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AMENDING AGREEMENT NO. 4
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THIS IS AN AMENDING AGREEMENT made as of October 20, 1998 among XXXXXX
SERVICES CORP. (the "CDN. BORROWER"), as a borrower in Canada , XXXXXX SERVICES
(DELAWARE), INC. (the "U.S. BORROWER"), as a borrower in the United States of
America, and CANADIAN IMPERIAL BANK OF COMMERCE (the "ADMINISTRATIVE AGENT"), as
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, February 19, 1998 and
June 24, 1998 (the "CREDIT AGREEMENT").
B. The Borrowers have requested an amendment to the Credit Agreement to expand
the purposes for which the Cdn. Borrower may incur Debt under standby
letters of credit.
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:
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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 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 NEGATIVE COVENANTS - DEBT: Subsection 8.02(a)(ix) of the
Credit Agreement is deleted in its entirety and the following new subsection
8.02(a)(ix) is substituted in its place:
"(ix) standby letters of credit in an aggregate amount of not more than
U.S. $20,000,000 (or the Equivalent Amount in any other currency or
currencies) issued for the account of the Cdn. Borrower (to provide
credit support to suppliers of the North American metals business of
the Restricted Parties, or for other proper purposes in the ordinary
course of business of the Restricted Parties, or to support the
payroll and other ordinary course cash management requirements 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 liabilities of
the Cdn. Borrower under such standby letter of credit facility are
unsecured except for the Permitted LC
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Facility Cash Collateral Security."
SECTION 2.02 NEGATIVE COVENANTS - ADDITIONAL STANDSTILL RESPECTING CERTAIN
ACTIVITIES: Subsection 8.02(v) of the Credit Agreement is amended by revising
the reference to "September 30, 1998" in the third line of the main paragraph of
such subsection to read "June 30, 1999".
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.
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.
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.
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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) Events 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, the
Adjusted Debt to EBITDA Covenant Ratio requirements of subsection 8.03(e) of the
Credit Agreement, the Debt to EBITDA Covenant Ratio requirements of subsection
8.03(b) of the Credit Agreement, and the Working Capital Ratio requirements of
subsection 8.03(d) 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 FP Commodity Master Trust 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 CORP. XXXXXX SERVICES
(DELAWARE), INC.
by: ____________________________ by: ____________________________
name: name:
title: title:
by: ____________________________ by: ____________________________
name: name:
title: title:
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CANADIAN IMPERIAL BANK OF COMMERCE
(in its capacity
as Administrative Agent)
by: _____________________________
name:
title:
by: _____________________________
name:
title:
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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.
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.
XXXXXX SERVICES (DELAWARE), INC.
LUNTZ CORPORATION
LUNTZ ACQUISITION (DELAWARE) CORPORATION
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC.
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF NEVADA
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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.
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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.
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RHO-CHEM CORPORATION
XXXXX, X.X. DE C.V.
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.
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ONEIDA ASBESTOS REMOVAL, INC.
ONEIDA ASBESTOS ABATEMENT INC.
XXXXXX ENVIRONMENTAL SERVICES, INC.
ACE/ALLWASTE ENVIRONMENTAL SERVICES OF INDIANA, INC.
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.
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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.
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.
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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.
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.
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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.
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.
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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.
RMF INDUSTRIAL CONTRACTING, INC.
RMF ENVIRONMENTAL, INC.
XXXXXX METALS (USA), INC.
ARC DUST PROCESSING (BARBADOS) LIMITED
PHENCORP INTERNATIONAL FINANCE INC.
PHENCORP INTERNATIONAL B.V.
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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.
XXXXXX INTERNATIONAL DEVELOPMENT INC.
CECATUR HOLDINGS
XXXXXX SERVICES (DELAWARE), L.L.C.
CHEMISOLV LIMITED
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XXXXXX INTERNATIONAL DEVELOPMENT INC.
XXXXXX SERVICES INDUSTRIAIS DO BRAZIL LTDA
SERV-TECH EUROPE GMBH
P.S.P.E. SERVICOS PRESTADOS AS EMPRESAS UNIPESSOAL LIMITADA
P.S.C. XXXXXX SERVICES IBERICA, S.L.
2766906 CANADA INC.
721646 ALBERTA LTD.
800151 ONTARIO INC.
912613 ONTARIO LTD.
XXXXXX PLASMA METALS INC.
CALIGO PARTNERSHIP
BY ITS PARTNER ALLWASTE OF CANADA LTD.
DELSAN DEMOLITION LIMITED
NORTRU, LTD.
ALLWASTE PAINT SERVICES S.A. DE C.V.
ALLWASTE SERVICES OF EL PASO, INC.
DEEP CLEAN, INC.
and all other Guarantor Subsidiaries (if any)
in each case by:
___________________________________
Xxxxx Xxxxx
Authorized Signatory
