Exhibit 10.1
AMENDMENT NUMBER NINE TO LOAN AGREEMENT
THIS AMENDMENT NUMBER NINE TO LOAN AGREEMENT (this
"Amendment"), dated as of April 8, 2003, 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, restated,
supplemented, or modified from time to time, the "Loan Agreement");
WHEREAS, the Borrowers have requested that the Lender Group
agree to extend the Maturity Date to give the Borrowers an extra period of time
to engage in the planning, reorganization, and restructuring efforts described
in the Borrowers' current report on Form 8-K filed with the Securities and
Exchange Commission attached as Exhibit B hereto;
WHEREAS, the Borrowers have also requested that the Lender
Group consent to the other amendments to the Loan Agreement 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 on the terms set forth herein.
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 amending and
restating the following definition in its entirety as follows:
"Tranche A Advance Availability" means, as of any date of
determination (and after giving effect to any requested Tranche A Letter of
Credit or Tranche A Advance), the lowest of (i) the Maximum Tranche A Amount
less the sum of (A) the Tranche A Block,
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plus (B) the then extant Tranche A Letter of Credit Usage, plus (C) the then
extant amount of outstanding Tranche A Advances, (ii) the Borrowing Base less
the sum of (A) the then extant Tranche A Letter of Credit Usage, plus (B) the
then extant amount of outstanding Tranche A Advances, or (iii) $50,000,000 minus
the then extant amount of outstanding Tranche A Advances.
(b) Section 1.1 of the Loan Agreement is hereby amended by inserting
the following new definitions in proper alphabetical order:
"Ninth Amendment" means that certain Amendment Number Nine to
Loan Agreement, dated as of April 8, 2003, among the Borrowers and the Lender
Group.
"Ninth Amendment Fee" has the meaning set forth in Section
2.12(o).
"Tranche A Block" means $22,000,000.
(c) Section 2.1(a) of the Loan Agreement is amended and restated in its
entirety as follows:
"(a) Subject to the terms and conditions of this Agreement,
and during the term of this Agreement, each Lender with a Tranche A Commitment
agrees to make advances ("Tranche A Advances") to Borrowers in an amount at any
one time outstanding not to exceed such Lender's Pro Rata Share of an amount
equal to the lowest of (i) the Maximum Tranche A Amount less the sum of (A) the
Tranche A Block plus (B) the then extant Tranche A Letter of Credit Usage, (ii)
the Borrowing Base less the then extant Tranche A Letter of Credit Usage, or
(iii) $50,000,000."
(d) Section 2.2(a)(ii) of the Loan Agreement is amended and restated in
its entirety as follows:
"(ii) the Tranche A Letter of Credit Usage would exceed the
Maximum Tranche A Amount less the sum of (A) the then
extant amount of outstanding Tranche A Advances and (B)
the Tranche A Block, or"
(e) Section 2.3(b) of the Loan Agreement is amended and restated in its
entirety as follows:
"(b) Anything to the contrary in this Section 2.3
notwithstanding, Borrowers shall not have the right to require Lenders with
Tranche B-Prime Commitments to make Tranche B-Prime Advances to Borrowers unless
the Tranche A Usage exceeds the result of the Maximum Tranche A Amount less the
sum of the Tranche A Block and $10,000,000."
(f) Section 2.3A(c) of the Loan Agreement is amended and restated in
its entirety as follows:
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"(c) Anything to the contrary in this Section 2.3A
notwithstanding, Borrowers shall not have the right to require Lenders with
Tranche Sub-B Commitments to make Tranche Sub-B Advances to Borrowers unless (i)
the Tranche A Usage exceeds the result of the Maximum Tranche A Amount less the
sum of the Tranche A Block and $10,000,000, and (ii) Tranche B-Prime
Availability is less than $10,000,000.
(g) Section 2.12 of the Loan Agreement is hereby amended by deleting
the word "and" at the end of clause (m), by deleting the period at the end of
clause (n) and replacing it with ", and", and by adding the following new clause
(o):
"(o) NINTH AMENDMENT FEE. For the benefit of the Tranche
B-Prime Lenders, an amendment fee in the amount of $100,000, which shall be
fully earned and paid in full in cash in immediately available funds on or
before the date of the Ninth Amendment, which amendment fee shall be divided
equally between Ableco and Meadow."
