Exhibit 10.1


 


AMENDMENT NO. 3 AND CONSENT


 


THIS
AMENDMENT NO. 3 AND CONSENT, dated as of February 5, 2010 (this “Amendment”),
to that certain Credit Agreement referenced below is by and among MAC-GRAY
CORPORATION, a Delaware corporation (the “Parent Borrower”), MAC-GRAY
SERVICES, INC., a Delaware corporation (“MGS”), and INTIRION CORPORATION,
a Delaware corporation (“Intirion”; together with the Parent Borrower
and MGS, each a “Borrower” and collectively the “Borrowers”), the
Lenders party hereto and BANK OF AMERICA, N.A., as Administrative Agent and
Collateral Agent.  Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.


 


W I T N E S S E T H


 


WHEREAS,
a $170,000,000 revolving credit and term loan facility was established in favor
of the Borrowers pursuant to the terms of that certain Senior Secured Credit
Agreement dated as of April 1, 2008 (as amended and modified, the “Credit
Agreement”) among the Borrowers, the subsidiaries and affiliates identified
therein, as guarantors, the lenders identified therein, and Bank of America,
N.A., as administrative agent;


 


WHEREAS,
the Parent Borrower is selling Intirion (sale and rental of
mini-refrigerators/microwaves) for approximately $8,500,000 in cash (subject to
working capital adjustments), and has requested in connection therewith, among
other things, consent to the sale of the Equity Interests of Intirion and a
release of security interests in connection therewith;


 


WHEREAS,
the Parent Borrower is contemplating payout of a regular cash dividend to its
stockholders and has requested modifications to the Credit Agreement to (i) increase
the maximum amount of Restricted Payments permitted under Section 7.08(a) of
the Credit Agreement by $4,250,000 (constituting approximately 50% of the Net
Cash Proceeds from the sale of Intirion) and (ii) exclude, in the
aggregate, up to $4,250,000 of regular cash dividends from determination of
compliance with the Consolidated Cash Flow Coverage Ratio in Section 7.12(c) of
the Credit Agreement;


 


WHEREAS,
the Lenders have agreed to the requested consent and modifications on the terms
and conditions set forth herein;


 


1.             Consent.  The Parent Borrower is selling Intirion (sale
and rental of mini-refrigerator/microwaves) for approximately $8,500,000 in
cash (subject to working capital adjustments) (the “Intirion Sale”)
pursuant to the terms of that Stock Purchase Agreement dated as of February 5,
2010 between Mac-Gray Corporation and MF Acquisition Corp., as amended and
modified.  Section 7.05(g) of
the Credit Agreement provides that sales and dispositions in excess of
$5,000,000 require the consent of the Required Lenders.  Notwithstanding the provisions of Section 7.05(g) or
any other provision of the Credit Agreement, consent is hereby given to the
Intirion Sale, provided that 100% of the Net Cash Proceeds therefrom are
promptly used as a prepayment on Term Loan A.


 


2.             Amendments to the Credit
Agreement.  The Credit
Agreement is amended in the following respects:


 


2.1           In Section 1.01
(Definitions) the following terms are amended and/or added to read as follows:


 


“Consolidated Cash Flow” means, for any period for the
Consolidated Group, the difference of (a) Consolidated EBITDA minus
(b) the sum of (i) Capital Expenditures (other than Capital Lease
Obligations of up to an aggregate amount of $4,000,000 incurred in any such 


 


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period),
(ii) Prepaid Commission Expenses, (iii) consolidated cash income
taxes paid and (iv) Restricted Payments (other than the Excluded Dividend
Payment) paid, in each case on a consolidated basis in accordance with
GAAP.  Except as otherwise expressly
provided, the applicable period shall be the period of four consecutive fiscal
quarters ending as of the date of determination.


 


“Excluded Dividend Payment” means one or more dividend payments
by the Parent Borrower in an aggregate amount not to exceed $4,250,000.


