certain Second Amendment to Credit Agreement dated as of November 18, 2009, and by that
certain Omnibus Amendment Agreement, Limited Consent and Waiver, dated as of August 13, 2010 (the
“HB Service Credit Agreement”), pursuant to which the Bank has made available to HB Service
a revolving credit facility in the aggregate principal amount of $15,000,000. As of the date
hereof, the current outstanding principal amount of the loans outstanding under the HB Service
Credit Agreement is $15,000,000, and pursuant to the terms of the HB Service Credit Agreement, the
current Applicable Margin (as defined in the HB Service Credit Agreement) as of the date hereof is
1.50%. The obligations of HB Service under the HB
Service Credit Agreement have been guaranteed by ▇▇▇▇▇▇▇▇ pursuant to the guaranty agreement made
by ▇▇▇▇▇▇▇▇ in favor of the Bank, dated as of June 25, 2008 (as amended from time to time, the
“▇▇▇▇▇▇▇▇ ▇▇ Service Guaranty”).
▇. ▇▇▇▇▇▇▇ has notified the Bank that it desires to effectuate a transaction, pursuant to
which, ▇▇▇▇▇▇▇ will merge with and into Coolbrands International (Nevada), Inc. (“Merger
Sub”), a Nevada corporation and a wholly owned subsidiary of Coolbrands International, Inc., a
corporation incorporated under the laws of Canada, which prior to such merger, will undergo a
transaction pursuant to which it will be converted into a corporation organized under the laws of
Delaware and will change its name to ▇▇▇▇▇▇▇ Hygiene, Inc. (such entity, “▇▇▇▇▇▇▇ Hygiene”,
and such transaction, the “Proposed Transaction”). Following the Proposed Transaction,
▇▇▇▇▇▇▇ will be a wholly owned subsidiary of ▇▇▇▇▇▇▇ Hygiene.
D. The consummation of the Proposed Transaction would violate the terms of the ▇▇▇▇▇▇▇ Credit
Agreement, and therefore ▇▇▇▇▇▇▇ has requested that the Bank give its consent to the Proposed
Transaction prior to the consummation thereof and to make certain amendments to the HB Service
Credit Agreement and the ▇▇▇▇▇▇▇ Credit Agreement in connection therewith.
▇. ▇▇▇▇▇▇▇ is currently in default under the ▇▇▇▇▇▇▇ Credit Agreement as a result of the
Events of Default set forth on Exhibit A hereto which have occurred and are continuing as
of the date hereof (collectively, the “▇▇▇▇▇▇▇ Specified Events of Default”). ▇▇▇▇▇▇▇ has
requested that the Bank waive the ▇▇▇▇▇▇▇ Specified Events of Default.
F. HB Service is currently in default under the HB Service Credit Agreement as a result of the
Events of Default set forth on Exhibit B hereto which have occurred and are continuing as
of the date hereof (collectively, the “HB Service Specified Events of Default”). HB Service
has requested that the Bank waive the HB Service Specified Events of Default.
G. The Bank has agreed to consent to the Proposed Transaction, to amend the HB Service Credit
Agreement and the ▇▇▇▇▇▇▇ Credit Agreement, and to waive the HB Service Specified Events of Default
and the ▇▇▇▇▇▇▇ Events of Default, as requested by ▇▇▇▇▇▇▇ and HB Service, on the terms and subject
to the conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
LIMITED CONSENT
The Bank hereby offers its limited consent to the Proposed Transaction, provided that:
(a) the Proposed Transaction shall have been consummated no later than 90 days after the
date hereof;
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(b) the Proposed Transaction shall have been consummated pursuant to the terms of the
Agreement and Plan of Merger, dated as of August 17, 2010, as in effect on the date hereof (the
“Coolbrands Merger Agreement”) and the closing conditions set forth in Article VII of the
Coolbrands Merger Agreement shall have been satisfied;
(c) Immediately following the consummation of the Proposed Transaction, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇ shall have appointed 5 of the 8 directors of ▇▇▇▇▇▇▇ Hygiene (two of which shall be
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, individually); and
(d) ▇▇▇▇▇▇▇ shall have provided evidence to the Bank that, (i) prior to the closing of the
Proposed Transaction, ▇▇▇▇▇▇▇ Hygiene shall have converted into a corporation incorporated under
the laws of Delaware, and (ii) as of the closing of the Proposed Transaction, ▇▇▇▇▇▇▇ Hygiene shall
have a minimum of $55,000,000 (or the equivalent thereof in Canadian dollars) in unrestricted cash,
cash equivalents and short term investments.
