EXHIBIT 10.17
AMENDMENT NUMBER FOUR TO LOAN AGREEMENT
THIS AMENDMENT NUMBER FOUR TO LOAN AGREEMENT (this "Amendment"), dated as
of January 29, 2002, is entered into by and among XXXXXX SERVICES CORPORATION, a
Delaware corporation ("Parent"), each of Parent's Subsidiaries identified on the
signature pages hereof (such Subsidiaries, together with Parent, each a
"Borrower" and collectively, jointly and severally, the "Borrowers"), each of
the lenders that is a signatory to this Amendment (together with its successors
and permitted assigns, individually, a "Lender" and, collectively, the
"Lenders"), and FOOTHILL CAPITAL CORPORATION, a California corporation, as the
arranger and administrative agent for the Lenders (in such capacity, together
with its successors, if any, in such capacity, "Agent" and together with the
Lenders, collectively, the "Lender Group"):
W I T N E S S E T H
WHEREAS, the Borrowers and the Lender Group are parties to that certain
Loan Agreement, dated as of March 31, 2000, as amended by those certain
Amendments Numbers One, Two and Three to Loan Agreement dated as of March 28,
2001, May 18, 2001, and November 19, 2001 respectively (as amended, restated,
supplemented, or modified from time to time, the "Loan Agreement");
WHEREAS, the Borrowers have requested that the Lender Group consent to
the amendment of the Loan Agreement and to provide an optional Overadvance to
Borrowers as set forth herein; and
WHEREAS, subject to the satisfaction of the conditions set forth herein,
the Lender Group is willing to so consent to the amendment of the Loan
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Loan Agreement, as
amended hereby.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by inserting
the following definition in its proper alphabetical location:
"Fourth Amendment" means that certain Amendment Number Four to
Loan Agreement, dated as of January 29, 2002, among the Borrowers and the
Lender Group.
"Fourth Amendment Fee" has the meaning set forth in Section
2.12(i).
(b) Section 2.4(e)(i) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
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"(i) Agent hereby is authorized by Borrowers and the Lenders,
from time to time in Agent's sole discretion, (1) after the occurrence and
during the continuance of a Default or an Event of Default, or (2) at any time
that any of the other applicable conditions precedent set forth in Section 3
have not been satisfied, to make Advances to Borrowers on behalf of the Lenders
that Agent, in its reasonable business judgment, deems necessary or desirable
(A) to preserve or protect the Collateral, or any portion thereof, or (B) to
enhance the likelihood of repayment of the Obligations (any of the Advances
described in this Section 2.4(e) shall be deemed to be Tranche A Advances
hereunder and shall be referred to as "Agent Advances"); provided, however, that
at no time shall the aggregate amount of outstanding Agent Advances under this
Section 2.4(e) exceed $10,000,000. Each Agent Advance is an Advance hereunder
and shall be subject to all the terms and conditions applicable to other
Advances, except that all payments thereon shall be payable to Agent solely for
its own account."
(c) The first paragraph of Section 2.4(i) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
"(i) OPTIONAL OVERADVANCES. Any contrary provision of this
Agreement notwithstanding, if the condition for borrowing under Section 3.3(d)
cannot be fulfilled, the Lenders nonetheless hereby authorize Agent or Swing
Lender, as applicable, and Agent or Swing Lender, as applicable, may, but is not
obligated to, knowingly and intentionally continue to make Tranche A Advances
(including Swing Loans) to Borrowers, such failure of condition notwithstanding,
so long as, at the time any such Tranche A Advance is made, (i) the outstanding
Tranche A Usage does not exceed the Borrowing Base by more than $11,000,000,
(ii) after giving effect to any such Overadvance, the then extant amount of
Tranche A Advances does not exceed $50,000,000, and (iii) after giving effect to
any such Overadvance, the aggregate amount of outstanding optional Overadvances
made by Agent and Swing Lenders to Borrowers pursuant to this Section 2.4(i)
shall not exceed $11,000,000. The foregoing provisions are for the sole and
exclusive benefit of Agent, Swing Lenders, and the Lenders and are not intended
to benefit Borrowers in any way. The Advances and Swing Loans, as applicable,
that are made pursuant to this Section 2.4(i) shall be subject to the same terms
and conditions as any other Advance or Swing Loan, as applicable, except that
the rate of interest applicable thereto shall be the rates set forth in Section
2.7(c) hereof without regard to the presence or absence of a Default or Event of
Default."
(d) Section 2.12 of the Loan Agreement is hereby amended by deleting the
word "and" at the end of clause (g), by deleting the period at the end of clause
(h) and replacing it with the words ", and", and by adding the following new
clause (i):
"(i) FOURTH AMENDMENT FEE. For the ratable benefit of each
Lender which acts as a Swing Lender in connection with the optional Overadvances
provided for under the Fourth Amendment, a fee of $1,000,000 (the "Fourth
Amendment Fee"), which shall be fully earned and paid in full in cash in
immediately available funds on or before the date when such optional
Overadvances are made."
