EXHIBIT 10(i)A(11)
OMNIBUS AMENDMENT
THIS OMNIBUS AMENDMENT (this "AMENDMENT"), dated as of August 31, 2001,
is by and among National Service Industries, Inc., a Delaware corporation
("NSI-DELAWARE"), NSI Enterprises, Inc., a California corporation ("NSI
ENTERPRISES"), National Service Industries, Inc., a Georgia corporation ("NSI
GEORGIA" and, together with NSI-Delaware and NSI Enterprises, the "EXISTING
COMPANIES"), L & C Spinco, Inc., a Delaware corporation ("SPINCO"), The Zep
Group, Inc., a Delaware corporation ("ZEP"), L & C Lighting Group, Inc., a
Delaware corporation ("L & C LIGHTING"), L & C Funding, Inc., a Delaware
corporation formerly known as NSI Funding, Inc. ("SPC" and, together with
Spinco, Zep and L & C Lighting, the "SUCCESSOR COMPANIES"), Blue Ridge Asset
Funding Corporation, a Delaware corporation ("BLUE RIDGE"), and Wachovia Bank,
N.A., individually ("WACHOVIA") and as agent (in such latter capacity, the
"AGENT"), and pertains to (a) that certain Receivables Sale Agreement, dated as
of May 2, 2001, by and between NSI Enterprises and NSI Georgia and collaterally
assigned first, to SPC and then, to the Agent (the "RSA"), (b) that certain
Receivables Sale and Contribution Agreement, dated as of May 2, 2001, by and
between NSI Georgia and SPC (the "RSCA"), (c) that certain Credit and Security
Agreement, dated as of May 2, 2001, by and among SPC, as Borrower, NSI Georgia,
as initial Servicer, Wachovia, as the sole initial Liquidity Bank, Blue Ridge
and the Agent (as heretofore amended, the "CSA"), and (d) that certain
Performance Undertaking dated as of May 2, 2001, by and between NSI-Delaware and
SPC and collaterally assigned to the Agent (the "PERFORMANCE UNDERTAKING" and,
together with the RSA, the RSCA and the CSA, the "SUBJECT AGREEMENTS").
Capitalized terms used and not otherwise defined herein shall have the meanings
attributed to them in the Subject Agreements.
W I T N E S S E T H :
WHEREAS, on the date hereof, the Existing Companies and
certain of their affiliates are engaging in a reorganization pursuant
to an Agreement and Plan of Distribution (the "REORGANIZATION");
WHEREAS, immediately following the Reorganization (the
"EFFECTIVE TIME"), certain of the parties to the Subject Agreements
will be replaced with certain of the parties hereto, all as more fully
provided herein; and
WHEREAS, some time after the Effective Time, NSI-Delaware will
distribute ratably to its shareholders, all of Spinco's outstanding
capital stock (the "DISTRIBUTION");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. NSI-Delaware. Effective from and after the Effective
Time, any and all references in any of the Subject Agreements to NSI-Delaware,
individually or as Performance
Guarantor, are hereby replaced with NSI-Delaware and Spinco, jointly and
severally. Effective immediately after the Distribution, any and all references
in any of the Subject Agreements to NSI-Delaware and Spinco, jointly and
severally, are hereby replaced with Spinco.
2. NSI Enterprises. Effective from and after the
Effective Time, any and all references in any of the Subject Agreements
(including, without limitation, references in provisions inserted by this
Amendment) to NSI Enterprises are hereby replaced with Zep.
3. NSI Georgia. Effective from and after the Effective
Time, any and all references in any of the Subject Agreements (including,
without limitation, references in provisions inserted by this Amendment) to NSI
Georgia are hereby replaced with L & C Lighting.
4. NSI Funding, Inc. Effective from and after the
Effective Time, any and all references in any of the Subject Agreements to "NSI
Funding, Inc." are hereby replaced with "L & C Funding, Inc."
