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AMENDING AGREEMENT NO. 3
THIS IS AN AMENDING AGREEMENT made as of June 24, 1998 among XXXXXX
SERVICES CORP. as a borrower in Canada (the "CDN. BORROWER"), XXXXXX SERVICES
(DELAWARE), INC., as a borrower in the United States of America (the "U.S.
BORROWER") and CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent (the
"ADMINISTRATIVE AGENT") on behalf of itself, the Lenders, the Other Agents and
their respective Eligible Affiliates.
WHEREAS:
A. The Cdn. Borrower and the U.S. Borrower, as borrowers (the
"BORROWERS"), the Persons from time to time parties to such agreement
as lenders (the "LENDERS"), the Administrative Agent, as administrative
agent for the Lenders, Bankers Trust Company, as syndication agent,
Canadian Imperial Bank of Commerce and Bankers Trust Company, as
co-arrangers, and Dresdner Bank Canada and Dresdner Bank AG New York
Branch, as documentation agents, are parties to a credit agreement
dated as of August 11, 1997 as amended by amending agreements dated as
of October 31, 1997 and February 19, 1998 (collectively the "CREDIT
AGREEMENT").
B. The Borrowers are in default under the Credit Agreement and have
requested certain amendments to the Credit Agreement to permit the
Borrowers to effect the Disposition of Intsel Southwest Limited
Partnership and to obtain additional funds to finance certain short
term working capital requirements of the Restricted Parties.
C. The Lenders, subject to the terms and conditions set forth in this
amending agreement, have consented to the amendments to the Credit
Agreement effected by this amending agreement and have authorized the
Administrative Agent to execute and deliver this amending agreement to
the Borrowers on behalf of itself, the Lenders, the Other Agents and
their respective Eligible Affiliates.
NOW THEREFORE THIS AMENDING AGREEMENT WITNESSES that, in consideration
of the mutual covenants and agreements contained in this amending agreement and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the Borrowers and the Administrative Agent, on behalf of
itself, the Lenders, the Other Agents and their respective Eligible Affiliates,
agree as follows:
ARTICLE ONE
INTERPRETATION
SECTION 1.01 ONE AGREEMENT: This amending agreement amends the Credit Agreement.
This amending agreement and the Credit Agreement shall be read, interpreted,
construed and have effect as, and shall
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constitute, one agreement with the same effect as if the amendments made by this
amending agreement had been contained in the Credit Agreement as of the date of
this amending agreement.
SECTION 1.02 DEFINED TERMS: In this amending agreement, unless something in the
subject matter or context is inconsistent:
(a) terms defined in the description of the parties or in the
recitals have the respective meanings given to them in the
description or recitals, as applicable; and
(b) all other capitalized terms have the respective meanings given
to them in the Credit Agreement as amended by Article Two of
this amending agreement.
SECTION 1.03 HEADINGS: The headings of the Articles and Sections of this
amending agreement are inserted for convenience of reference only and shall not
affect the construction or interpretation of this amending agreement.
SECTION 1.04 REFERENCES: All references to Articles and Sections, unless
otherwise specified, are to Articles and Sections of the Credit Agreement.
ARTICLE TWO
AMENDMENTS
SECTION 2.01 DEFINITIONS: Section 2.01 of the Credit Agreement is amended by
adding the following definitions to such Section in the appropriate alphabetical
order:
"DISCLOSED MATTERS" shall mean (a) those matters disclosed to the
Lenders by KPMG Investigation and Security Inc. in its reports to the
Lenders, (b) those matters disclosed in note 3 and note 18 to the
December 31, 1997 audited annual financial statements of the Cdn.
Borrower attached to the May 15, 1998 Form 10-K/A filed by the Cdn.
Borrower with the United States Securities and Exchange Commission, and
(c) the default by Xxxxxx Enterprises Inc. in payment of amounts in
aggregate in excess of U.S. $10,000,000 owed to CIBC Trust Company
relative to an inventory monetization program as disclosed in a letter
to the Administrative Agent from the Cdn. Borrower.
"INSOLVENCY EVENTS OF DEFAULT" shall mean those Events of Default
described in subsections 9.01(i), (j), (k), (l) and (m) and "INSOLVENCY
EVENT OF DEFAULT" shall mean any one of the Insolvency Events of
Default.
"INTSEL PURCHASE AND SALE AGREEMENT" shall mean the stock purchase
agreement dated as of June 24, 1998 between Metals USA, Inc., as buyer,
Xxxxxx Metals (USA) Inc., as seller, Xxxxxx Services Corp. and Xxxxxx
Enterprises Inc. setting forth the agreement of such parties with
respect to the Intsel Sale.
"INTSEL SALE" shall mean the sale by Xxxxxx Metals (USA) Inc. to
Metals USA, Inc. of all of the shares of each of Xxxxxx Metals
(Delaware) Inc. and PEN Metals (Delaware) Inc. (which corporations
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constitute all of the partners of Intsel Southwest Limited Partnership)
in accordance with the terms and provisions of the Intsel Purchase and
Sale Agreement.
"INTSEL SALE CLOSING DATE" shall mean the date of the closing of the
Intsel Sale.
"INTSEL SALE PROCEEDS" shall mean the aggregate purchase price payable
by Metals USA, Inc. under the Intsel Purchase and Sale Agreement net of
any bona fide direct costs incurred by Xxxxxx Metals (USA) Inc. in
completing the closing of the Intsel Sale.
"INTSEL SALE PROCEEDS DISTRIBUTION AMOUNT" shall mean that portion of
the Intsel Sale Proceeds equal to the amount by which (a) the Intsel
Sale Proceeds exceeds (b) the Intsel Sale Proceeds Retention Amount.
"INTSEL SALE PROCEEDS RETENTION AMOUNT" shall mean U.S. $60,000,000 of
the Intsel Sale Proceeds.
"PERMITTED LC FACILITY" shall have the meaning specified in paragraph
8.02(a)(ix).
"PERMITTED LC FACILITY CASH COLLATERAL SECURITY" shall have the
meaning specified in paragraph (z) of Schedule 6.
"RELEASE DATES" shall have the meaning specified in Section 6.07 and
"RELEASE DATE" shall mean any one of the Release Dates.