 


2.2           Section 7.08(a) (Restricted
Payments) is amended to read as follows:


 


(a)           The Parent
Borrower will not, and will not permit any Subsidiary to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except (i) the
Subsidiaries may declare and pay dividends ratably with respect to their Equity
Interests, (ii) the Parent Borrower may declare and pay dividends with
respect to its common stock payable solely in additional shares of its common
stock, (iii) after completion of the Intirion Sale, the Excluded Dividend
Payment, so long as (A) the Parent Borrower reports the payment of any
portion of the Excluded Dividend Payment in the Compliance Certificate for the
period in which such dividend has been paid and (B) no Default or Event of
Default exists before or after giving effect thereto, (iv) the Parent
Borrower may make Restricted Payments (other than the Excluded Dividend
Payment) not exceeding $6,000,000 during any fiscal year, so long as no Default
or Event of Default exists before or after giving effect thereto, provided
that the total of all Restricted Payments (other than the Excluded Dividend
Payment) made since December 31, 2007 may not exceed the sum of (A) $6,000,000
plus (B) with respect to the period (treated as one accounting
period) from December 31, 2007 to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of any such Restricted
Payment, 50% of Consolidated Net Income in excess of $5,575,000 accrued during
such period (or, in case such Consolidated Net Income shall be a deficit, minus
100% of such deficit), provided that the amount under this clause (B) shall
not be less than zero.


 


3.             Conditions Precedent.  This Amendment shall be effective upon the
Administrative Agent’s receipt of each of the following:


 


(a)           duly executed
counterparts of this Amendment from the Borrowers, the Administrative Agent and
the Required Lenders;


 


(b)           a certificate of a secretary or assistant secretary
of each Borrower certifying that the resolutions of the board of directors of
such Borrower delivered at the closing of the Credit Agreement have not been
rescinded or modified and remain in full force and effect on the date hereof,
including an updated incumbency certificate with respect to each of the
Borrowers; and


 


(c)           payment, for the account of each Lender that
executes this Amendment, an amendment fee equal to ten basis points (0.10%) on
the aggregate amount of Commitments of such Lender as of the date hereof and (ii) all
other fees and costs required to be paid on or prior to effectiveness of this
Amendment, including without limitation, fees and costs of legal counsel to the
Administrative Agent, Moore & Van Allen, PLLC.


 


4.             Miscellaneous.


 


4.1           Authorization and Release.  Upon satisfaction of the conditions precedent
in Section 3 above and consummation of the Intirion Sale, the
Administrative Agent and/or the Collateral Agent, as applicable, are authorized
and directed to (a) release Intirion from its obligations and liabilities
as a “Borrower” under the Credit Agreement and the other Loan Documents, (b) release
Intirion from its 


 


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obligations
and liabilities as a “Guarantor” and “Grantor” under the Collateral Agreement
and the other Loan Documents, and to file releases or termination statements in
respect of UCC financing statements of record showing Intirion as “debtor”
therefor and in respect of filings or notices with the United Sates Patent and
Trademark Office showing Intirion as “grantor” thereof and to give releases in
respect of deposit account control agreements or other similar security
arrangements regarding deposit accounts of Intirion, (c) release the
shares of capital in Intirion (being certificate no. 60 registered to Mac-Gray
Corporation as owner evidencing 1,000 shares of common stock, as shown on
Schedule II to the Collateral Agreement) from the pledge under the Collateral
Agreement, (d) provide such releases and acknowledgments relating to the
foregoing as may be reasonably requested by the Parent Borrower or the buyer under
the agreement for the Intirion Sale and (e) take such other actions as
necessary or appropriate, in its judgment, in connection with the Intirion Sale
and the facilitation thereof.


 


4.2           Full Force and Effect.  Except as modified hereby, all of the terms
and provisions of the Credit Agreement and the other Loan Documents (including
schedules and exhibits) remain in full force and effect.


 


4.3           Affirmations
and Representations and Warranties of the Borrowers.  Each of the Borrowers hereby affirms,
represents and warrants (a) the representations and warranties set forth
in Article V of the Credit Agreement are true and correct as of the date
hereof (except those which expressly relate to an earlier period) and (b) no
Default or Event of Default exists as of the date hereof.


 


4.4           Affirmation of
Liens.  Each of the Borrowers hereby
affirms the liens and security interests created and granted in the Loan
Documents and agrees that this Amendment is not intended to adversely affect or
impair such liens and security interests in any manner.