3. OTHER AGREEMENTS.
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(a) Arnos Corporation, a Nevada corporation ("Arnos Swing Lender"),
hereby agrees pursuant to the provisions of Section 2.4(i) of the Loan Agreement
to make an optional Overadvance, as a Swing Loan, in the amount of $7,700,000
(the "Arnos Overadvance").
(b) Xxxxxxxxx LLC, a Delaware limited liability company, together with
certain of its Affiliates (collectively, "Xxxxxxxxx Swing Lender") hereby
agrees, pursuant to the provisions of Section 2.4(i) of the Loan Agreement to
make an optional Overadvance, as a Swing Loan, in the amount of $3,300,000 (the
"Xxxxxxxxx Overadvance"; the Arnos Overadvance and the Xxxxxxxxx Overadvance,
collectively the "Designated Overadvances").
(c) By the execution of this Amendment, (i) Agent hereby appoints Arnos
Swing Lender to act as a Swing Lender in respect of the Arnos Overadvance, and
Arnos Swing Lender hereby accepts such appointment and agrees to act as a Swing
Lender in respect of the Arnos Overadvance; and (ii) Agent hereby appoints
Xxxxxxxxx Swing Lender to act as a Swing Lender in respect of the Xxxxxxxxx
Overadvance, and Xxxxxxxxx Swing Lender hereby accepts such appointment and
agrees to act as a Swing Lender in respect of the Xxxxxxxxx Overadvance.
(d) Each of the parties hereto hereby agrees that, the provisions of the
Loan Agreement to the contrary notwithstanding (including without limitation,
the provisions of Sections 2.4(i) and 2.7(a) of the Loan Agreement), the
Designated Overadvances shall bear interest on the Daily Balance thereof at a
per annum rate equal to the Base Rate plus 5.0 percentage points.
(e) Each of the parties hereto hereby agrees that, the provisions of the
Loan Agreement and the other Loan Documents to the contrary notwithstanding
(including without limitation, the provisions of Section 2.5(b) of the Loan
Agreement), (i) all payments and all proceeds of Collateral which would
otherwise be applied to pay interest due in respect of the Designated
Overadvances pursuant to Section 2.5(b)(F) of the Loan Agreement shall not be
paid until all accrued interest in respect of each other Obligation has been
paid in full, and shall thereafter be applied ratably to pay all interest due in
respect of the Designated Overadvances until paid in full, and (ii) all payments
and all proceeds of Collateral which would otherwise be applied to pay the
principal amount of the Designated Overadvances shall not be paid until the
principal amount of all Tranche B Advances has been paid in full, and shall
thereafter be applied ratably to pay the principal amount of the Designated
Overadvances until paid in full.
(f) Each of the parties hereto hereby agrees that, the provisions of the
Loan Agreement notwithstanding (including without limitation the provisions of
Section 2.4(f)), except for the respective obligations of Arnos Swing Lender and
Xxxxxxxxx Swing Lender to reimburse Agent in full for the principal amount of
the Designated Overadvances made by Agent on behalf of Arnos Swing Lender and
Xxxxxxxxx Swing Lender respectively, each of the calculations set forth pursuant
to Section 2.4(f) of the Loan Agreement shall be made without regard to the
Designated Overadvances, and no Lender shall have any obligations with any other
Lender under Section 2.4 of the Loan Agreement in respect of the Designated
Overadvances.
(g) Each Borrower authorizes Agent to retain an accounting firm selected
jointly by Arnos Swing Lender and Xxxxxxxxx Swing Lender, in their sole
discretion, to prepare for the Lender Group weekly cash flow projections and
other financial reports requested by the Lender
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Group with respect to the Borrowers, and to charge all fees and expenses
incurred by such accounting firm to Borrowers' Loan Account.
(h) The agreements set forth herein are limited to the specifics hereof
and shall not be construed as an agreement by any member of the Lender Group (i)
to make an Overadvance in the future, (ii) to appoint any Lender as a Swing
Lender in the future, or (iii) to accept such appointment as a Swing Lender in
the future.
4. CONDITIONS PRECEDENT. The satisfaction of each of the following shall
constitute conditions precedent to the respective obligations of Arnos Swing
Lender and Xxxxxxxxx Swing Lender to make the Designated Overadvances:
(a) The representations and warranties in the Loan Agreement and the
other Loan Documents shall be true and correct in all respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date);
(b) Agent shall have received the reaffirmation and consent of each
Guarantor attached hereto as Exhibit A, duly executed and delivered by an
authorized official of each Guarantor;
(c) Except for any Default or Event of Default occurring as a result of
the failure of Borrowers to maintain any of the financial covenants set forth in
Section 7.19 of the Loan Agreement for the 12 months ended December 31, 2001, no
Default or Event of Default shall have occurred and be continuing on the date
hereof or as of the date of the effectiveness of this Amendment; and
(d) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against any Obligor or the Lender Group.
5. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof, constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes any and all prior or contemporaneous
amendments relating to the subject matter hereof. Except for the amendments to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan Agreement
and other Loan Documents shall remain unchanged and in full force and effect.
The execution, delivery, and performance of this Amendment shall not operate as
a waiver of or, except as expressly set forth herein, as an amendment of, any
right, power, or remedy of the Lender Group as in effect prior to the date
hereof (including without limitation, with respect to any Default or Event of
Default occurring as a result of the failure of Borrowers to comply with the
covenants set forth in Section 7.19 of the Loan Agreement or with any other
provision of any Loan Document). The amendments and
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other agreements set forth herein are limited to the specifics hereof, shall not
apply with respect to any facts or occurrences other than those on which the
same are based, shall not excuse future non-compliance with the Loan Agreement,
and shall not operate as a consent to any further or other matter, under the
Loan Documents. To the extent any terms or provisions of this Amendment conflict
with those of the Loan Agreement or other Loan Documents, the terms and
provisions of this Amendment shall control. This Amendment is a Loan Document.
7. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Amendment by
signing any such counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
8. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
and delivered as of the date first written above.
XXXXXX SERVICES CORPORATION,
a Delaware corporation
PSC BY-PRODUCTS SERVICES, INC.,
a Delaware corporation
PSC INDUSTRIAL OUTSOURCING, INC.,
a Delaware corporation
PSC METALS, INC.,
an Ohio corporation
PSC INDUSTRIAL SERVICES, INC.,
a Delaware corporation
REPUBLIC ENVIRONMENTAL RECYCLING
(NEW JERSEY), INC.,
a Delaware corporation
NORTHLAND ENVIRONMENTAL, INC.,
a Delaware corporation
SOLVENT RECOVERY CORPORATION,
a Missouri corporation
XXXXXX ENVIRONMENTAL SERVICES
CORPORATION,
a Missouri corporation
COUSINS WASTE CONTROL CORPORATION,
an Ohio corporation
21ST CENTURY ENVIRONMENTAL MANAGEMENT,
INC. OF NEVADA,
a Nevada corporation
21ST CENTURY ENVIRONMENTAL MANAGEMENT,
INC. OF RHODE ISLAND,
a Rhode Island corporation
S-1
CHEMICAL POLLUTION CONTROL, INC.
OF NEW YORK - A 21ST CENTURY
ENVIRONMENTAL MANAGEMENT
COMPANY,
a New York corporation
BURLINGTON ENVIRONMENTAL INC.,
a Washington corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(PENNSYLVANIA), INC.,
a Pennsylvania corporation
CHEMICAL POLLUTION CONTROL, INC.
OF FLORIDA - A 21ST CENTURY
ENVIRONMENTAL MANAGEMENT
COMPANY,
a Florida corporation
RESOURCE RECOVERY CORPORATION,
a Washington corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(TRANSPORTATION GROUP), INC.,
a Pennsylvania corporation
CHEM-FREIGHT, INC.,
an Ohio corporation
NORTRU, INC.,
a Michigan corporation
CHEMICAL RECLAMATION SERVICES, INC.,
a Texas corporation
XXXXXX RECLAMATION SERVICES, HOUSTON, INC.,
a Texas corporation
THERMALKEM INC.,
a Delaware corporation
ALLWORTH, INC.,
an Alabama corporation
RHO-CHEM CORPORATION,
a California corporation
S-2
CYANOKEM INC.,
a Michigan corporation
INTERNATIONAL CATALYST, INC.,
a Nevada corporation
ALLWASTE TANK CLEANING, INC.,
a Georgia corporation
CAPPCO TUBULAR PRODUCTS USA, INC.,
a Georgia corporation
XXXXXX METALS (NEW YORK), INC.,
a New York corporation
TOTAL REFRACTORY SYSTEMS, INC.,
a Nevada corporation
XXXXXX SERVICES / NORTH CENTRAL,
INC.,
an Iowa corporation
RMF GLOBAL, INC.,
an Ohio corporation
JESCO INDUSTRIAL SERVICE, INC.,
a Kentucky corporation
XXXXXX METALS (USA), INC.,
an Ohio corporation
XXXXXX METALS RECOVERY (USA) INC.,
an Arizona corporation
ACE/ALLWASTE ENVIRONMENTAL
SERVICES OF INDIANA, INC.,
an Illinois corporation
LUNTZ ACQUISITION (DELAWARE) CORPORATION,
a Delaware corporation
SERV-TECH EPC, INC.,
a Nevada corporation
XXXXXX SERVICES PHENCORP
INTERNATIONAL INC.,
a Delaware corporation
S-3
XXXXXX TRANSPORTATION AND
REMEDIATION, INC.,
a California corporation
DELTA MAINTENANCE, INC.,
a Louisiana corporation
XXXXXX SERVICES CECATUR HOLDINGS LLC,
a Delaware limited liability company
BY: XXXXXX SERVICES CECATUR, INC.