In connection with such limited consent granted by the Bank herein, the Bank shall deliver a
separate letter to ▇▇▇▇▇▇▇ and HB Service, confirming its limited consent to the Proposed
Transaction subject to the conditions set forth above (the “Confirmation Letter”). Each party
hereto agrees that such Confirmation Letter is being provided at the request of ▇▇▇▇▇▇▇ and HB
Service to evidence the satisfaction of a condition precedent to closing the Proposed Transaction,
and shall not affect the rights, obligations, agreements and acknowledgements in this Amendment of
the parties hereto.
ARTICLE II
AMENDMENTS TO ▇▇▇▇▇▇▇ CREDIT AGREEMENT
2.1 Amendments to Section 1.1 (Defined Terms) of the ▇▇▇▇▇▇▇ Credit Agreement.
(a) The definition of “Revolving Credit Termination Date” is hereby deleted in its entirety
and replaced with the following:
“Revolving Credit Termination Date” shall mean the date of
the earliest to occur of the following: (i) February 28, 2011; (ii)
the date on which the Bank makes demand for payment of the Revolving
Loans in accordance with Article VIII; (iii) such date of
termination as is mutually agreed upon by the Bank and the Borrower;
and (iv) the date after all Obligations have been paid in full and
the Bank is no longer obligated to make Revolving Loans hereunder.
(b) The following defined terms are hereby added to Section 1.1 in appropriate alphabetical
order:
“Coolbrands Merger” means the proposed transaction pursuant
to which the Borrower will merge with and into Coolbrands
International (Nevada), Inc., a Nevada corporation and wholly
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owned subsidiary of ▇▇▇▇▇▇▇ Hygiene, with the Borrower as the
surviving company, and that is consummated in accordance with the
terms of the Amendment Agreement, Limited Consent and Waiver, dated
as of October 28, 2010, by and among the Borrower, HB Service, the
Bank and certain other Persons party thereto.
“▇▇▇▇▇▇▇ Hygiene” means ▇▇▇▇▇▇▇ Hygiene, Inc., a Delaware
corporation, formerly known as Coolbrands International, Inc., a
corporation incorporated under the laws of Canada.
2.2 Amendments to Section 8.1 (Events of Default) of the ▇▇▇▇▇▇▇ Credit
Agreement. Section 8.1(p) of the ▇▇▇▇▇▇▇ Credit Agreement is hereby deleted in its entirety and
replaced with the following:
(q) (i) Prior to the consummation of the Coolbrands Merger, ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ cease collectively to own, either
directly or indirectly, on a fully diluted basis (x) a majority of
the Capital Stock entitled to vote in the election of directors of
the Borrower, or (y) a majority of Capital Stock entitled to share
in the profits of the Borrower generally, and following the
consummation of the Coolbrands Merger, the Borrower shall cease to
be a wholly owned Subsidiary of ▇▇▇▇▇▇▇ Hygiene, or (ii) at any time
HB Service shall cease to be a wholly owned subsidiary of the
Borrower.
ARTICLE III
AMENDMENTS TO HB SERVICE CREDIT AGREEMENT
3.1 Amendments to Section 1.1 (Defined Terms) of the HB Service Credit
Agreement.