(h) The first sentence of Section 3.4 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
"This Agreement shall become effective upon the execution and
delivery hereof by Borrowers and the Lender Group and shall continue in full
force and effect for a term ending on June 2, 2003 (the "Maturity Date")."
(i) Section 15.1(g) of the Loan Agreement is amended and restated in
its entirety as follows:
"(g) change the definition of "Required Lenders," "Pro Rata
Share," "Collections," "Maximum Facility Amount," "Maximum Tranche A Amount,"
"Maximum Tranche B-Prime Amount," "Maximum Tranche Sub-B Amount," "Total
Commitment," "Tranche A Advance Availability," "Tranche A Block", "Tranche A
Commitment," "Tranche A Usage," "Tranche B-Prime Availability," "Tranche B-Prime
Commitment," "Tranche B-Prime Usage," "Tranche Sub-B Advance Availability,"
"Tranche Sub-B Commitment," or "Tranche Sub-B Usage";"
3. WAIVER. The Lender Group hereby waives any Default or Event of Default
(effective as of the date of such Default or Event of Default) that has occurred
as a result of Parent's failure to timely deliver to Agent an audit opinion
without a "going concern" or like qualification or exception with respect to the
consolidated financial statements of Parent and its Subsidiaries for their 2002
fiscal year pursuant to Section 6.2(b) of the Loan Agreement; provided, that
such waiver shall not impair or otherwise affect Parent's other obligations
under this Amendment or the other Loan Documents, including with out limitation,
the provisions of Section 6 hereof.
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4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and warrants
to the Lender Group as follows:
(a) It has the requisite power and authority to execute and deliver
this Amendment and to perform its obligations hereunder and under the Loan
Documents to which it is a party. The execution, delivery, and performance by it
of this Amendment and the performance by it of each Loan Document to which it is
a party (i) have been duly approved by all necessary action and no other
proceedings are necessary to consummate such transactions; and (ii) are not in
contravention of (A) any law, rule, or regulation, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court or governmental
authority binding on it, (B) the terms of its organizational documents, or (C)
any provision of any contract or undertaking to which it is a party or by which
any of its properties may be bound or affected;
(b) This Amendment has been duly executed and delivered by such
Borrower. This Amendment and each Loan Document to it is a party is its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, and is in full force and effect except as such validity and
enforceability is limited by the laws of insolvency and bankruptcy, laws
affecting creditors' rights and principles of equity applicable hereto;
(c) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein has been issued and remains in force by any Governmental
Authority against any Borrower, any Guarantor, or any member of the Lender
Group;
(d) No Default or Event of Default has occurred and is continuing on
the date hereof or as of the date of the effectiveness of this Consent; and
(e) The representations and warranties in the Loan Agreement and the
other Loan Documents (other than with respect to events that have been expressly
consented to in writing by the Lender Group since the date on which such
representations and warranties were first made) are true and correct in all
material 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).
5. CONDITIONS PRECEDENT. The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this Amendment:
(a) The representations and warranties in the Loan Agreement and the
other Loan Documents (other than with respect to events that have been expressly
consented to in writing by the Lenders since the date on which such
representations and warranties were first made) 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);
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(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) 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.
6. CONDITIONS SUBSEQUENT. The satisfaction of each of the following shall
constitute conditions subsequent to the effectiveness of this Amendment (the
failure by Parent to so perform or cause to be performed constituting an
immediate Event of Default):
(a) on or before June 2, 2003, Parent shall have delivered to Agent
audited financial statements with respect to Parent's 2002 fiscal year that
satisfy the requirements of Section 6.03(b)(i) of the Loan Agreement, including
without limitation the requirement that such audited financial statements be
certified, without any qualifications (including without limitation a "going
concern" or like qualification or exception), by such accountants to have been
prepared in accordance with GAAP; and
(b) on or before April 14, 2003, the Junior Secured Debt Documents
shall have been amended with respect to the delivery of Parent's audited
financial statements with respect to Parent's 2002 fiscal year, which amendment
shall be 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.
7. 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.
8. 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, and the waivers
expressly set forth in Section 3 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. The amendments
and 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
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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. Any failure by Borrowers to comply
with any of the covenants or other agreements set forth herein shall constitute
an immediate Event of Default.
