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EXHIBIT 10.10
AMENDMENT NUMBER ONE TO LOAN AGREEMENT
THIS AMENDMENT NUMBER ONE TO LOAN AGREEMENT (this "Amendment"), dated
as of March 28, 2001, 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, "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"), in light of the following:
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, 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 to, among other things, amend the financial
covenants and provide for certain discretionary investments; 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 agree to amend the
Loan Agreement 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 hereby is amended by adding the
following defined terms in proper alphabetical order:
"First Amendment" means that certain Amendment Number One to
Loan Agreement, dated as of March 28, 2001, among the Borrowers and the
Lender Group.
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"First Amendment Closing Date" means the date, if ever, that
all of the conditions set forth in Section 3 of the First Amendment
shall be satisfied.
(b) The definition of "Permitted Investment" set forth in Section 1.1
of the Loan Agreement hereby is amended by deleting the word "and" appearing
immediately prior to clause (h) appearing in said definition and inserting the
following text immediately after clause (h) appearing therein:
", and (i) so long as (i) no Event of Default has occurred and
is continuing or would result therefrom, (ii) the average Combined
Availability for the 30 day period immediately preceding the date of
the consummation of the proposed investment and after giving effect
thereto is not less than $25,000,000, and (iii) Administrative Borrower
provides Agent with not less than 10 Business Days prior written notice
of the proposed investment and, in connection therewith, provides Agent
with such supplemental information as Agent may reasonably request
describing the nature and amount of the proposed investment,
discretionary investments by one or more of the Obligors in non-Obligor
third Persons in an aggregate amount not to exceed $1,000,000 in any 12
month period."
(c) Section 7.10 of the Loan Agreement hereby is amended and restated
in its entirety as follows:
"7.10 CONSIGNMENTS. Consign any Inventory or sell any
Inventory on xxxx and hold, sale or return, sale on approval, or other
conditional terms of sale, or, except in connection with the businesses
of brokering, or entering into tolling agreements regarding, scrap
metal, have possession of any property on consignment to an Obligor;
provided, however, that the foregoing shall not prevent the Obligors
from consigning Inventory to third Persons, so long as (a)
Administrative Borrower shall have given 10 days prior written notice
to Agent of the proposed consignee, (b) on or prior to any such
consignment, Administrative Borrower shall have provided such evidence
as Collateral Agent may reasonably request demonstrating that the
applicable Obligor shall have taken such steps as may be necessary so
as to ensure that such consigned Inventory is not subject to the claims
of the applicable consignee's creditors, including without limitation,
segregating the consigned Inventory and filing such financing
statements or other filings reflecting the applicable Obligor, as
consignor, and the applicable third Person, as consignee, as may be
appropriate, (c) prior to delivering any Inventory to the proposed
consignee, the applicable Obligor provides any financing statements or
other filings necessary to perfect and continue perfected the
Collateral Agent's Liens on such consigned Inventory, (d) the aggregate
amount of consigned Inventory does not exceed $20,000,000 at any one
time outstanding, and (e) the aggregate amount of consigned Inventory
held by any individual consignee does not exceed $5,000,000 at any one
time outstanding."
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(d) Section 7.19(a) of the Loan Agreement hereby is amended by deleting
the table appearing in said Section and inserting the following table in lieu
thereof:
FISCAL QUARTER ENDING MINIMUM EBITDA
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for the 12 months ended $55,000,000
March 31, 2001
for the 12 months ended $65,500,000
June 30, 2001
for the 12 months ended $76,000,000
September 30, 2001
for the 12 months ended $85,000,000
December 31, 2001
for the 12 months ended $89,700,000
March 31, 2002
for the 12 months ended $94,800,000
June 30, 2002
for the 12 months ended $95,500,000
September 30, 2002
(e) Section 7.19(b) of the Loan Agreement hereby is amended by deleting
the table appearing in said Section and inserting the following table in lieu
thereof:
FISCAL QUARTER ENDING MINIMUM INTEREST COVERAGE RATIO
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for the 12 months ended 1.69:1.00
March 31, 2001
for the 12 months ended 1.98:1.00
June 30, 2001
for the 12 months ended 2.13:1.00
September 30, 2001
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FISCAL QUARTER ENDING MINIMUM INTEREST COVERAGE RATIO
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for the 12 months ended 2.21:1.00
December 31, 2001
for the 12 months ended 2.34:1.00
March 31, 2002
for the 12 months ended 2.47:1.00
June 30, 2002
for the 12 months ended 2.49:1.00
September 30, 2002
(f) Section 16.17(d) of the Loan Agreement hereby is amended and
restated in its entirety as follows:
"(d) acknowledges that such Lender is aware of the provisions of the
Exchange Act and particularly Rule 10b-5 promulgated by the SEC thereunder with
regard to material non-public information; such Lender acknowledges that some
information received from Parent will be material non-public information; such
Lender agrees to keep all Reports and other material, non-public information
regarding Borrowers and their Subsidiaries and their operations, assets, and
existing and contemplated business plans in a confidential manner; it being
understood and agreed by Borrowers that in any event such Lender may make
disclosures (a) to counsel for and other advisors, accountants, and auditors to
such Lender, (b) reasonably required by any bona fide potential or actual
Assignee, transferee, or Participant in connection with any contemplated or
actual assignment or transfer by such Lender of an interest herein or any
participation interest in such Lender's rights hereunder, (c) of information
that has become public by disclosures made by Persons other than such Lender,
its Affiliates, assignees, transferees, or participants, or (d) as required or
requested by any court, governmental or administrative agency, pursuant to any
subpoena or other legal process, or by any law, statute, regulation, or court
order; provided, however, that, unless prohibited by applicable law, statute,
regulation, or court order, such Lender shall notify Borrowers of any request by
any court, governmental or administrative agency, or pursuant to any subpoena or
other legal process for disclosure of any such non-public material information
concurrent with, or where practicable, prior to the disclosure thereof; and"
(g) Schedule 5.8 of the Loan Agreement hereby is amended and restated
in its entirety in the form of Amended and Restated Schedule 5.8 attached
hereto.