(a) The definition of “Revolving Credit Termination Date” is hereby deleted in its entirety
and replaced with the following:
“Revolving Credit Termination Date” shall mean the date of
the earliest to occur of the following: (i) February 28, 2011; (ii)
the date on which the Bank makes demand for payment of the Revolving
Loans in accordance with Article VIII; (iii) such date of
termination as is mutually agreed upon by the Bank and the Borrower;
and (iv) the date after all Obligations have been paid in full and
the Bank is no longer obligated to make Revolving Loans hereunder.
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ARTICLE IV
WAIVER
Based upon the representations and warranties contained herein, the Bank hereby waives each of
the HB Service Specified Events of Default and the ▇▇▇▇▇▇▇ Specified Events of Default and any
remedy the Bank would be entitled to as a result thereof. This waiver is limited as specified and
shall not constitute or be deemed to constitute an amendment, modification or waiver of any
provision of the HB Service Credit Agreement or the ▇▇▇▇▇▇▇ Credit Agreement or a waiver of any
Default or Event of Default (as defined in each of the HB Service Credit Agreement and the ▇▇▇▇▇▇▇
Credit Agreement) except as expressly set forth herein with respect to the HB Service Specified
Events of Default and the ▇▇▇▇▇▇▇ Specified Events of Default.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
| Each of ▇▇▇▇▇▇▇ and HB Service hereby represents and warrants that: |
5.1 Representations in Credit Agreement. The representations and warranties of ▇▇▇▇▇▇▇
set forth in the ▇▇▇▇▇▇▇ Credit Agreement and of HB Service set forth in the HB Service Credit
Agreement are true and correct in all material respects as of the date hereof, except to the extent
such representations and warranties relate solely to or are specifically expressed as of a
particular date or period.
5.2 Compliance with Credit Agreement. After giving effect to this Amendment, each of
HB Service and ▇▇▇▇▇▇▇ is in compliance with all covenants, terms and provisions set forth in the
HB Service Credit Agreement and the ▇▇▇▇▇▇▇ Credit Agreement, respectively, to be observed or
performed by it.
5.3 Due Authorization. This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of ▇▇▇▇▇▇▇, ▇▇ Service and each of their respective
subsidiaries and each of this Amendment, the HB Service Credit Agreement and the ▇▇▇▇▇▇▇ Credit
Agreement, constitutes the legal, valid and binding obligation of HB Service and ▇▇▇▇▇▇▇, to the
extent each is a party thereto, enforceable against it in accordance with its terms and each of the
other Credit Documents (as defined in each of the HB Service Credit Agreement and the ▇▇▇▇▇▇▇
Credit Agreement) constitutes the legal, valid and binding obligation of ▇▇▇▇▇▇▇, ▇▇ Service, and
each of their respective Subsidiaries, to the extent party thereto, enforceable against each such
party in accordance with its terms.
5.4 No Event of Default. No Default or Event of Default under the HB Service Credit
Agreement or the ▇▇▇▇▇▇▇ Credit Agreement has occurred or is continuing (after giving effect to
this Amendment).
5.5 Continuing Security Interests. All obligations of ▇▇▇▇▇▇▇, the Subsidiary
Guarantors and HB Service and its Subsidiaries under the ▇▇▇▇▇▇▇ Credit Agreement and the other
Credit Documents (as defined in the ▇▇▇▇▇▇▇ Credit Agreement) continue to be or will be
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secured by the Bank’s security interests in all of the collateral granted under the ▇▇▇▇▇▇▇ Credit
Agreement and the Security Documents (as defined in the ▇▇▇▇▇▇▇ Credit Agreement), and nothing
herein will affect the validity, enforceability, perfection or priority of such security interests.
5.6 No Defenses. Neither ▇▇▇▇▇▇▇ nor HB Service has any right of setoff,
counterclaim, or defense to payment of its respective liabilities or obligations under the ▇▇▇▇▇▇▇
Credit Agreement or HB Service Credit Agreement, respectively. The Bank hereby expressly reserves
all rights and remedies it may have against ▇▇▇▇▇▇▇, ▇▇ Service and all other Persons (as defined
in both the ▇▇▇▇▇▇▇ Credit Agreement and the HB Service Credit Agreement) who may be or may
hereafter become secondarily liable for the repayment of the obligations thereunder.
