EXHIBIT 10.26
AMENDMENT NUMBER ONE TO THE COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
THIS AMENDMENT NUMBER ONE TO THE COLLATERAL AGENCY AND INTERCREDITOR
AGREEMENT (this "Amendment"), dated as of April 12, 2002 among XXXXXX SERVICES
CORPORATION, a Delaware corporation (the "Parent") and each of Parent's
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with the Parent, are referred to hereinafter each individually as a
"Debtor" and individually and collectively, jointly and severally, "Debtors");
FOOTHILL CAPITAL CORPORATION, a California corporation (in its individual
capacity "FOOTHILL"), the Revolver Agent on behalf of the Tranche A Claimants,
the Revolver Agent on behalf of the Tranche B Claimants, the Secured PIK/Term
Agent on behalf of the Secured PIK Claimants, and the Secured PIK/Term Agent on
behalf of the Secured Term Claimants; FOOTHILL, not in its individual capacity,
but solely as collateral agent for the Tranche A Lenders (the "Tranche A
Collateral Agent"); FOOTHILL, not in its individual capacity, but solely as
collateral agent for the Tranche B Lenders (the "Tranche B Collateral Agent");
FOOTHILL, not in its individual capacity, but solely as collateral agent for the
Secured Term Lenders (the "Term Lender Collateral Agent"); and FOOTHILL, not in
its individual capacity, but solely as collateral agent for the Secured PIK
Lenders (the "PIK Lender Collateral Agent"; and the Tranche A Collateral Agent,
the Tranche B Collateral Agent, the Term Lender Collateral Agent and the PIK
Lender Collateral Agent are referred to collectively as the "Collateral
Agents"). Unless otherwise indicated, all capitalized terms used herein and not
otherwise defined herein shall have the respective meanings provided to such
terms in the Intercreditor Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, the Debtors, the Collateral Agents, the Revolver Agent and
the Secured/PIK Term Agent are parties to a Collateral Agency and Intercreditor
Agreement, dated as of March 31, 2000 (as amended, modified or supplemented
through, but not including, the date hereof, the "Intercreditor Agreement");
WHEREAS, each Debtor other than the Revolver Guarantors is a party to
that certain Loan Agreement (the "Revolving Loan Agreement"), dated as of March
31, 2000, with the financial institutions and funds identified therein as the
"Lenders" (consisting of the Tranche A Lenders and the Tranche B Lenders,
collectively, the "Revolver Lenders") and Foothill as arranger and the Revolver
Agent pursuant to which the Revolver Lenders have agreed to make certain
financial accommodations to the Debtors.
WHEREAS, the Parent is party to that certain Credit Agreement (the
"Secured PIK/Term Credit Agreement"), dated as of March 31, 2000, with the
Persons party to the Secured PIK/Term Credit Agreement as lenders (consisting of
the Secured Term Lenders and the Secured PIK Lenders), and Canadian Imperial
Bank of Commerce as administrative agent for the Secured PIK Lenders and the
Secured Term Lenders (collectively, the "Secured PIK/Term Lenders"), pursuant to
which the Secured PIK/Term Lenders have agreed to make certain financial
accommodations to the Parent.
WHEREAS, the Revolver Agent, the Revolver Lenders, and each Debtor
other than the Revolver Guarantors, have entered into that certain Amendment
Number Seven to the Loan Agreement, dated contemporaneously herewith (the
"Seventh Amendment to Revolving Loan Agreement");
WHEREAS, the Parent, the Secured PIK/Term Agent, and the Secured
PIK/Term Lenders have entered into that certain Fifth Amendment and Waiver,
dated contemporaneously herewith (the "Fifth Amendment to the Secured PIK/Term
Credit Agreement");
WHEREAS, the Debtors have requested certain amendments to the
Intercreditor Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties are willing to make such amendments.
NOW, THEREFORE, it is agreed:
1. Section 1 of the Intercreditor Agreement is hereby amended by: (i)
deleting the text "(dealing generally with sales of Assets which do not exceed
$50 million in amount during any rolling 12 month period, and which do not
exceed $10 million in amount in connection with any single Asset sale or series
of related sales of Assets)" appearing in the definition of "Junior Secured
Lender Pre-Authorized Sales" and (ii) deleting the text "$25 million" and
inserting "$5 million" in lieu thereof, and deleting the text "$5 million" and
inserting "$1 million" in lieu thereof, as such text appears in the definition
of "Revolver Lender Pre-Authorized Sales".
