EXHIBIT 10.5
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of February 27,
1998, among ACQUISITION HOLDINGS, INC., a Delaware corporation ("Holdings"), ATC
GROUP SERVICES, INC., a Delaware corporation (the "Borrower"), the bank party to
the Credit Agreement referred to below on the date hereof and immediately before
giving effect to this Amendment (the "Existing Bank"), BANKERS TRUST COMPANY, as
Agent (the "Agent") for the Banks, and each of the lenders listed on Schedule A
hereto (each, a "New Bank" and, collectively, the "New Banks"). All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower (as successor by merger to
Acquisition Corp.), the Existing Bank and the Agent are parties to a Credit
Agreement, dated as of January 29, 1998 (as in effect on the date hereof, the
"Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. The Existing Bank hereby sells and assigns to each New Bank
without recourse and without representation or warranty (other than as expressly
provided herein), and each New Bank hereby purchases and assumes from the
Existing Bank, that interest in and to the Existing Bank's rights and
obligations under the Credit Agreement as of the date hereof which represents
such New Bank's pro rata share (for each such New Bank, its "Pro Rata Share") as
set forth on, and in respect of the credit facilities listed on, Annex A hereto
(calculated after giving affect to this Amendment), and such Pro Rata Share
represents all of the outstanding rights and obligations under the Credit
Agreement that are being sold and assigned to each such New Bank pursuant to
this Amendment.
2. In accordance with the requirements of Section 13.04(b) of
the Credit Agreement, (i) on the Second Amendment Effective Date (as defined
below), the Credit Agreement shall be amended by deleting Schedule I thereto in
its entirety and by inserting in lieu thereof a new Schedule I in the form of
Annex B hereto and (ii) the
Borrower agrees that it will, promptly following the Second Amendment Effective
Date, issue appropriate Notes to each Bank in conformity with the requirements
of Section 1.05 of the Credit Agreement.
3. On and after the Second Amendment Effective Date, the
Credit Agreement shall be further amended by deleting Schedule II thereto in its
entirety and inserting in lieu thereof a new Schedule II in the form of Annex C
hereto.
4. The Existing Bank (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Holdings or
any of its Subsidiaries or the performance or observance by Holdings or any of
its Subsidiaries of any of their respective obligations under the Credit
Agreement or the other Credit Documents to which they are a party or any other
instrument or document furnished pursuant thereto.
5. Each New Bank (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (ii) agrees that it will, independently
and without reliance upon the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Transferee under Section
13.04(b) of the Credit Agreement; (iv) appoints and authorizes the Agent and the
Collateral Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Agent and the Collateral Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank; and (vi)
to the extent relevant, agrees to promptly submit to the Borrower and the Agent
the appropriate Internal Revenue Service Forms described in Section 13.04(b) of
the Credit Agreement.
6. The Existing Bank, the New Banks and the Agent hereby agree
that (x) all amounts accrued with respect to the outstanding Term Loans,
outstanding Revolving
2
Loans and the Total Revolving Loan Commitment prior to the delivery by such New
Bank of the amount referred to in clause (ii) of Section 12 of this Amendment
shall be for the account of the Existing Bank and (y) all such amounts accrued
on and after the delivery of the amount referred to in clause (ii) of such
Section 12 shall be for the account of such New Bank based upon its relevant Pro
Rata Share.
7. In accordance with Section 13.04(b) of the Credit
Agreement, on and as of the date upon which each New Bank delivers the amount
referred to in clause (ii) of Section 12 of this Amendment, such New Bank shall
become a "Bank" under, and for all purposes of, the Credit Agreement and the
other Credit Documents and, notwithstanding anything to the contrary in Section
13.15 of the Credit Agreement, the Agent shall record the transfers contemplated
hereby in the Register.