5. Other Amendments. Effective from and after the
Effective Time:
(a) Exhibit II to each of the RSA and RSCA and
Exhibit III to the CSA are hereby amended and restated in their entirety to read
as set forth in Annex I to this Amendment,
(b) The definition of "RECEIVABLE" in the RSA is
hereby amended and restated in its entirety to read as follows:
"RECEIVABLE" means all indebtedness and other obligations owed
to NSI Enterprises (at the times it arises, and before giving effect to
any transfer or conveyance under the Agreement), including, without
limitation, any indebtedness, obligation or interest constituting an
account, chattel paper, instrument or general intangible, arising in
connection with the sale of goods or the rendering of services by NSI
Enterprises and further includes, without limitation, the obligation to
pay any Finance Charges with respect thereto (except that, for purposes
of this definition, Receivables generated from NSI Enterprises's "Selig
Chemical" operations shall not be considered "Receivables" for purposes
of this definition unless and until (i) the Obligors on the Receivables
originated by NSI Enterprises's "Selig Chemical" operations are
instructed to pay all Collections on such Receivables directly to a
Lock-Box or Collection Account in accordance with Section 8.2(b) of the
Credit and Security Agreement, and (ii) the Agent has expressly
consented in writing to such Receivables being considered as
"Receivables" for purposes of this definition). Indebtedness and other
rights and obligations arising from any one transaction, including,
without limitation, indebtedness and other rights and obligations
represented by an individual invoice, shall constitute a Receivable
separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction; PROVIDED,
FURTHER, that any indebtedness, rights or obligations referred to in
the immediately preceding sentence shall be a Receivable regardless or
whether the
account debtor or NSI Enterprises treats such indebtedness, rights or
obligations as a separate payment obligation.
(c) The definition of "RECEIVABLE" in the RSCA is hereby
amended and restated in its entirety to read as follows:
"RECEIVABLE" means (a) any "Receivable" under and as defined
in the First-Step Sale Agreement which is conveyed to NSI Georgia in
accordance with the terms thereof, or (b) all indebtedness and other
obligations owed to NSI Georgia (at the times it arises, and before
giving effect to any transfer or conveyance under the Agreement),
including, without limitation, any indebtedness, obligation or interest
constituting an account, chattel paper, instrument or general
intangible, arising in connection with the sale of goods or the
rendering of services by NSI Georgia's "Lithonia Lighting" division,
and further includes, without limitation, the obligation to pay any
Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including, without
limitation, indebtedness and other rights and obligations represented
by an individual invoice, shall constitute a Receivable separate from a
Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; PROVIDED, FURTHER, that
any indebtedness, rights or obligations referred to in the immediately
preceding sentence shall be a Receivable regardless or whether the
Obligor or NSI Georgia treats such indebtedness, rights or obligations
as a separate payment obligation.
6. Further Assurances. Each of the Existing Companies
and the Successor Companies agrees to execute and deliver to the Agent such UCC
financing statements and amendments thereto or other similar instruments or
documents as may be necessary to perfect the interests in the Receivables,
Related Security and other collateral purported to be conveyed under the RSA,
the RSCA and the CSA and agrees that the Agent may, to the fullest extent
permitted by applicable law, file any such financing statement or amendment
without the signature of such Existing Company or Successor Company, as the case
may be.
7. Notices. All notices and other communications to any
of the Successor Companies or to the SPC provided for under the Subject
Agreements shall be made in writing and shall be addressed to it at the address
set forth beneath its signature to this Amendment..
8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
GEORGIA.
9. CONSENT TO JURISDICTION. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW: (A) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
GEORGIA STATE COURT SITTING IN FULTON COUNTY, GEORGIA IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE SUBJECT AGREEMENTS,
OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND (B) EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM.
10. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AMENDMENT, THE SUBJECT AGREEMENTS OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER
11. Bankruptcy Petition. Each of the Existing Companies
and the Successor Companies hereby covenants and agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding senior
indebtedness owed by Blue Ridge, it will not institute against, or join any
other Person in instituting against, Blue Ridge any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
12. Miscellaneous. Each of the Subject Agreements, as
modified hereby, is hereby ratified and confirmed by the Successor Companies,
Wachovia, Blue Ridge and the Agent. Unless otherwise specified, references
herein to "SECTION" shall mean a reference to sections of this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed and delivered as of the date first above written.