"RELEASE TERMINATION DATE" shall mean the first date on which any of
the following occurs:
(a) an Insolvency Event of Default;
(b) the Administrative Agent having received written
notice from the Required Lenders that an event has
occurred, or a circumstance exists, which event or
circumstance, in the opinion of such Lenders, (i) was
not known by such Lenders on June 24, 1998, and (ii)
has had, or has had or would have a reasonable
likelihood of having, a Material Adverse Effect; or
(c) the Commitments being cancelled pursuant to the
provisions of Section 9.02.
SECTION 2.02 REDUCTION IN LIMIT OF THE CREDIT: Effective as of June 24, 1998 the
limit of the Credit was permanently reduced by U.S. $300,000,000 from U.S.
$1,500,000,000 to U.S. $1,200,000,000 with such reduction in the limit of the
Credit to be apportioned among the Tranches and within the Tranches as
instructed by the Required Lenders. Such U.S. $300,000,000 reduction in the
limit of the Credit will be allocated, effective immediately following the
allocation and application of the Intsel Sale Proceeds Distribution Amount to
repayment of outstanding Accommodation in accordance with Section 4.07, to each
Lender's Commitment under each of the Tranches in the amounts indicated in
Exhibit A to this amending agreement so that, immediately after such allocation
on such date, the amount of each Lender's Commitment under each Tranche will be
the amount indicated in Exhibit A to this amending agreement.
SECTION 2.03 INTEREST ON LOANS: Section 3.01 of the Credit Agreement is amended
by changing the words "...
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The Applicable Interest Pricing Adjustment ..." in the twelfth and fourteenth
lines of such Section to read "... Subject to the last sentence of this Section,
the Applicable Interest Pricing Adjustment ...", and by adding the following
sentence at the end of such Section:
"Notwithstanding any other provision of this Section, from and after
July 15, 1998 the Applicable Interest Pricing Adjustment under this
Section for Prime Rate Loans, U.S. Base Rate Loans and U.S. Reference
Rate Loans will be 175 bps and the Applicable Interest Pricing
Adjustment under this Section for LIBOR Loans will be 275 bps."
SECTION 2.04 FEES FOR BANKERS' ACCEPTANCES AND BA EQUIVALENT NOTES: Section 3.09
of the Credit Agreement is amended by changing the words "... The Applicable
Stamping Fee ..." in the eighth, ninth and tenth lines of such Section to read
"... Subject to the last sentence of this Section, the Applicable Stamping Fee
...", and by adding the following sentence at the end of such Section:
"Notwithstanding any other provision of this Section, from and after
July 15, 1998 the Applicable Stamping Fee will be 275 bps."
SECTION 2.05 FEES FOR LETTERS OF CREDIT: Section 3.10 of the Credit Agreement is
amended by changing the words "... The Applicable LC Fee Pricing Rate ..." in
the fourteenth, fifteenth and sixteenth lines of such Section to read "...
Subject to the last sentence of this Section, the Applicable LC Fee Pricing Rate
...", and by adding the following sentence at the end of such Section:
"Notwithstanding any other provision of this Section, from and after
July 15, 1998 the Applicable LC Fee Pricing Rate will be 275 bps."
SECTION 2.06 STANDBY FEE: Section 3.11 of the Credit Agreement is amended by
changing the words "... The Applicable Standby Fee Pricing Rate ..." in the
seventh line of such Section to read "... Subject to the last sentence of this
Section, the Applicable Standby Fee Pricing Rate ...", and by adding the
following sentence at the end of such Section:
"Notwithstanding any other provision of this Section, from and after
July 15, 1998 the Applicable Standby Fee Pricing Rate will be 145 bps."
SECTION 2.07 REPAYMENTS: Article Four of the Credit Agreement is amended by
adding the following Section at the end of such Article:
"4.07 REPAYMENTS FROM INTSEL SALE PROCEEDS
The Borrowers shall pay to the Administrative Agent on the
Intsel Sale Closing Date an amount equal to the Intsel Sale Proceeds
Distribution Amount and:
(a) first, such amount shall be allocated by the
Administrative Agent to each of the Tranches (that is
to each of Tranches 1, 2 and 3, the LC Line and each
of the Operating Lines) on a pro rata basis (with the
amount to be allocated to each such Tranche (with
respect to each Tranche, its "ALLOCATED AMOUNT")
being an amount equal to the Intsel Sale Proceeds
Distribution Amount multiplied by a
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fraction (x) the numerator of which is aggregate principal
amount of Accommodation outstanding under such Tranche at
the time of such allocation, and (y) the denominator of
which is the aggregate principal amount of Accommodation
outstanding under all of the Tranches at the time of such
allocation); and
(b) then immediately following the allocation referred to
in subsection 4.07(a):
(i) the Allocated Amount for each of Tranches 1,
2, and 3, shall be applied to repay
outstanding Accommodation under such Tranche
so that, to the extent possible, immediately
after such repayment, the principal amount
of outstanding Accommodation from each
Lender under such Tranche is pro rata (based
on the respective Commitments of each of the
Lenders under such Tranche) with the
principal amount of outstanding
Accommodation from all of the Lenders under
such Tranche; and
(ii) immediately following the repayment referred
to in paragraph 4.07(b)(i), the balance of
the Allocated Amount for each of Tranches 1,
2, and 3, if any, shall be applied to repay
outstanding Accommodation under such Tranche
from all of the Lenders under such Tranche
pro rata (based on the principal amount of
Accommodation then outstanding from each
Lender under such Tranche); and
(iii) the Allocated Amount for the LC Line and
each of the Operating Lines shall be applied
to the repayment of outstanding
Accommodation from all of the Lenders under
such Tranche pro rata (based on the
principal amount of Accommodation then
outstanding from each Lender under such
Tranche) (and which repayment, for greater
certainty, would include depositing funds
with the Cdn. LC Issuer pursuant to the LC
Line repayment mechanism referred to in
Section 5.06)."
