EXHIBIT 10.18
AMENDMENT NUMBER FIVE TO LOAN AGREEMENT
THIS AMENDMENT NUMBER FIVE TO LOAN AGREEMENT (this "Amendment"), dated as
of February 19, 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, Three and Four to Loan Agreement dated as of March
28, 2001, May 18, 2001, November 19, 2001, and January 29, 2002 respectively (as
amended, restated, supplemented, or modified from time to time, the "Loan
Agreement"); and
WHEREAS, the Borrowers have failed to comply with the Minimum EBITDA
financial covenant set forth in Section 7.19(a) of the Loan Agreement for the
twelve months ended December 31, 2001.
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:
"Coilpac Consent" means that certain Consent and Release dated as
of February 15, 2002, among the Borrowers and the Lender Group.
"Coilpac Disposition" means the disposition of the Coilpac
Purchased Assets.
"Coilpac Purchased Assets" means the Purchased Assets, as such
term is defined in the Coilpac Consent.
(b) The first sentence of Section 2.5(c) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
1
"Promptly upon receipt by Agent of any proceeds from Collateral Agent,
whether on account of Permitted Dispositions, condemnation proceeds, casualty
proceeds, or otherwise, (i) subject to the last sentence of this subsection,
Agent shall apply such proceeds in accordance with Section 2.5(b) above, (ii) if
and to the extent that the Collateral Agency and Intercreditor Agreement
requires that the payment of proceeds is to be accompanied by a reduction of the
Commitments, then, except with respect to the payment of proceeds of the Coilpac
Disposition, such reduction shall be applied (y) first, to the Tranche A
Commitments, such reduction to be applied ratably amongst each of the Lenders
with Tranche A Commitments, and (z) second, to the Tranche B Commitments, such
reduction to be applied ratably amongst each of the Lenders with Tranche B
Commitments, (iii) if and to the extent that the Collateral Agency and
Intercreditor Agreement requires that the payment of proceeds of the Coilpac
Disposition is to be accompanied by a reduction of the Commitments, then such
reduction shall be applied (y) first, to the Tranche B Commitments, such
reduction to be applied ratably amongst each of the Lenders with Tranche B
Commitments, and (z) second, to the Tranche A Commitments, such reduction to be
applied ratably amongst each of the Lenders with Tranche A Commitments, and (iv)
if and to the extent that the Collateral Agency and Intercreditor Agreement
provides that the payment of proceeds is to be accompanied by a reduction of the
Commitments only to the extent elected by the Lenders, then such election shall
be made and such reduction shall be applied (y) first, to the Tranche A
Commitments, to the extent agreed to by Tranche A Lenders whose Pro Rata Shares
aggregate 51% of the Tranche A Commitments, such reduction to be applied ratably
amongst each of the Lenders with Tranche A Commitments, and (z) second, if and
to the extent that the Tranche A Lenders affirmatively decide that less than all
of the available reductions should reduce the Tranche A Commitments, to the
extent agreed to by Tranche B Lenders whose Pro Rata Shares aggregate 51% of the
Tranche B Commitments, to the Tranche B Commitments, such remaining available
reduction to be applied ratably amongst each of the Lenders with Tranche B
Commitments."
3. OTHER AGREEMENTS. The provisions of the Loan Agreement, the Coilpac
Consent and the other Loan Documents to the contrary notwithstanding (including
without limitation, the provisions of Section 2.5(b) of the Loan Agreement),
$4,271,996.43 of the proceeds of the Coilpac Disposition which would otherwise
be paid to Agent to be held as cash collateral pursuant to Section 2.5(b)(i)(M)
of the Loan Agreement shall instead be applied to pay the principal of all
Tranche B Advances.
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.
2
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.
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 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.
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.
3
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
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:
---------------------------------------
S-5
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:
--------------------------------------
S-9
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, Three and
Four to Loan Agreement dated as of March 28, 2001, May 18, 2001, November 19,
2001, and January 29, 2002 respectively (as amended, restated, supplemented or
otherwise modified, the "Loan Agreement") or in Amendment Number Five to Loan
Agreement, dated as of February 19, 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