2. Section 1 of the Intercreditor Agreement is hereby amended by
amending and restating the definition of "Revolver Obligations" in its entirety
as follows:
"Revolver Obligations" shall mean the "Obligations" (as defined in the
Revolving Loan Agreement) in a principal amount not to exceed
$210,000,000, plus all interest (to the extent accrued on principal of
no more than $210,000,000), fees, expenses and other amounts not
consisting of principal when accrued, whether or not those amounts
have been converted to principal as a result of making Advances under
the Revolver Loan Documents in order to pay such amounts.
3. Section 1 of the Intercreditor Agreement is hereby amended by
inserting each of the following definitions in proper alphabetical order:
"Tranche B Facility" shall have the meaning set forth in the Revolving
Loan Agreement.
"Tranche B-Prime Commitments" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche Sub-B Claimants" means any Person at any time holding all or
any part of the Tranche Sub-B Claims, including any successor,
assignee, or subrogee (but excluding any Debtor).
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"Tranche Sub-B Claims" means any and all "claims" (used in its
broadest sense, as contemplated by and defined in Section 101(5) of
the Bankruptcy Code, but without regard to whether such claim would be
disallowed under the Bankruptcy Code) now or hereafter arising,
existing under or relating to the Revolver Obligations that are
payable to, or for the account of, or owed to, any Tranche Sub-B
Claimant or any other Person on account of the Tranche Sub-B Facility
(including any fees, costs, or expenses under the Revolver Loan
Documents that are identified to the Tranche Sub-B Facility).
"Tranche Sub-B Commitments" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche Sub-B Facility" shall have the meaning set forth in the
Revolving Loan Agreement.
"Tranche Sub-B Obligations" means any and all obligations of any one
or more of Debtors to any one or more of the Tranche Sub-B Claimants
with respect to all or any part of the Tranche Sub-B Claims, including
obligations of payment and obligations of performance, whether joint,
several, or joint and several, whether fixed or indeterminate, due or
not yet due, contingent or non-contingent, matured or unmatured,
liquidated or unliquidated, or disputed or undisputed, whether under a
guaranty, letter of credit reimbursement agreement, or otherwise, and
whether arising under contract, in tort, by law, or otherwise.
4. Section 1 of the Intercreditor Agreement is hereby amended by
deleting each of the following definitions in their entirety: "Tranche B
Availability" and "Tranche B Commitment".
5. Paragraphs a., b. and c. of Section 5 of the Intercreditor
Agreement are hereby amended by deleting said paragraphs in their entirety and
inserting the following new paragraphs a. and b. in lieu thereof:
"a. Distribution of Net Cash Sale Proceeds of Certain Asset Sales
Pre-Authorized by Revolver Lenders, Certain Asset Sales Pre-Authorized
by the Secured Term Lenders and Secured PIK Lenders, Certain Foreign
Subsidiary Proceeds and Certain Forced Disposition Proceeds. The
Debtors have covenanted, pursuant to Section 7.4 of the Revolving Loan
Agreement, that they will not dispose of any of their Assets, other
than pursuant to the "Permitted Dispositions", the "Canadian
Transactions" and the "Permitted Transactions", all as defined in the
Revolving Loan Agreement. The Revolver Lender Pre-Authorized Sales
constitute a portion of such Permitted Dispositions. The Debtors have
covenanted, pursuant to Section 6.04 of the Secured PIK/Term Credit
Agreement, that they will not dispose of any of their Assets, other
than pursuant to the "Permitted Dispositions", the "Canadian
Transactions" and the "Permitted
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Transactions", all as defined in the Secured PIK/Term Credit
Agreement. The Junior Secured Lender Pre-Authorized Sales constitute a
portion of such Permitted Dispositions. So long as no Unmatured Event
of Default or Event of Default is outstanding, the Revolver Lender
Pre-Authorized Sale Proceeds together with the Junior Secured Lender
Pre-Authorized Sales Proceeds, Foreign Subsidiary Proceeds and Forced
Disposition Proceeds shall be distributed at the sole and exclusive
direction and instructions of the Representative of the class of
Claimants (in accordance with whatever governance procedure is
applicable to their rights inter se) holding the first lien on or
security interest in such Collateral at the time of such sale (with a
mandatory reduction in the Tranche Sub-B Commitments to the extent the
Net Cash Proceeds of such sale are utilized to pay principal of the
Tranche Sub-B Obligations); provided, however that any Net Cash
Proceeds required to be paid by Revolver Agent to Secured PIK/Term
Agent pursuant to Section 2.5(b)(i)(Y) of the Revolving Loan Agreement
shall be applied by Secured PIK/Term Agent to pay the Secured Term
Obligations and the Secured PIK Obligations, with such payments to be
applied to amounts coming due thereon in the order of maturity.
b. Permitted Distress Sales; Distribution of Undistributed Proceeds.