NATIONAL SERVICE INDUSTRIES, INC., A
DELAWARE CORPORATION
By:
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Name:
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Title:
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NSI ENTERPRISES, INC., A CALIFORNIA
CORPORATION
By:
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Name:
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Title:
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NATIONAL SERVICE INDUSTRIES, INC., A
GEORGIA CORPORATION
By:
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Name:
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Title:
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L & C SPINCO, INC., A DELAWARE CORPORATION
By:
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Name:
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Title:
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ADDRESS FOR NOTICES:
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier: 404-853-1330
Telephone: 404-853-1368
THE ZEP GROUP, INC., A DELAWARE CORPORATION
By:
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Name:
-------------------------------------
Title:
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ADDRESS FOR NOTICES:
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier: 404-853-1330
Telephone: 404-853-1368
L & C LIGHTING GROUP, INC., A DELAWARE
CORPORATION
By:
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Name:
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Title:
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ADDRESS FOR NOTICES:
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier: 404-853-1330
Telephone: 404-853-1368
L & C FUNDING, INC., A DELAWARE
CORPORATION FORMERLY KNOWN AS NSI FUNDING,
INC.
By:
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Name:
-------------------------------------
Title:
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ADDRESS FOR NOTICES:
NSI Center
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Treasurer
Telecopier: 404-853-1330
Telephone: 404-853-1368
WACHOVIA BANK, N.A., INDIVIDUALLY AND AS
AGENT
By:
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Name:
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Title:
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BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, N.A., ITS
ATTORNEY-IN-FACT
By:
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Name:
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Title:
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ANNEX I TO OMNIBUS AMENDMENT
EXHIBIT II TO RSA
Chief Executive Office; Principal Place of Business; Locations of Records;
Federal Employer Identification Number; Other Names
CHIEF EXECUTIVE OFFICE:
1420 Peachtree Street
Atlanta, Georgia 30309
PRINCIPAL PLACE OF BUSINESS:
1420 Peachtree Street
Atlanta, Georgia 30309
LOCATIONS OF RECORDS:
1420 Peachtree Street
Atlanta, Georgia 30309
Highway 41 North
Emerson, Georgia 30137
1310 Seaboard Industrial Blvd.
Atlanta, Georgia 30318
FEDERAL EMPLOYER IDENTIFICATION NUMBER: 58-2633373
LEGAL, TRADE AND ASSUMED NAMES: Enforcer Products
National Chemical
Zep Aviation
Zep Manufacturing Company, Armor All
Products division
Selig Chemical Industries
Selig Industries
Zep Manufacturing Company
Zep Manufacturing Company of Canada
EXHIBIT II TO RSCA
Places of Business; Locations of Records;
Federal Employer Identification Number(s); Other Names
PLACES OF BUSINESS:
1420 Peachtree Street
Atlanta, Georgia 30309
LOCATIONS OF RECORDS:
1420 Peachtree Street
Atlanta, Georgia 30309
One Lithonia Way
Conyers, Georgia 30012
FEDERAL EMPLOYER IDENTIFICATION NUMBER: 58-2633371
LEGAL, TRADE AND ASSUMED NAMES:
Lithonia Lighting
Major Reflector
Holophane
Metal Optics
Austin Lighting Products
Antique Street Lamps
Peerless Lighting
Hydrel
EXHIBIT III TO CSA
PLACES OF BUSINESS OF THE LOAN PARTIES; LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
PLACES OF BUSINESS:
1420 Peachtree Street
Atlanta, Georgia 30309
LOCATIONS OF RECORDS:
1420 Peachtree Street
Atlanta, Georgia 30309
One Lithonia Way
Conyers, Georgia 30012
Highway 41 North
Emerson, Georgia 30137
1310 Seaboard Industrial Blvd.
Atlanta, Georgia 30318
FEDERAL EMPLOYER IDENTIFICATION NUMBER:
L&C Lighting: 58-2633371
The Zep Group: 58-2633373
Borrower: 58-2616706
PRIOR BORROWER LEGAL NAMES, BORROWER TRADE AND ASSUMED NAMES: None
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