(h) Schedule 6.11 of the Loan Agreement hereby is amended to include
the locations set forth on the Addendum to Schedule 6.11 attached hereto.
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3. CONDITIONS PRECEDENT TO AMENDMENT. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
(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 a fee, for the ratable benefit of the
Lender Group, of $200,000 in cash or by wire transfer of immediately available
funds.
(c) Agent shall have received the reaffirmation and consent of each
Guarantor attached hereto as Exhibit B, duly executed and delivered by an
authorized official of each Guarantor.
(d) The Junior Secured Debt Documents shall have been amended in form
and substance satisfactory to Agent and Parent shall have delivered a copy of
such amendments to Agent certified by the Secretary of Parent as being a true,
correct, and complete copy thereof.
(e) 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.
(f) 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 the Borrowers, Guarantors, or the Lender Group.
4. 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.
5. 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. 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.
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6. 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.
7. 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.
(c) Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "Schedule 5.8" shall mean and refer to "Amended and Restated
Schedule 5.8" attached hereto.
(d) Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "Schedule 6.11" shall be mean and refer to "Schedule 6.11" as
amended by "Addendum to Schedule 6.11" attached hereto.
[Signature page follows.]
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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. (1)
an Ohio corporation
XXXXXX INDUSTRIAL SERVICES (USA), 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
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(1) Xx. Xxxxxxxx is Treasurer of this Corporation.
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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
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XXX-XXXX XXXXXXXXXXX,
a California corporation
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., (2)
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
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{2} We draw your attention to the fact this Corporation is not currently in
good standing. Immediate steps have been taken to resolve this.
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PSC INDUSTRIAL SERVICES, INC.,
a Delaware corporation
XXXXXX SERVICES PHENCORP
INTERNATIONAL INC.
a Delaware corporation
XXXXXX TRANSPORTATION AND
REMEDIATION, INC.
a California corporation
DELTA MAINTENANCE, INC.
a Louisiana corporation
XXXXXX SERVICES CECATUR HOLDINGS LLC,
a Delaware Limited Liability Company
XXXXXX SERVICES CECATUR INC.
a Delaware corporation
XXXXXX SERVICES (PHENCORP) LLC
a Delaware Limited Liability Company
PSC RECOVERY SYSTEMS, INC.
a Georgia corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(TECHNICAL SERVICES GROUP), INC.
a New Jersey corporation
GEORGIA RECOVERY SYSTEMS, (3)
a Georgia partnership
GRS/LAKE XXXXXXX, LTD. (3)
a Louisiana limited partnership
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: _________________________________
Xxxxx X. Xxxxxxxx
Vice President and Treasurer
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(3) The general partner is Allwaste Recovery Systems, Inc. n/k/a PSC Recovery
Systems, Inc., a Georgia corporation.
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XXXXXXXX XXXXXXX XXXXXXXXXXX,
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
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ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By: _______________________________
Name: _______________________________
Title: _______________________________
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XXXXXXXXX LLC,
a New York limited liability company,
as a Lender
By: _______________________________
Name: _______________________________
Title: _______________________________
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XXXXX XXXXXXXXXXX,
a Nevada corporation, as a Lender
By: _______________________________
Name: _______________________________
Title: _______________________________
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EXHIBIT B
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement or in Amendment Number
One to Loan Agreement, dated as of March __, 2001 (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 acknowledgement 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]
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IN WITNESS WHEREOF, the undersigned have each executed this
Reaffirmation and Consent as of the date of the Letter Agreement.
Xxxxxx Services Inc.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Xxxxxx Analytical Services Inc.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Xxxxxx Investment Corp.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Recyclage d' Aluminium Inc.,
a Canadian corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
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ST Delta Canada, Inc.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Nortru, Ltd.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Allies Staffing Ltd.,
an Ontario corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Servtech Canada, Inc.,
a Canadian corporation
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
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Arc Dust Processing (Barbados) Limited,
a Barbados corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Director
Xxxxxx International Development Inc.,
a Barbados corporation
By:
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Name: Xxxxxx X. Xxxxx
Title: Director
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