SECTION 2.08 MANNER OF REPAYMENT UNDER THE LC LINE: Article Five of the Credit
Agreement is amended by adding the following Section at the end of such Article:
"5.06 CERTAIN REPAYMENTS UNDER THE LC LINE
Any amount to be applied to repayment of outstanding Letters
of Credit under the LC Line (as opposed to outstanding Loans or
reimbursement obligations under the LC Line) will be paid to the Cdn.
LC Issuer and such amount (together with interest on such amount) shall
be held by the Cdn. LC Issuer to be applied in payment of the liability
of the Borrowers pursuant to subsection 2.06(3) or otherwise in respect
of outstanding Letters of Credit so long as the LC Issuers or either of
them has or may in any circumstance have any liability under any Letter
of Credit or Letters of Credit in an aggregate amount equal to or
greater than such repayment
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amount, and shall bear interest for such terms as are selected from
time to time by the Cdn. LC Issuer at the wholesale money market rate
of the Cdn. LC Issuer for deposits of similar currency, amounts and
maturities. Any balance of such funds and interest remaining at such
time as the LC Issuers do not have any actual or contingent liability
under any Letter of Credit shall be paid to the Administrative Agent
to be paid to the Lenders in accordance with Section 9.03 or in such
other manner as the Required Lenders may direct. In addition, at any
time that a Letter of Credit expires or is cancelled, such portion of
such funds, if any, which are in excess of the maximum aggregate
liability of the LC Issuers under all remaining outstanding Letters of
Credit shall be paid to the Administrative Agent to be paid to the
Lenders in accordance with Section 9.03 or in such other manner as the
Required Lenders may direct."
SECTION 2.09 SECURITY: Article Six of the Credit Agreement is amended by adding
the following Sections at the end of such Article:
"6.07 INTSEL SALE PROCEEDS
The Borrowers will insure that the entire Intsel Sale Proceeds
are delivered directly by Metals USA, Inc. to the Administrative Agent
for the account of the Administrative Agent and the Lenders on the
Intsel Sale Closing Date. The Administrative Agent will place that
portion of such Intsel Sales Proceeds equal to the Intsel Sale Proceeds
Retention Amount in an account maintained by and titled in the
Administrative Agent for the benefit of the Administrative Agent and
the Lenders under conditions that such amount will be held and dealt
with by the Administrative Agent in accordance with the provisions of
this Section. The Administrative Agent will pay and apply the balance
of such Intsel Sale Proceeds (namely the Intsel Sale Proceeds
Distribution Amount) in the manner provided for in Section 4.07. While
held by the Administrative Agent in the above referenced account, title
to the Intsel Sale Proceeds Retention Amount, and interest thereon,
will remain with the Administrative Agent for the benefit of the
Administrative Agent and the Lenders and the interest of the Borrowers
and any other Restricted Parties, if any, in and to the Intsel Sale
Proceeds Retention Amount and interest thereon will be subject to the
Lien of the Security and to all of the rights and remedies set forth in
the Security. Unless and until the Release Termination Date has
occurred, and subject to fulfilment of the conditions precedent
referred to in Section 6.08, the Administrative Agent will release from
the above referenced account, and will deliver to or as directed by the
Borrowers, on each of the dates specified in Schedule 28 (the "RELEASE
DATES"), that portion of the Intsel Sale Proceeds Retention Amount then
remaining in such account equal to the amount (the "RELEASED AMOUNT")
set forth in Schedule 28 with respect to such Release Date. On, but not
before, delivery of any Released Amount to the Borrowers, title to such
Released Amount will pass from the Administrative Agent to the
Borrowers. All Released Amounts shall only be used by the Borrowers for
those purposes set forth in Schedule 28 with respect to such applicable
Released Amount. For greater certainty, from and after the Release
Termination Date, no Restricted Party shall be entitled to receive any
further amounts still held in the above referenced account all of which
amounts shall be retained by and titled in the Administrative Agent
and, to the extent of the interest of the Borrowers and any other
Restricted Parties, shall continue to be subject to the Security and,
on request of the Required Lenders, shall be paid by the Administrative
Agent to the Lenders in the manner provided for in Section 4.07.
6.08 CONDITIONS PRECEDENT TO RELEASE OF PROCEEDS
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The Administrative Agent shall not be obliged to release any
portion of the Intsel Sales Proceeds Retention Amount to the Borrowers
under Section 6.07 unless all of the following have occurred and/or are
true:
(a) all of the outstanding accounts of Blake, Xxxxxxx &
Xxxxxxx (and their agents), White & Case (and their
agents), KPMG Investigation and Security Inc. and
KPMG Chartered Accountants have been paid at or prior
to the date of such release of such Released Amount
(or are paid from the proceeds of such Released
Amount);
(b) the escrow account referred to in subsection 8.01(ab)
has been established, the initial U.S. $250,000
contribution has been made (or is made from the
proceeds of such Released Amount) to such account and
any subsequent contributions required to have been
made to such account prior to such Release Date
pursuant to the provisions of subsection 8.01(ac)
have been made or are made from the proceeds of such
Released Amount;
(c) the Administrative Agent shall have received with
respect to such Released Amount a certificate of the
Cdn. Borrower signed by its President and Chief
Executive Officer:
(i) detailing the purposes for which such
Released Amount will be used; and
(ii) certifying that (except for financial
assurances provided by the Restricted Parties
to Governmental Authorities or to bonding or
insurance companies in the ordinary course of
business for the purpose of carrying on the
same) no funds, securities or other property
is being held under any trust or other
arrangement by any Person on behalf of or for
the benefit of (x) the Restricted Parties or
any of their Subsidiaries or (y) any of the
advisors or agents of the Restricted Parties
acting on behalf of or for the benefit of any
of the Restricted Parities or any of their
Subsidiaries or (z) any of the officers or
directors of any of the Restricted Parties or
any of their Subsidiaries; and
(d) the Release Termination Date shall not have occurred
on or prior to the applicable Release Date.
6.09 POSTPONEMENT OF LIEN OF SECURITY IN PERMITTED XX XXXX
COLLATERAL SECURITY
The Lien of the Security in the cash collateral constituting
the Permitted LC Facility Cash Collateral Security will be subordinate
to the prior rights of the issuer of the standby letters of credit
under the Permitted LC Facility to such cash collateral as security for
the liabilities of the Cdn. Borrower with respect to such standby
letters of credit, and the Administrative Agent will execute and
deliver such acknowledgements and agreements of postponement and
subordination relative to the Permitted LC Facility Cash Collateral
Security as may be necessary or desirable in the opinion of the
Administrative Agent to evidence such subordination."