9. 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.
10. 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
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx,
Senior Vice President and CFO
XXXXXX METALS (NEW YORK), INC.,
a New York corporation
PSC METALS, INC.,
an Ohio corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and Treasurer
of each of the foregoing companies
CAPPCO TUBULAR PRODUCTS USA, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
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21ST CENTURY ENVIRONMENTAL
MANAGEMENT, INC. OF NEVADA,
a Nevada corporation
21ST CENTURY ENVIRONMENTAL
MANAGEMENT, INC. OF RHODE ISLAND,
a Rhode Island corporation
ALLWASTE TANK CLEANING, INC.,
a Georgia corporation
ALLWORTH, INC., an Alabama corporation
BURLINGTON ENVIRONMENTAL INC.,
a Washington corporation
CHEM-FREIGHT, INC., an Ohio corporation
CHEMICAL RECLAMATION SERVICES, INC.,
a Texas corporation
CHEMICAL POLLUTION CONTROL, INC.
OF FLORIDA - A 21ST CENTURY
ENVIRONMENTAL MANAGEMENT COMPANY,
a Florida corporation
CHEMICAL POLLUTION CONTROL, INC.
OF NEW YORK - A 21ST CENTURY
ENVIRONMENTAL MANAGEMENT COMPANY,
a New York corporation
COUSINS WASTE CONTROL CORPORATION,
an Ohio corporation
CYANOKEM INC., a Michigan corporation
LUNTZ ACQUISITION (DELAWARE) CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
President of each of the foregoing
companies
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NORTHLAND ENVIRONMENTAL, INC.,
a Delaware corporation
NORTRU, INC., a Michigan corporation
XXXXXX ENVIRONMENTAL SERVICES
CORPORATION, a Missouri corporation
XXXXXX TRANSPORTATION AND
REMEDIATION, INC., a California
corporation
XXXXXX RECLAMATION SERVICES,
HOUSTON, INC., a Texas corporation
PSC ENVIRONMENTAL SERVICES, INC.,
a Delaware corporation
PSC INDUSTRIAL OUTSOURCING, INC.,
a Delaware corporation
PSC INDUSTRIAL SERVICES, INC.,
a Delaware corporation
REPUBLIC ENVIRONMENTAL RECYCLING
(NEW JERSEY), INC.,
a Delaware corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(PENNSYLVANIA), INC.,
a Pennsylvania corporation
REPUBLIC ENVIRONMENTAL SYSTEMS
(TRANSPORTATION GROUP), INC.,
a Pennsylvania corporation
RESOURCE RECOVERY CORPORATION,
a Washington corporation
RHO-CHEM CORPORATION,
a California corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
President of each of the foregoing
companies
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REPUBLIC ENVIRONMENTAL SYSTEMS
(TECHNICAL SERVICES GROUP), INC.,
a New Jersey corporation
SOLVENT RECOVERY CORPORATION,
a Missouri corporation
THERMALKEM INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
President of each of the foregoing
companies
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ACE/ALLWASTE ENVIRONMENTAL
SERVICES OF INDIANA, INC.,
an Illinois corporation
DELTA MAINTENANCE, INC.,
a Louisiana corporation
INTERNATIONAL CATALYST, INC.,
a Nevada corporation
JESCO INDUSTRIAL SERVICE, INC.,
a Kentucky corporation
XXXXXX SERVICES/NORTH CENTRAL, INC.,
an Iowa corporation
PSC RECOVERY SYSTEMS, INC.,
a Georgia corporation
RMF GLOBAL, INC.,
an Ohio corporation
RMF INDUSTRIAL CONTRACTING, INC.,
a Michigan corporation
SERV-TECH EPC, INC.,
a Nevada corporation
TOTAL REFRACTORY SYSTEMS, INC.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx
Vice President
of each of the foregoing companies
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FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
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FOOTHILL INCOME TRUST L.P.,
a Delaware limited partnership,
as a Lender
By: FIT GP, LLC, its general partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Its: Managing Member
FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership,
as a Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Its: Managing General Partner
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ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
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XXXXXXXXX LLC,
a New York limited liability company,
as a Lender
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
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MEADOW WALK LIMITED PARTNERSHIP,
a Delaware limited partnership,
as a Lender
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
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