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Exhibit 10.14
AMENDMENT NUMBER TWO TO LOAN AGREEMENT
THIS AMENDMENT NUMBER TWO TO LOAN AGREEMENT (this "Amendment"), dated as of
May 18, 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 by that certain Amendment
Number One to Loan Agreement dated as of March 28, 2001 (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 changes, amend the financial
covenants; 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 5.3 of the Loan Agreement is hereby amended by inserting
the following immediately before the period appearing at the end of said
section:
"; except in each case to the extent that the rights granted
pursuant to the Rights Agreement have been redeemed in accordance with
Section 23 thereof"
(b) Section 7.8(d) of the Loan Agreement is hereby amended by
inserting the following immediately before the period appearing at the end
of said section:
", except that Parent may at any time redeem the rights granted
pursuant to the Rights Agreement in accordance with Section 23
thereof"
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(c) Section 7.10 of the Loan Agreement is hereby 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 $30,000,000 at any
one time outstanding, and (e) the aggregate amount of consigned Inventory
held by Keystone Steel and Wire Company does not exceed $10,000,000 at any
one time outstanding, and the aggregate amount of consigned Inventory held
by any other individual consignee does not exceed $5,000,000 at any one
time outstanding."
(d) Section 7.11 of the Loan Agreement is hereby amended by inserting
the following proviso immediately before the period appearing at the end of
said section:
"provided, however, that, notwithstanding any other provision of
this Agreement or any other Loan Document, Parent may at any time
redeem the rights granted pursuant to the Rights Agreement in
accordance with Section 23 thereof"
(e) 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 $37,600,000
March 31, 2001
for the 12 months ended $44,600,000
June 30, 2001
for the 12 months ended $55,100,000
September 30, 2001
for the 12 months ended $70,200,000
December 31, 2001
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FISCAL QUARTER ENDING MINIMUM EBITDA
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for the 12 months ended $86,200,000
March 31, 2002
for the 12 months ended $94,800,000
June 30, 2002
$95,500,000
for the 12 months ended
September 30, 2002
3. CONDITIONS PRECEDENT TO THIS 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 $700,000 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 A, duly executed and delivered by an
authorized official of each Guarantor;
(d) 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,
except that the documents required to be delivered to the Agent pursuant to
Section 6.3(a) of the Loan Agreement with respect to the month of March 2001
have not yet been delivered; and
(e) 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. CONDITIONS SUBSEQUENT. The satisfaction of the following on or before the
date set forth below shall constitute a condition subsequent to the
effectiveness of this Amendment and each and every provision hereof (the failure
by Borrowers to so perform or cause to be performed constituting an Event of
Default): Agent shall have received a fully executed tri-party blocked account
agreement with respect to each Collection Account (including without limitation
account numbers 74-89218 and 02-87709 at Canadian Imperial Bank of Commerce) on
or before the date which is thirty (30) days after the date of this Amendment.
5. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
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APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6. 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.
7. 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.
8. 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.
[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
RHO-CHEM CORPORATION,
a California corporation
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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 that 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
XXXXXX INDUSTRIAL SERVICES, INC.,
a Delaware corporation a successor in
interest to Xxxxxx Industrial Services
(USA), Inc.
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RMF INDUSTRIAL CONTRACTING, INC.,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President and Treasurer of each
of the above listed entities
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FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. 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 X. Xxxxxx
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Its: Managing Member
FOOTHILL PARTNERS III, L.P.,
a Delaware limited partnership,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
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Its: Managing General Partner
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ABLECO FINANCE LLC,
a Delaware limited liability company,
as a Lender
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President and
Chief Operating Officer
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XXXXXXXXX LLC,
a New York limited liability company,
as a Lender
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President and
Chief Operating Officer
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ARNOS CORPORATION,
a Nevada corporation, as a Lender
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
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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, 2001, as amended by that certain Amendment Number One to Loan Agreement
dated as of March 28, 2001 (as amended, restated, supplemented or otherwise
modified, the "Loan Agreement") or in Amendment Number Two to Loan Agreement,
dated as of May 18, 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 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]
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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: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
XXXXXX ANALYTICAL SERVICES INC.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
XXXXXX INVESTMENT CORP.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
RECYCLAGE D' ALUMINIUM INC.,
a Canadian corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
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ST DELTA CANADA, INC.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
NORTRU, LTD.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
ALLIES STAFFING LTD.,
an Ontario corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
SERVTECH CANADA, INC.,
a Canadian corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Secretary and Treasurer
ARC DUST PROCESSING (BARBADOS) LIMITED,
a Barbados corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
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XXXXXX INTERNATIONAL DEVELOPMENT INC.,
a Barbados corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