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SECTION 2.10 POSITIVE COVENANTS: Section 8.01 of the Credit Agreement is amended
by renumbering subsection 8.01(aa) as subsection 8.01(y) and by adding the
following subsections at the end of such Section:
"(z) Monthly Financial Statements. With respect to each month
beginning with the month of July 1998, deliver to the
Administrative Agent, on or before the 30th day following the
end of such month where such month is not the last month of a
Financial Quarter, and on or before the 45th day following the
last day of such month where such month is the last month of a
Financial Quarter, the unaudited monthly consolidated balance
sheet, and the unaudited monthly consolidating balance sheets,
of the Restricted Parties as of the last day of such month
together with the related unaudited consolidated statement,
and unaudited consolidating statements, of earnings, changes
in financial position and shareholders' equity of the
Restricted Parties for such month.
(aa) Rolling 13 Week Cash Flows. Deliver to the Administrative
Agent by the Wednesday of every other week (the "SUBJECT
WEEK"), beginning with Wednesday July 15, 1998 for the Subject
Week beginning Monday July 13, 1998, a weekly cash flow
summary and cash flow projection in the form presented by the
Cdn. Borrower to the Lenders at the June 17, 1998 Lenders'
meeting for the 13 week period which commences with and
includes the Subject Week.
(ab) Establishment of Escrow Account for Advisors' Fees and
Disbursements. Immediately deliver to Blake, Xxxxxxx & Xxxxxxx
U.S. $250,000 to be held by Blake, Xxxxxxx & Xxxxxxx in an
interest bearing trust account on terms which will permit
Blake, Xxxxxxx & Xxxxxxx to pay funds out of such account at
the direction of the Administrative Agent to pay outstanding
fees and disbursements of the advisors to the Administrative
Agent and the Lenders and the agents of such advisors or to
finance disbursements (such as registration or filing fees) to
be incurred by any of the advisors to the Administrative Agent
and the Lenders or the agents of such advisors in the
performance of their services for the Administrative Agent and
the Lenders.
(ac) Replenishing Escrow Account for Advisors' Fees and
Disbursements. Immediately following receipt, at any time and
from time to time, of notice from Blake, Xxxxxxx & Xxxxxxx
that the amount in the escrow account referred to in
subsection 8.01(ab) is equal to or less than U.S. $50,000,
deliver to Blake, Xxxxxxx & Xxxxxxx for deposit in such escrow
account sufficient funds to increase the amount in such escrow
account to U.S. $250,000."
SECTION 2.11 NEGATIVE COVENANTS - DEBT: Subsection 8.02(a) of the Credit
Agreement is amended by deleting the word "and" at the end of paragraph
8.02(a)(vii), changing the "." at the end of paragraph 8.02(a)(viii) to read ";
and", and adding the following paragraph at the end of such subsection:
"(ix) standby letters of credit in an aggregate amount of not more
than U.S. $20,000,000 issued for the account of the Cdn.
Borrower (to provide credit support to suppliers of the North
American metals business of the Restricted Parties) by a
Person who is a Lender pursuant to a standby letter of credit
facility (the "PERMITTED LC FACILITY") established outside of
this Agreement, provided that the debts and
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liabilities of the Cdn. Borrower under such standby letter of
credit facility are unsecured except for the Permitted LC
Facility Cash Collateral Security."
SECTION 2.12 STANDSTILL RESPECTING CERTAIN ACTIVITIES: Section 8.02 of the
Credit Agreement is amended by adding the following subsection at the end of
such Section:
"(v) Additional Standstill Respecting Certain Activities.
Notwithstanding any other provision of this Agreement, at any
time between June 24, 1998 and September 30, 1998, without the
prior written consent of the Required Lenders, take any action
which would create any material liability, involve a
Disposition of property (other than Dispositions approved by
the Required Lenders (including the Intsel Sale) or ordinary
course Dispositions of inventory or obsolete or worn out
equipment made in compliance with the provisions of paragraph
8.02(d)(i)) or involve the creation of any Lien (other than
the Permitted Liens referred to in paragraphs (y) and (z) of
Schedule 6), and in particular and without limitation each of
the Borrowers agrees not to, and to cause each of the other
Restricted Parties not to, directly or indirectly:
(i) create, incur, assume or suffer or permit to
exist any new or additional Debt under any
existing Purchase Money Obligation or
Capitalized Lease Obligation or create,
incur, assume or suffer or permit to exist
any new or additional Purchase Money
Obligation or Capitalized Lease Obligation;
(ii) create, incur, assume or suffer or permit to
exist any new or additional Debt under any
existing operating leases or enter into any
new or additional material operating leases
other than motor vehicle and equipment
operating leases entered into by the
applicable Restricted Party in the ordinary
course of business for the purpose of
carrying on the same and on fair and
reasonable terms in accordance with
customary trade practice;
(iii) create, incur, assume or suffer or permit to
exist any new or additional Permitted
Indebtedness or create, incur, assume or
suffer or permit to exist any new or
additional Additional Debt;
(iv) enter into any transaction of amalgamation
or consolidation or merger or implement or
effect or consent to any reorganization or
liquidate, wind-up or dissolve itself (or
suffer any liquidation, winding-up or
dissolution or any proceedings therefor) or
continue itself under the laws of any other
statute or jurisdiction or effect any name
change;
(v) make any Disposition (which would include
any further securitizations or monetizations
that would otherwise have been permitted
under paragraph 8.02(d)(iv)) other than
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Dispositions permitted under paragraph
8.02(d)(i) and other than the Intsel Sale;
(vi) make any new or additional Investments in or
provide any new or additional Financial
Assistance to any Person which is not a
Wholly Owned Restricted Party which has
provided and perfected all Security required
to be provided by it under this Agreement or
any other Credit Document (the Cdn. Borrower
acknowledging that none of the Restricted
Parties in the United Kingdom have provided
the Security required to be provided by them
under this Agreement);
(vii) effect any new or additional sale and
leaseback transactions (including any
further sales to National City Leasing
Corporation which would otherwise have been
permitted under paragraph 8.02(s)(iii));
(viii) make any Acquisition (other than the
completion of acquisitions of real property
to which the Restricted Parties are
committed as of June 24, 1998 for an
aggregate purchase price for all such
acquisitions of not more than U.S.