ARTICLE VI
COVENANTS
6.1 Further Assurances. Following the consummation of the Proposed Transaction, each
Amendment Party (as defined below) hereby agrees to make, execute, endorse, acknowledge and deliver
any amendments, modifications or supplements hereto and restatements hereof and any other
agreements, instruments or documents, and take any and all such other actions as reasonably
requested by the Bank to demonstrate or reaffirm its obligations under the Loan Documents (as
defined in the ▇▇▇▇▇▇▇ Credit Agreement and the HB Service Credit Agreement) in connection with the
consummation of the Proposed Transaction.
6.2 Guaranty of ▇▇▇▇▇▇▇ Hygiene. Within 15 Business Days (as defined in the ▇▇▇▇▇▇▇
Credit Agreement) of the consummation of the Proposed Transaction, ▇▇▇▇▇▇▇ Hygiene shall deliver to
the Bank:
(a) (i) a guaranty agreement, pursuant to which it has guaranteed the obligations of ▇▇▇▇▇▇▇
under the ▇▇▇▇▇▇▇ Credit Agreement, (ii) a pledge and security agreement, pursuant to which it has
granted a security interest in favor of the Bank in all of its assets to secure its obligations
under the guaranty described in clause (i) above, (iii) a guaranty agreement, pursuant to which it
has guaranteed the obligations of HB Service under the HB Service Credit Agreement, and (iv) such
other documents, certificates and instruments reasonably requested by the Bank in connection
therewith, in each case in form and substance reasonably acceptable to the Bank; and
(b) resolutions of the board of directors (or other similar governing body) of ▇▇▇▇▇▇▇
Hygiene, in form and substance reasonably acceptable to the Bank, authorizing the execution and
delivery of this documents listed in clause (a) above.
6.3 Failure to Comply. The failure of HB Service or ▇▇▇▇▇▇▇ or any other Amendment
Party to comply with the covenants set forth in this Article VI shall constitute an Event of
Default under, and as defined in, each of the HB Service Credit Agreement and the ▇▇▇▇▇▇▇ Credit
Agreement.
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ARTICLE VII
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof upon the satisfaction of each of
the following conditions precedent:
(a) The Bank shall have received a duly executed counterpart of this Amendment from each of
▇▇▇▇▇▇▇, the Subsidiary Guarantors (as defined in the ▇▇▇▇▇▇▇ Credit Agreement), HB Service and
each of its subsidiaries and ▇▇▇▇▇▇▇▇ (collectively, the “Amendment Parties”);
(b) The Bank shall have received resolutions of the board of directors (or other similar
governing body) of each of ▇▇▇▇▇▇▇ and HB Service, in form and substance reasonably acceptable to
the Bank, authorizing the execution and delivery of this Amendment;
(c) ▇▇▇▇▇▇▇
shall have paid to the Bank a non-refundable amendment fee of
$10,000;
(d) ▇▇▇▇▇▇▇ and HB Service shall have paid all reasonable out-of-pocket costs and expenses of
the Bank in connection with the preparation, negotiation, execution and delivery of this Amendment
(including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Bank with respect thereto); and
(e) The Bank shall have received such other documents, certificates, opinions, instruments and
other evidence as the Bank may reasonably request, all in a form and substance satisfactory to the
Bank and its counsel.
ARTICLE VIII
ACKNOWLEDGEMENTS; REPRESENTATIONS
8.1 Amendment Parties. Each of the Amendment Parties hereby approves and consents
to the transactions contemplated by this Amendment and the Proposed Transaction, confirms and
agrees that, after giving effect to this Amendment, each of the ▇▇▇▇▇▇▇ Credit Agreement, the HB
Service Credit Agreement and the other Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit
Agreement and the HB Service Credit Agreement) to which it is a party, remains in full force and
effect and enforceable against it in accordance with its terms and shall not be discharged,
diminished, limited or otherwise affected in any respect, and represents and warrants to the Bank
that it has no knowledge of any claims, counterclaims, offsets, or defenses to or with respect to
its obligations under the Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit Agreement and
the HB Service Credit Agreement), or if it has any such claims, counterclaims, offsets, or defenses
to such Credit Documents or any transaction related to such Credit Documents, the same are hereby
waived, relinquished, and released in consideration of the execution of this Amendment.