 


4.5           Acknowledgment
of Obligations.  Each of the
Borrowers (a) acknowledges and consents to all of the terms and conditions
of this Amendment, (b) affirms such Borrower’s obligations under the Loan
Documents and (c) agrees that this Amendment does not operate to reduce or
discharge such Borrower’s obligations under the Loan Documents.


 


4.6           Fees and
Expenses.  The
Borrowers agree to pay all reasonable fees and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Moore & Van Allen, PLLC, counsel to the Administrative Agent.


 


4.7           Counterparts;
Delivery.  This
Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original and it shall not be
necessary in making proof of this Amendment to produce or account for more than
one such counterpart.  Delivery by any
party hereto of an executed counterpart of this Amendment by facsimile shall be
effective as such party’s original executed counterpart.


 


4.8           Amendment is a
Loan Document.  Each of the
parties hereto hereby agrees that this Amendment is a Loan Document.


 


4.9           Governing Law.  This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.


 


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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.


 


	
  BORROWERS:

  	
  MAC-GRAY CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael J. Shea

  
	
   

  	
  Name:

  	
  Michael
  J. Shea

  
	
   

  	
  Title:

  	
  Executive
  VP, Chief Financial Officer & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  MAC-GRAY SERVICES, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael J. Shea

  
	
   

  	
  Name:

  	
  Michael
  J. Shea

  
	
   

  	
  Title:

  	
  Executive
  VP, Chief Financial Officer & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  INTIRION CORPORATION,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael J. Shea

  
	
   

  	
  Name:

  	
  Michael
  J. Shea

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE AGENT:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Charlene Wright-Jones

  
	
   

  	
  Name:

  	
  Charlene
  Wright-Jones

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as L/C Issuer, Swingline Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher S. Allen

  
	
   

  	
  Name:

  	
  Christopher
  S. Allen

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  FIFTH THIRD BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Valerie Schanzer

  
	
   

  	
  Name:

  	
  Valerie
  Schanzer

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.T. Taylor

  
	
   

  	
  Name:

  	
  J.T. Taylor

  
	
   

  	
  Title:

  	
  Senior Vice President

  



 


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  WELLS FARGO BANK N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael W. Sweeney

  
	
   

  	
  Name:

  	
  Michael
  W. Sweeney

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  TD BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robin Zeller

  
	
   

  	
  Name:

  	
  Robin
  Zeller

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  EASTERN BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Moodie

  
	
   

  	
  Name:

  	
  Robert
  J. Moodie

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SOVEREIGN BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Angela Pecjo

  
	
   

  	
  Name:

  	
  Angela
  Pecjo

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLIED IRISH BANKS, p.l.c.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Reilly

  
	
   

  	
  Name:

  	
  Michael
  Reilly

  
	
   

  	
  Title:

  	
  Vice
  President.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. Wiske

  
	
   

  	
  Name:

  	
  Gregory
  J. Wiske

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  AIB DEBT MANAGEMENT LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Reilly

  
	
   

  	
  Name:

  	
  Michael
  Reilly

  
	
   

  	
  Title:

  	
  VP,
  Investment Advisor to AIB Debt Management, Limited

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George J. Wiske

  
	
   

  	
  Name:

  	
  George
  J. Wiske

  
	
   

  	
  Title:

  	
  AVP,
  Investment Advisor to AIB Debt Management, Limited

  
	
   

  	
   

  	
   

  
	
   

  	
  RBS CITIZENS, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher J. Wickles

  
	
   

  	
  Name:

  	
  Christopher
  J. Wickles

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


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  SUNTRUST BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William C. Hamphrise

  
	
   

  	
  Name:

  	
  William
  C. Hamphrise

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF THE WEST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Sidney Jordan

  
	
   

  	
  Name:

  	
  Sidney
  Jordan

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BROWN BROTHERS HARRIMAN & CO.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Barbara R. Flight

  
	
   

  	
  Name:

  	
  Barbara
  R. Flight

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  SALEM FIVE CENTS SAVINGS BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph V. Leary

  
	
   

  	
  Name:

  	
  Joseph
  V. Leary

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Manuel Burgueño

  
	
   

  	
  Name:

  	
  Manuel
  Burgueño

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  FIRSTRUST BANK

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ellen Frank

  
	
   

  	
  Name:

  	
  Ellen
  Frank

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


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