$3,200,000); or
(ix) make any payment (a) of any dividends on any
shares of the Cdn. Borrower, (b) on account
of, or for the purpose of setting apart any
property for a sinking or other analogous
fund for, the purchase, redemption,
retirement or other acquisition of any
shares of any Restricted Party or any
warrants, options or rights to acquire any
such shares, or the making by any Restricted
Party of any other distribution in respect
of any shares of its capital, or (c) of any
principal of or interest or premium on or of
any amount in respect of a sinking or
analogous fund or defeasance fund for any
indebtedness or liability of any Restricted
Party ranking in right of payment
subordinate to any liability of such Person
under the Credit Documents."
SECTION 2.13 SCHEDULES: Schedule 6 (Permitted Liens) is amended by adding the
following paragraphs at the end of such Schedule:
"(y) Liens granted by a Restricted Party to secure its obligations
under an indemnity agreement provided by such Restricted Party
to a bonding or insurance company provided that (i) such
indemnity agreement imposes liability on such Restricted Party
only to the extent of payments made by such bonding or
insurance company under a bid bond or performance bond issued
by such bonding or insurance company in support of such
Restricted Party's bid for, or performance under, an
industrial services contract (a "BONDED CONTRACT") which such
Restricted Party is bidding for or has entered into in the
ordinary course of its business, (ii) such indemnity agreement
and the Lien granted in support thereof are on ordinary
commercial terms consistent with those entered into by other
Persons in the same
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or similar businesses as those of the applicable Restricted
Party, (iii) such Lien does not secure any indebtedness or
liabilities of any Restricted Party other than the
indebtedness and liabilities arising under the applicable
indemnity agreement in connection with the applicable Bonded
Contract, (iv) such Lien only creates a Lien in, and does not
extend to any property other than, the applicable Bonded
Contract, amounts payable under the Bonded Contract or from
subcontractors under the Bonded Contract and equipment and
materials located on the site where the work is to be
performed under the applicable Bonded Contract, (v) the
property subject to such Lien is subject to a valid perfected
Lien under the Security and the Restricted Party providing
such Lien has executed and delivered all Security required to
be executed and delivered by it under the Credit Agreement,
and (vi) such Lien has been fully postponed and subordinated
to the Lien of the Security pursuant to a written postponement
and subordination agreement in form, scope and substance
satisfactory to the Administrative Agent.
(z) cash collateral security given to the issuer of the letters of
credit under the Permitted LC Facility provided that (i) the
aggregate amount of such cash collateral security shall not
exceed U.S. $20,000,000 (together with interest accrued
thereon), (ii) such cash collateral security will only secure
the debts and liabilities of the Cdn. Borrower to the issuer
of such letters of credit with respect to such letters of
credit, (iii) such cash collateral security will be funded
solely from the proceeds of Released Amounts released to the
Borrowers for such purpose pursuant to Section 6.07, and (iv)
the cash collateral held as such cash collateral security
shall be subject to the Lien of the Security subject only to
the Lien of the issuer of the letters of credit in such cash
collateral security (such cash collateral security being the
"PERMITTED LC FACILITY CASH COLLATERAL SECURITY")."
and Exhibit B to this amending agreement is added as Schedule 28 to the Credit
Agreement.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 CONFIRMATION OF REPRESENTATIONS: Each of the Borrowers represents
and warrants that, as at the date of this amending agreement and assuming that
the amendments made to the Credit Agreement by this amending agreement have
become effective, no Insolvency Event of Default has occurred and is continuing
and, subject to the Disclosed Matters, the representations and warranties
contained in Article Seven of the Credit Agreement are true and correct.
ARTICLE FOUR
GENERAL
SECTION 4.01 CONFIRMATION: The Credit Agreement, as amended by this amending
agreement, is hereby confirmed by the Borrowers and the Administrative Agent, on
behalf of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates.
12
SECTION 4.02 BINDING NATURE: This amending agreement shall enure to the benefit
of and be binding upon the Borrowers, the Administrative Agent, the Lenders, the
Other Agents, their respective Eligible Affiliates and their respective
successors and permitted assigns.
SECTION 4.03 CONFLICTS: If, after the date of this amending agreement, any
provision of this amending agreement is inconsistent with any provision of the
Credit Agreement, the relevant provision of this amending agreement shall
prevail.
SECTION 4.04 ACKNOWLEDGEMENT AND NO WAIVERS: The Borrowers acknowledge that
Defaults have occurred and are continuing under the Credit Agreement including,
without limitation, (a) an Event of Default under subsection 9.01(c) of the
Credit Agreement because the Cdn. Borrower is not in compliance with the
Interest Coverage Ratio requirements of subsection 8.03(a) of the Credit
Agreement, and (b) an Event of Default under subsection 9.01(g) of the Credit
Agreement because of the default by Xxxxxx Enterprises Inc. in payment of
amounts in aggregate in excess of U.S. $10,000,000 owed to CIBC Trust Company
relative to an inventory monetization program. Nothing in this amending
agreement waives or shall be deemed to waive any Default or Event of Default or
any right, entitlement, privilege, benefit or remedy which the Administrative
Agent, the Other Agents or the Lenders may have now or at any time in the future
as a result of or in connection with any such Default or Event of Default.
SECTION 4.05 LAW OF CONTRACT: This amending agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario and of the laws
of Canada applicable in the Province of Ontario.
SECTION 4.06 COUNTERPART AND FACSIMILE: This amending agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
Delivery of an executed signature page to this amending agreement by any party
by facsimile transmission shall be as effective as delivery of a manually
executed copy of this amending agreement by such party.
IN WITNESS OF WHICH the Borrowers and the Administrative Agent, on
behalf of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates, have executed this amending agreement as of the date indicated on
the first page of this amending agreement.