Furthermore, each of Amendment Parties acknowledges and agrees that its obligations under the
Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit Agreement and the HB Service Credit
Agreement) shall not be discharged, limited or otherwise affected by reason of the Bank’s actions
with respect to any other Amendment Party, or with respect to, or in adding or releasing, any other
guarantor of the obligations of ▇▇▇▇▇▇▇ under the ▇▇▇▇▇▇▇ Credit Agreement or HB Service under the
HB Service Credit Agreement, in
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each case without the necessity of giving notice to or obtaining the consent of the Guarantor.
Without limiting the generality of the foregoing, ▇▇▇▇▇▇▇▇ hereby specifically reaffirms all of his
obligations and covenants under each of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Guaranty and the HB Service ▇▇▇▇▇▇▇▇
Guaranty and agrees that none of such obligations and covenants shall be affected by the execution
and delivery of this Amendment and the consummation of the Proposed Transaction. The
acknowledgements and confirmations by each of the Amendment Parties herein is made and delivered to
induce the Bank to enter into this Amendment and continue to extend credit to ▇▇▇▇▇▇▇, ▇▇ Service
and the other Amendment Parties, and each of the Amendment Parties acknowledges that the Bank would
not enter into this Amendment and continue to extend such credit in the absence of the
acknowledgement and confirmation contained herein.
8.2 ▇▇▇▇▇▇▇ Guarantors. Each of the Subsidiary Guarantors, HB Service and each of
its Subsidiaries and H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the “▇▇▇▇▇▇▇ Guarantors”) further
represents that it has knowledge of ▇▇▇▇▇▇▇’▇, ▇▇ Service’s and the other Amendment Parties’
financial condition and affairs and that it has adequate means to obtain from ▇▇▇▇▇▇▇, ▇▇ Service
and the other Amendment Parties on an ongoing basis information relating thereto and to ▇▇▇▇▇▇▇’▇,
▇▇ Service’s and the other Amendment Parties’ ability to pay and perform their respective
obligations under the Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit Agreement and the
HB Service Credit Agreement), and agrees to assume the responsibility for keeping, and to keep, so
informed for so long as the guaranty of each such ▇▇▇▇▇▇▇ Guarantor remains in effect. Each ▇▇▇▇▇▇▇
Guarantor agrees that the Bank shall have no obligation to investigate the financial condition or
affairs of ▇▇▇▇▇▇▇, ▇▇ Service or any of the Amendment Parties for the benefit of any ▇▇▇▇▇▇▇
Guarantor nor to advise any ▇▇▇▇▇▇▇ Guarantor of any fact respecting, or any change in, the
financial condition or affairs of ▇▇▇▇▇▇▇, ▇▇ Service or any of the Amendment Parties that might
become known to the Bank at any time, whether or not the Bank knows or believes or has reason to
know or believe that any such fact or change is unknown to any ▇▇▇▇▇▇▇ Guarantor, or might (or
does) materially increase the risk of any ▇▇▇▇▇▇▇ Guarantor as guarantor, or might (or would)
affect the willingness of any ▇▇▇▇▇▇▇ Guarantor to continue as a guarantor of the obligations of
▇▇▇▇▇▇▇ or HB Service, as the case may be, under the Credit Documents (as defined in each of the
▇▇▇▇▇▇▇ Credit Agreement and the HB Service Credit Agreement). These representations and agreements
by each of the ▇▇▇▇▇▇▇ Guarantors are made and delivered to induce the Bank to enter into this
Amendment and continue to extend credit to ▇▇▇▇▇▇▇, ▇▇ Service and the other Amendment Parties
under the Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit Agreement and the HB Service
Credit Agreement), and each of the ▇▇▇▇▇▇▇ Guarantors acknowledges that the Bank would not enter
into this Amendment and continue to extend such credit in the absence of the representations and
agreements contained herein.