8. In order to induce the Banks to enter into this Amendment,
each of Holdings and the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Second
Amendment Effective Date, both before and after giving effect to this Amendment;
and
(b) all of the representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct in all
material respects as of the Second Amendment Effective Date, both before and
after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Second Amendment
Effective Date (it being understood that any representations or warranty made as
of a specific date shall be true and correct in all material respects as of such
specific date).
9. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
10. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with Holdings, the Borrower and the Agent.
11. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
3
12. Subject to Section 13 of this Amendment, this Amendment
shall become effective on the date (the "Second Amendment Effective Date") when
(i) Holdings, the Borrower, the Agent, the Existing Bank and each New Bank shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to the Agent at the Notice Office and (ii) each New Bank shall have delivered to
the Agent for the account of the Existing Bank, an amount equal to such New
Bank's relevant Pro Rata Share of the principal amount of the outstanding Loans.
13.. Notwithstanding Section 12 of this Amendment, if for any
reason any New Bank shall not have (i) signed a counterpart hereof and delivered
the same to the Agent at the Notice Office and (ii) delivered to the Agent an
amount equal to such New Bank's Pro Rata Share of the principal amount of the
outstanding Loans, in each case on or prior to February 27, 1998, then, if the
Existing Bank agrees, this Amendment shall become effective notwithstanding such
failure, provided that (x) Annexes A, B and C hereto shall be modified to delete
any such New Bank and such New Bank's Pro Rata Share shall be retained by the
Existing Bank and (y) the signature pages of this Amendment shall be deemed
revised to delete such New Bank's name therefrom.
14. From and after the Second Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
* * *
4
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
ACQUISITION HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxx, Xx.
---------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: President
ATC GROUP SERVICES, INC.
By /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxx Xxxxx
Title: Principal
BANKBOSTON, N.A.
By /s/ Xxxxxxx X. X. Xxxxx
---------------------------
Name: Xxxxxxx X. X. Xxxxx
Title: Managing Director
CREDITANSTALT CORPORATE
FINANCE, INC.
By /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
By /s/ Xxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
5
FLEET CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
LASALLE NATIONAL BANK
By /s/ Xxxxx X. X.
---------------------------
Name: Xxxxx X. M
Title: Commercial Lending
Officer
BANK POLSKAKASOPIEKISA
PEKAO SA GROUP
By /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
6
ANNEX A TO
SECOND AMENDMENT
NEW BANKS PERCENTAGES (1)
BankBoston, N.A. 18.00000000%
Creditanstalt Corporate Finance, Inc. 18.00000000%
Fleet Capital Corporation 18.00000000%
LaSalle National Bank 18.00000000%
Bank Polskakasaopiekisa Pekao SA Group 8.00000000%
----------------------------------------------------------------------
(1) Represents the percentage interest in each of the aggregate
outstanding Term Loans and the Total Revolving Loan Commitment.
ANNEX B TO
SECOND AMENDMENT
COMMITMENTS
Term Loans Revolving Loan
BANK Commitment Commitment
---- ---------- ----------
Bankers Trust Company $4,000,000 $6,000,000
BankBoston, N.A. $3,600,000 $5,400,000
Creditanstalt Corporate Finance, Inc. $3,600,000 $5,400,000
Fleet Capital Corporation $3,600,000 $5,400,000
LaSalle National Bank $3,600,000 $5,400,000
Bank Polskakasaopiekisa Pekao SA Group $1,600,000 $2,400,000
------------ ------------
TOTAL: $20,000,000 $30,000,000
ANNEX C TO
SECOND AMENDMENT
BANK ADDRESSES
Bank Addresses
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
Bank Polskakasaopiekisa 000 Xxxx Xxxxxx Xxxxx
Xxxxx Xx Group 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
BankBoston, N.A. 000 Xxxxxxx Xxxxxx
XX 00-00-00
Boston, Massachusetts 02110-2016
Attn: Xxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Creditanstalt Corporate Finance, Inc. 0 Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Fleet Capital Corporation 000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxx Xxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
LaSalle National Bank 000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