XXXXXX SERVICES
XXXXXX SERVICES CORP. (DELAWARE), INC.
by: by:
name: name:
title: title:
by: by:
13
name: name:
title: title:
CANADIAN IMPERIAL BANK OF
COMMERCE (in its capacity
as Administrative Agent)
by:
name:
title:
by:
name:
title:
ACKNOWLEDGEMENT AND CONFIRMATION
Each of the undersigned consents to the above referenced amendments to
the Credit Agreement and to the Borrowers, the Administrative Agent (on behalf
of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates) entering into this amending agreement and acknowledges and agrees
that all of the guarantees and security delivered by it to or for the benefit of
any one or more of the Administrative Agent and the Lenders (including any such
guarantees and security delivered by it to Canadian Imperial Bank of Commerce as
security agent) in connection with, or otherwise applicable to, the debts and
liabilities of itself or either one or both of the Borrowers to any one or more
of the Administrative Agent, the Lenders, the Other Agents and their respective
Eligible Affiliates under, in connection with or with respect to any one or more
of the Credit Agreement, the other Credit Documents and the Lender/Borrower
Hedging Arrangements are hereby ratified and confirmed and remain in full force
and effect notwithstanding the entering into of this amending agreement by the
Borrowers, the Administrative Agent (on behalf of itself, the Lenders, the Other
Agents and their respective Eligible Affiliates) and notwithstanding the
amendments to the Credit Agreement effected by this amending agreement.
This acknowledgement and confirmation may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument. Delivery of an executed
signature page to this acknowledgement and confirmation by any party by
facsimile transmission shall be as effective as delivery of a manually executed
copy of this acknowledgement and confirmation by such party.
14
IN WITNESS OF WHICH each of the undersigned have executed this
acknowledgement and confirmation as of the date referred to on the first page of
this amending agreement.
LUNTZ CORPORATION
LUNTZ ACQUISITION (DELAWARE) CORPORATION
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC.
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF NEVADA
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF PUERTO
RICO
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF RHODE
ISLAND
CHEMICAL POLLUTION CONTROL, INC. OF FLORIDA - A 21ST
CENTURY ENVIRONMENTAL MANAGEMENT COMPANY
CHEMICAL POLLUTION CONTROL, INC. OF NEW YORK - A 21ST
CENTURY ENVIRONMENTAL MANAGEMENT COMPANY
NORTHLAND ENVIRONMENTAL, INC.
RESI ACQUISITION (DELAWARE) CORPORATION
CHEM-FREIGHT, INC.
REPUBLIC ENVIRONMENTAL RECYCLING (NEW JERSEY), INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (PENNSYLVANIA), INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (TECHNICAL SERVICES
GROUP), INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (TRANSPORTATION
GROUP), INC.
XXXXXX ENTERPRISES INC./LES ENTREPRISES XXXXXX INC.
XXXXXX ANALYTICAL SERVICES CORPORATION
XXXXXX ENVIRONMENTAL (ATLANTIC) LIMITED
XXXXXX ENVIRONMENTAL (ELMIRA) INC.
15
XXXXXX ENVIRONMENTAL SERVICES LIMITED
XXXXXX INVESTMENT CORP.
PSC/IML ACQUISITION CORP.
RECYCLAGE D'ALUMINIUM QUEBEC INC./QUEBEC ALUMINUM
RECYCLING INC.
1195613 ONTARIO INC.
1233793 ONTARIO INC.
842578 ONTARIO LIMITED
COUSINS WASTE CONTROL CORPORATION
D & L, INC.
INTERMETCO U.S., INC.
BUTCO, INC.
ALLTIFT, INC.
INTERMETCO U.S.A. LTD.
GEORGIA TUBULAR PRODUCTS, INC.
NORTRU, INC.
ALLWORTH, INC.
CHEMICAL RECLAMATION SERVICES, INC.
XXXXXX RECLAMATION SERVICES, HOUSTON, INC.
SOUTHEAST ENVIRONMENTAL SERVICES COMPANY, INC.
CYANOKEM INC.
RHO-CHEM CORPORATION
XXXXX, X.X. DE C.V.
16
THERMALKEM INC.
PEN METALS (DELAWARE), INC.
XXXXXX ENVIRONMENTAL OF IDAHO CORPORATION
XXXXXX ENVIRONMENTAL (WASHINGTON) INC.
BURLINGTON ENVIRONMENTAL INC. [DELAWARE]
BURLINGTON ENVIRONMENTAL INC. [WASHINGTON]
RESOURCE RECOVERY CORPORATION
TERMCO CORPORATION
GASOLINE TANK SERVICE COMPANY, INC.
UNITED DRAIN OIL SERVICE, INC.
XXXXXX ENVIRONMENTAL SERVICES CORPORATION
SOLVENT RECOVERY CORPORATION
XXXXXX INDUSTRIAL SERVICES (USA), INC.
XXXXXX INDUSTRIAL SERVICES GROUP, INC.
ALRC, INC.
APLC, INC.
ALLWASTE ASBESTOS ABATEMENT HOLDINGS, INC.
ALLWASTE ASBESTOS ABATEMENT, INC.
ALLWASTE ASBESTOS ABATEMENT OF NEW ENGLAND, INC.
ONEIDA ASBESTOS REMOVAL, INC.
ONEIDA ASBESTOS ABATEMENT INC.
XXXXXX ENVIRONMENTAL SERVICES, INC.
ACE/ALLWASTE ENVIRONMENTAL SERVICES OF INDIANA, INC.
17
ALL SAFETY AND SUPPLY, INC.
XXXXXX SCAFFOLD CORPORATION
ALLSCAFF, INC.
ALLWASTE ENVIRONMENTAL SERVICES/NORTH CENTRAL, INC.
XXXXXX SERVICES/OHIO, INC.
XXXXXX XXXX INDUSTRIAL SERVICES, INC.
XXXXXX TRANSPORTATION AND REMEDIATION, INC.
XXXXXX SERVICES/SOUTH CENTRAL, INC.
XXXXXX SERVICES/SOUTHWEST, INC.
XXXXXX SERVICES HAWAII, LTD.
ALLWASTE SERVICIOS INDUSTRIALES DE CONTROL ECOLOGICO
S.A. DE C.V.