Its: Sole Member
XXXXXX SERVICES CECATUR INC.,
a Delaware corporation
XXXXXX SERVICES (PHENCORP) LLC,
a Delaware limited liability company
BY: XXXXXX SERVICES PHENCORP INTERNATIONAL, INC.
Its: Sole Member
PSC RECOVERY SYSTEMS, INC.,
a Georgia corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(TECHNICAL SERVICES GROUP), INC.,
a New Jersey corporation
XXXXXX INDUSTRIAL SERVICES, INC.,
a Delaware corporation a successor in interest to
Xxxxxx Industrial Services (USA), Inc.
RMF INDUSTRIAL CONTRACTING, INC.,
a Michigan corporation
BY:
----------------------------------------------------
Xxxxxx X. X'Xxxxx, Xx.
a Vice President of each of
the above listed entities
which is not a limited
liability company, and as
Vice President of the
member entity of any
limited liability company
S-4
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and as a Lender
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
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FOOTHILL INCOME TRUST L.P.,
a Delaware limited partnership, as a Lender
By: FIT GP, LLC, its general partner
By:
--------------------------------------------
Its: Managing Member
FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership, as a Lender
By:
--------------------------------------------
Its: Managing General Partner
S-6
ABLECO FINANCE LLC,
a Delaware limited liability company, as a Lender
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
S-7
XXXXXXXXX LLC,
a New York limited liability company, as a Lender
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
S-8
ARNOS CORPORATION,
a Nevada corporation, as a Lender
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
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EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in that certain Loan Agreement by and among
XXXXXX SERVICES CORPORATION, a Delaware corporation ("Parent"), each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with Parent, each a "Borrower" and collectively, jointly and severally,
the "Borrowers"), each of the lenders that is a signatory to this Amendment
(together with its successors and permitted assigns, individually, "Lender" and,
collectively, "Lenders"), and FOOTHILL CAPITAL CORPORATION, a California
corporation, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors, if any, in such capacity, "Agent" and
together with the Lenders, collectively, the "Lender Group"), dated as of March
31, 2000, as amended by those certain Amendments Numbers One, Two and Three to
Loan Agreement dated as of March 28, 2001, May 18, 2001, and November 19, 2001
respectively (as amended, restated, supplemented or otherwise modified, the
"Loan Agreement") or in Amendment Number Four to Loan Agreement, dated as of
January 29, 2002 (the "Amendment"), among the Borrowers and Lender Group. The
undersigned hereby (a) represent and warrant to the Lender Group that the
execution, delivery, and performance of this Reaffirmation and Consent are
within its powers, have been duly authorized by all necessary action, and are
not in contravention of any law, rule, or regulation, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court, or governmental
authority, or of the terms of its charter or bylaws, or of any contract or
undertaking to which it is a party or by which any of its properties may be
bound or affected; (b) consents to the transactions contemplated by the
Amendment; (c) acknowledges and reaffirms its obligations owing to the Lender
Group under any Loan Documents to which it is a party; and (d) agrees that each
of the Loan Documents to which it is a party is and shall remain in full force
and effect. Although the undersigned has been informed of the matters set forth
herein and has acknowledged and agreed to same, it understands that the Lender
Group has no obligations to inform it of such matters in the future or to seek
its acknowledgment or agreement to future amendments, and nothing herein shall
create such a duty. Delivery of an executed counterpart of this Reaffirmation
and Consent by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Reaffirmation and Consent. Any party
delivering an executed counterpart of this Reaffirmation and Consent by
telefacsimile also shall deliver an original executed counterpart of this
Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed
by the laws of the State of New York.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation
and Consent to be executed as of the date of the Amendment.
XXXXXX SERVICES INC.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
XXXXXX ANALYTICAL SERVICES INC.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
XXXXXX INVESTMENT CORP.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
ST DELTA CANADA, INC.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
NORTRU, LTD.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
ALLIES STAFFING LTD.,
an Ontario corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
SERVTECH CANADA, INC.,
a Canadian corporation
By:
----------------------------------------------------
Name: Xxxxxx X. X'Xxxxx, Xx.
Title: Vice President and Treasurer
ARC DUST PROCESSING (BARBADOS) LIMITED,
a Barbados corporation
By:
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
XXXXXX INTERNATIONAL DEVELOPMENT INC.,
a Barbados corporation
By:
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