ARTICLE IX
GENERAL
9.1 Full Force and Effect. This Amendment is limited as specified and, except as
specifically set forth herein, shall not constitute a modification, acceptance or waiver of any
other provision of any of the Credit Documents (as defined in each of the ▇▇▇▇▇▇▇ Credit
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Agreement and the HB Service Credit Agreement). Each of the ▇▇▇▇▇▇▇ Credit Agreement and the HB
Service Credit Agreement, as amended by the amendments set forth herein, shall continue to be in
full force and effect in accordance with the provisions thereof after giving effect to such
amendments. Any reference to the ▇▇▇▇▇▇▇ Credit Agreement in any of the Security Documents or other
Credit Documents (each as defined in the ▇▇▇▇▇▇▇ Credit Agreement) shall mean the ▇▇▇▇▇▇▇ Credit
Agreement as amended by the Amendment and as may be further amended, modified, restated, or
supplemented from time to time. Any reference to the HB Service Credit Agreement in any of the
Credit Documents (as defined in the HB Service Credit Agreement) shall mean the HB Service Credit
Agreement as amended by the Amendment and as may be further amended, modified, restated, or
supplemented from time to time. This Amendment shall be a Credit Document under (and as defined in)
each of the ▇▇▇▇▇▇▇ Credit Agreement and the HB Service Credit Agreement.
9.2 Applicable Law. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North Carolina.
9.3 Counterparts; Execution. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute but one instrument. The exchange of copies of this Amendment and of signature
pages by facsimile transmission shall constitute effective execution and delivery of this Amendment
and such copies may be used in lieu of the original Amendment for all purposes. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Amendment.
9.4 Expenses. Each of ▇▇▇▇▇▇▇ and HB Service, jointly and severally, agrees to pay on
demand all reasonable out-of-pocket expenses incurred by the Bank in connection with the
preparation, execution and delivery of this Amendment, including, without limitation, all
reasonable attorneys’ fees.
9.5 Further Assurances. Each of the Amendment Parties shall execute and deliver to the
Bank such documents, certificates, and opinions as the Bank may reasonably request to effect the
amendments contemplated by this Amendment and, with respect to the ▇▇▇▇▇▇▇ Credit Agreement, to
continue the existence, perfection and first priority of the Bank’s security interests in the
collateral securing the obligations under the Credit Documents (as defined in the ▇▇▇▇▇▇▇ Credit
Agreement).
9.6 Headings. The headings of this Amendment are for the purposes of reference only
and shall not affect the construction of this Amendment.
[The remainder of this page is left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment Agreement, Limited
Consent and Waiver to be executed and delivered by their duly
authorized officers all as of the date first above written.