ALLWASTE TANK SERVICES S.A. DE C.V.
ALLWASTE TEXQUISITION, INC.
CALIGO DE MEXICO, S.A. DE C.V.
XXXXXX AUTOMOTIVE, LTD.
INDUSTRIAL CONSTRUCTION SERVICES COMPANY, INC.
X.X. XXXXXXX/ALLWASTE, INC.
XXXXX & LUTHER SERVICES, INC.
JESCO INDUSTRIAL SERVICES, INC.
XXXXXX OIL RECYCLING, INC.
XXXXXX INDUSTRIAL SERVICES OF TEXAS, INC.
XXXXXX SERVICES/LOUISIANA, INC.
XXXXXX MID-ATLANTIC, INC.
18
XXXXXX SERVICES/MISSOURI, INC.
XXXXXX SERVICES/MOBILE, INC.
XXXXXX SERVICES/NORTH ATLANTIC, INC.
XXXXXX SERVICES/NORTH CENTRAL, INC.
XXXXXX SERVICES/OKLAHOMA, INC.
XXXXXX PLANT SERVICES, INC.
XXXXXX SERVICES/ATLANTA, INC.
BEC/XXXXXX, INC.
XXXXXX/XXXXXXX, INC.
ALLWASTE OF CANADA LTD.
CALIGO RECLAMATION LTD.
ALLWASTE TANK CLEANING, INC.
ALLWASTE RAILCAR CLEANING, INC.
ALLWASTE RECOVERY SYSTEMS, INC.
PSC ENTERPRISES, INC.
ALLIES STAFFING, INC.
ALLIES STAFFING LTD.
ALLQUEST CAPITAL, INC.
XXXXXX METALS (DELAWARE), INC.
INTSEL SOUTHWEST LIMITED PARTNERSHIP
XXXXXX METALS INC.
XXXXXX METALS RECOVERY (USA) INC.
XXXXXX SERVICES (PENNSYLVANIA), INC.
19
XXXXXX METALS (NEW YORK), INC.
XXXXXX ST, INC.
XXXXXX CHEMISOLV HOLDINGS, INC.
XXXXXX CHEMI-SOLV, INC.
DM ACQUISITION CORPORATION
DELTA MAINTENANCE, INC.
XXXXXX REFRACTORY & CORROSION CORPORATION
XXXXXXX CORPORATION
XXXXXX REFRACTORY SERVICES, INC.
TOTAL REFRACTORY SYSTEMS, INC.
XXXXXX REFRACTORY & CORROSION SERVICES, INC.
UNITED INDUSTRIAL MATERIALS, INC.
INDUSTRIAL SERVICES TECHNOLOGIES, INC.
ADVANCED ENVIRONMENTAL SYSTEMS, INC.
ADVANCED ENERGY CORPORATION
INTERNATIONAL CATALYST, INC.
IST HOLDING CORP.
CHEM-FAB, INC.
PIPING HOLDINGS CORP.
PIPING COMPANIES, INC.
PIPING MECHANICAL CORPORATION
HYDRO-ENGINEERING & SERVICE, INC.
MAC-TECH, INC.
20
SERV-TECH DE MEXICO S DE X.X. DE C.V.
SERV-TECH MEXICANA S DE X.X. DE C.V.
PETROCHEM FIELD SERVICES DE VENEZUELA
XXXXXX ENTERPRISE SERVICE CORPORATION
XXXXXX MECHANICAL SERVICES OF LOUISIANA, INC.
XXXXXX ST PIPING, INC.
XXXXXX TECHNICAL SERVICES, INC.
XXXXXX/SECO INDUSTRIES, INC.
TIPCO ACQUISITION CORP.
PRS HOLDING, INC.
XXXXXX XXXXX RECOVERY SYSTEMS, INC.
SERV-TECH EPC, INC.
SERV-TECH CONSTRUCTION AND MAINTENANCE, INC.
SERV-TECH ENGINEERS, INC.
XXXXXX X.X. XXXXXXXX, INC.
SERV-TECH INTERNATIONAL SALES, INC.
SERV-TECH OF NEW MEXICO, INC.
SERV-TECH SERVICES, INC.
SERV-TECH SUDAMERICANA S.A.
SERVTECH CANADA, INC.
ST DELTA CANADA, INC.
TERMINAL TECHNOLOGIES, INC.
RMF GLOBAL, INC.
21
RMF INDUSTRIAL CONTRACTING, INC.
RMF ENVIRONMENTAL, INC.
XXXXXX METALS (USA), INC.
ARC DUST PROCESSING (BARBADOS) LIMITED
PHENCORP INTERNATIONAL FINANCE INC.
PHENCORP INTERNATIONAL B.V.
XXXXXX SERVICES (NETHERLANDS) B.V.
XXXXXX SERVICES (EUROPE) LIMITED
ALLIED METALS LIMITED
B.M. METALS (RECYCLING) LTD.
BATH RECLAMATION (AVONMOUTH) CO. LIMITED
BLACKBUSHE LIMITED
BLACKBUSHE METALS (WESTERN) LIMITED
XXXXXXX METAL COMPANY LIMITED
SOUTHERN HAULIERS LIMITED
X.X. XXXXXX (METALS) LIMITED
X. XXXXXX (HOLDINGS) LIMITED
X. XXXXXX & CO., LIMITED
X. XXXXXXX & SONS (BRISTOL) LIMITED
XXXXX XXXXXX LIMITED
WIDSITE LIMITED
XXXXXX METALS (EUROPE) LIMITED
PHENCORP REINSURANCE COMPANY INC.
22
XXXXXX INTERNATIONAL DEVELOPMENT INC.
CECATUR HOLDINGS
XXXXXX SERVICES (DELAWARE), L.L.C.
CHEMISOLV LIMITED
and all other Guarantor Subsidiaries (if any)
in each case by:
Xxxxx Xxxxx
Authorized Signatory
23
EXHIBIT A
ALLOCATION OF REDUCTION IN LIMIT OF CREDIT
EXHIBIT A
XXXXXX SERVICES CORP.
REVISED COMMITMENTS
TR 1 % TR 2 % TR 3 % L/CS
------------ ------ ------------ ------ ------------ ------ -----------
ABN AMRO..................... $ 22,052,504 11.01%
Banco Hispano................ $ 7,792,450 2.19%
Bank of America.............. $ 37,015,212 7.28%
Bank of Tokyo-Mes............ $ 32,902,410 6.45%
Bankers Trust................ $ 10,377,245 9.17% $ 18,507,605 3.83% $ 11,688,674 3.28% $12,572,042
BNP 15/Goldman50............. $ 36,754,480 18.35% $ 12,338,404 2.42%
Banque Paribas............... $ 15,564,899 4.37%
CIBC......................... $ 51,410,015 10.08% $16,762,722
Chase/TCB.................... $ 16,528,520 8.28% $ 1,948,112 0.55%
Commenca Bank................ $ 19,481,124 5.48%
Xxxxxxx Xxxxx................ $ 41,128,013 8.98%
CSFB......................... $ 16,451,285 3.23%
DKB.......................... $ 7,350,898 3.67% $ 19,481,124 5.49%
Deutsche Bank................ $ 28,789,608 5.85%
Dresdner..................... $ 14,377,245 9.17% $ 4,112,881 0.81% $ 19,481,124 5.49% $19,762,722
First Chicago NBD............ $ 37,015,212 7.26%
Fuji Bank.................... $ 18,377,245 9.17% $ 7,792,450 2.19%
Hibernia..................... $ 15,584,899 4.37%
IBJ.......................... $ 25,728,143 12.84%
Key Bank..................... $ 15,584,699 4.37%
Lloyds Bank Plc.............. $ 27,273,574 7.65%
LTCB......................... $ 35,066,023 9.84%
Mellon Bank.................. $ 16,451,205 3.23%
Mutual Life.................. $ 18,377,245 9.17%
National Bank................ $ 20,564,007 4.00%
NationsBank.................. $ 38,962,248 10.93%
PNC Bank..................... $ 38,962,248 10.93%
Royal Bk of Cda.............. $ 20,564,002 4.03% $16,762,722
Ryl Bk of Scotland........... $ 15,584,899 4.37%
Sakura Bank.................. $ 24,676,808 4.84%
Sanwa Bank................... $ 24,676,808 4.84%
Societe Generale............. $ 41,128,013 8.00%
Sumitomo Bank................ $ 18,377,245 9.17% $ 7,782,450 2.19%
Sumitomo Trust............... $ 3,886,225 1.09%
Summit....................... $ 15,594,028 4.37%
The BNS...................... $ 41,128,013 8.08%
Toronto Dominion............. $ 41,128,013 8.08%
Goldman Xxxxxxxxxxx.......... $ 15,584,589 4.37%
U.S. Bank.................... $ 7,792,450 2.19%
Wachovia Bank................ $ 15,584,890 4.37%
------------ ------ ------------ ------ ------------ ------ -----------
Total........................ $200,311,569 100% $509,987,361 100% $356,504,571 100% $62,560,208
% OPER % TOTAL
------ ----------- ------ --------------
ABN AMRO..................... $ 22,052,604
Banco Hispano................ $ 7,792,450
Bank of America.............. $ 37,015,212
Bank of Tokyo-Mes............ $ 32,902,410
Bankers Trust................ 20.00% $ 61,145,567
BNP 15/Goldman50............. $ 40,082,894
Banque Paribas............... $ 15,484,899
CIBC......................... 26.67% $ 68,172,738
Chase/TCB.................... $19,575,834 27.83% $ 38,053,567
Commenca Bank................ $21,716,488 30.80% $ 41,197,532
Xxxxxxx Xxxxx................ $ 41,128,013
CSFB......................... $ 16,451,285
DKB.......................... $ 26,032,022
Deutsche Bank................ $ 28,789,608
Dresdner..................... 26.67% $ 58,73,002
First Chicago NBD............ $ 37,015,212
Fuji Bank.................... $ 26,160,094
Hibernia..................... $ 15,584,899
IBJ.......................... $ 25,728,143
Key Bank..................... $ 15,584,699
Lloyds Bank Plc.............. $ 27,273,574
LTCB......................... $ 35,066,023
Mellon Bank.................. $ 16,451,205
Mutual Life.................. $ 18,377,245
National Bank................ $ 20,564,007
NationsBank.................. $ 38,962,248
PNC Bank..................... $ 38,962,248
Royal Bk of Cda.............. 26.67% $29,043,550 41.29% $ 66,370,278
Ryl Bk of Scotland........... $ 15,584,899
Sakura Bank.................. $ 24,676,808
Sanwa Bank................... $ 24,676,808
Societe Generale............. $ 41,128,013
Sumitomo Bank................ $ 26,169,054
Sumitomo Trust............... $ 3,886,225
Summit....................... $ 15,594,028
The BNS...................... $ 41,128,013
Toronto Dominion............. $ 41,128,013
Goldman Xxxxxxxxxxx.......... $ 15,584,589
U.S. Bank.................... $ 7,792,450
Wachovia Bank................ $ 15,584,890
------ ----------- ------ --------------
Total........................ 100% $70,335,892 100% $1,200,000,000
24
EXHIBIT B
============================================================= =============================================================
RELEASED AMOUNTS RELEASE DATES
============================================================= =============================================================
U.S. $10,000,000 to cash collateralize letters of credit Immediately on meeting conditions precedent
issued outside of Credit Agreement
------------------------------------------------------------- -------------------------------------------------------------
U.S. $12,000,000, for additional short term working capital Immediately on meeting conditions precedent
requirements
------------------------------------------------------------- -------------------------------------------------------------
U.S. $5,000,000 to cash collateralize letters of credit June 30, 1998
issued outside of Credit Agreement
------------------------------------------------------------- -------------------------------------------------------------
U.S. $8,000,000 for additional short term working capital July 2, 1998
requirements
------------------------------------------------------------- -------------------------------------------------------------
U.S. $5,000,000 to cash collateralize letters of credit July 22, 1998
issued outside of Credit Agreement
------------------------------------------------------------- -------------------------------------------------------------
U.S. $20,000,000 for additional short term working capital July 22, 1998
requirements
============================================================== =============================================================