| ▇▇▇▇▇▇▇ INTERNATIONAL, INC. | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
[Signature Pages Continued on the Following Page]
Signature Page to Omnibus Amendment Agreement, Limited Consent and Waiver
| ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION |
||||
| By: | /s/ Cavan ▇. ▇▇▇▇▇▇ | |||
| Cavan ▇. ▇▇▇▇▇▇ | ||||
| Senior Vice President | ||||
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| SUBSIDIARY GUARANTORS: | ||||||
| ▇▇▇▇▇▇▇ HYGIENE FRANCHISE CORP. | ||||||
| ▇▇▇▇▇▇▇ PEST CONTROL CORP. | ||||||
| ▇▇▇▇▇▇▇ MAIDS, INC. | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
| SHFC BUFFALO, LLC | ||||||
| SHFC MINNEAPOLIS, LLC | ||||||
| SHFC OKLAHOMA, LLC | ||||||
| SHFC OPERATIONS, LLC | ||||||
| SHFC ARIZONA, LLC | ||||||
| SHFC TEXAS, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
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| HB SERVICE AND ITS SUBSIDIARIES: | ||||||
| HB SERVICE, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
| SERVICE BALTIMORE, LLC SERVICE ▇▇▇▇▇▇▇ HILLS, LLC |
||||||
| SERVICE BIRMINGHAM, LLC | ||||||
| SERVICE CALIFORNIA, LLC | ||||||
| SERVICE CAROLINA, LLC | ||||||
| SERVICE CENTRAL FL, LLC | ||||||
| SERVICE CHARLOTTE LLC | ||||||
| SERVICE CHATTANOOGA, LLC | ||||||
| SERVICE CINCINNATI, LLC | ||||||
| SERVICE COLUMBIA, LLC | ||||||
| SERVICE COLUMBUS, LLC | ||||||
| SERVICE DC, LLC | ||||||
| SERVICE DENVER, LLC | ||||||
| SERVICE FCS, LLC | ||||||
| SERVICE FLORIDA, LLC | ||||||
| SERVICE FRESNO, LLC | ||||||
| SERVICE GAINESVILLE, LLC | ||||||
| SERVICE GOLD COAST, LLC | ||||||
| SERVICE GREENSBORO, LLC | ||||||
| SERVICE GREENVILLE, LLC | ||||||
| SERVICE GULF COAST, LLC | ||||||
| SERVICE HOUSTON, LLC | ||||||
| SERVICE INDIANAPOLIS, LLC | ||||||
| SERVICE LAS VEGAS, LLC | ||||||
| SERVICE LOUISVILLE, LLC | ||||||
| SERVICE MEMPHIS, LLC | ||||||
| SERVICE MIDATLANTIC, LLC | ||||||
| SERVICE MIDWEST, LLC | ||||||
| SERVICE NASHVILLE, LLC | ||||||
| SERVICE NEW ORLEANS, LLC | ||||||
| SERVICE NEW YORK, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| Title: Chief Financial Officer | ||||||
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| SERVICE NORTH, LLC | ||||||
| SERVICE NORTH-CENTRAL, LLC | ||||||
| SERVICE OKLAHOMA CITY, LLC | ||||||
| SERVICE PHILADELPHIA, LLC | ||||||
| SERVICE PHOENIX, LLC | ||||||
| SERVICE RALEIGH, LLC | ||||||
| SERVICE SALT LAKE CITY, LLC | ||||||
| SERVICE SEATTLE, LLC | ||||||
| SERVICE SOUTH, LLC | ||||||
| SERVICE ST. LOUIS, LLC | ||||||
| SERVICE TALLAHASSEE, LLC | ||||||
| SERVICE TAMPA, LLC | ||||||
| SERVICE TRI-CITIES, LLC | ||||||
| SERVICE VIRGINIA, LLC | ||||||
| SERVICE WEST COAST, LLC | ||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||
| Title: Chief Financial Officer | ||||||
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| /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| H. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
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EXHIBIT A
▇▇▇▇▇▇▇ SPECIFIED EVENTS OF DEFAULT
1. The failure to deliver the financial statements and other documents required to be delivered by
▇▇▇▇▇▇▇ under Sections 5.1(a) and 5.1(d) of the ▇▇▇▇▇▇▇ Credit Agreement for the fiscal quarter
ending September 30, 2010.
2. The failure of ▇▇▇▇▇▇▇ to comply with Sections 6.1, 6.2 and 6.3 of the ▇▇▇▇▇▇▇ Credit Agreement
for the fiscal quarters ending September 30, 2010.
EXHIBIT B
HB SERVICE SPECIFIED EVENTS OF DEFAULT
1. The failure to deliver the financial statements and other documents required to be delivered by
HB Service under Sections 5.1(a) and 5.1(d) of the HB Service Credit Agreement for the fiscal
quarter ending September 30, 2010.
2. The failure of HB Service to comply with Section 6.1 of the HB Service Credit Agreement
for the fiscal quarter ending September 30, 2010.