If a Revolver Event of Default is outstanding, any consent required
under the terms of the Underlying Transactional Documents to Revolver
Lender Pre-Authorized Sales or Junior Secured Lender Pre-Authorized
Sales shall be given or withheld at the sole and exclusive direction
and instructions of the Representative of the class of Claimants (in
accordance with whatever governance procedure is applicable to their
rights inter se) holding the first lien on or security interest in the
Collateral (if such consent is given, "Permitted Distress Sales"). No
less than 75% of the Revolver Lender Pre-Authorized Sales Proceeds,
Junior Secured Lender Pre-Authorized Sales Proceeds, Foreign
Subsidiary Proceeds or Forced Disposition Proceeds not distributed
under subparagraph a above (because such proceeds have been received
during the existence of an Unmatured Revolver Event of Default or
Revolver Event of Default) and Net Cash Proceeds of such Permitted
Distress Sales shall be applied to the Claims held by the lender group
holding the first lien on or security interest in such Collateral at
the time of the receipt of such proceeds (with a commensurate
reduction in the Revolver Commitments (with the reductions as between
the Tranche A Commitments, the Tranche B-Prime Commitments, and the
Tranche Sub-B Commitments to be as provided in the Revolver Loan
Documents) to the extent such proceeds are utilized to pay principal
of the Revolver Obligations), until such Claims are paid in full. Such
lender group shall determine the distribution of the remaining 25% of
such proceeds."
6. Paragraphs d. and e. of Section 5 of the Intercreditor Agreement
are hereby amended by renaming them paragraphs "c." and "d." respectively.
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7. Section 28 of the Intercreditor Agreement is hereby amended by
inserting the following text immediately following the second clause in Section
28:
"provided, further, that Section 2.5(b)(i)(Y) of the Revolving Loan
Agreement may not be amended without the express written consent of
the Secured PIK/Term Agent as may be granted in accordance with the
terms of the Secured PIK/Term Credit Agreement;"
8. Pursuant to paragraph 28 of the Intercreditor Agreement, the
Secured PIK/Term Agent hereby consents, as instructed by the Required Lenders
(as such term is defined in the Secured PIK/Term Credit Agreement) pursuant to
paragraph 10 of the Fifth Amendment to the Secured PIK/Term Credit Agreement to
the amendment to sub-paragraph (i) of the definition of Permitted Dispositions
set forth in the Revolving Loan Agreement as set forth in the Seventh Amendment
to Revolving Loan Agreement.
9. Pursuant to paragraph 28 of the Intercreditor Agreement, the
Revolver Agent hereby consents, as instructed by the Required Lenders (as such
term is defined in the Revolving Loan Agreement) pursuant to Section 4(b) of the
Seventh Amendment to Revolving Loan Agreement, to the amendment to sub-paragraph
(i) of the definition of Permitted Dispositions set forth in the Secured
PIK/Term Credit Agreement as set forth in the Fifth Amendment to the Secured
PIK/Term Credit Agreement .
10. The Debtors hereby represent and warrant to the Secured PIK/Term
Agent, the Revolver Agent and each of the Collateral Agents that both before and
after giving effect to this Amendment (x) no unwaived Event of Default exists on
the Amendment Effective Date (as defined below) and (y) all of the
representations and warranties contained in the Revolver Loan Documents and the
Secured PIK/Term Loan Documents (other than with respect to events that have
been expressly consented to in writing by the Secured PIK/Term Lenders since the
date on which such representations and warranties were first made) shall be true
and correct in all material respects on and before the Amendment Effective Date
with the same effect as though such representations and warranties had been made
on and as of such date (it being understood that any representation or warranty
made as of a specific date shall be true and correct in all material respects as
of such specific date).
11. This Amendment is limited as specified and shall not constitute a
modification, amendment or waiver of any other provision of any other Revolver
Loan Document or Secured PIK/Term Loan Document.
12. 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 the Debtors, the Collateral Agents, the
Revolver Agent and the Secured PIK/Term Agent.
13. 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.
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14. This Amendment shall become effective on the date (the "Amendment
Effective Date") when each of the signatories shall have signed a copy hereof
(whether the same or different copies) and, in each case, shall have delivered
(including by way of telecopier) the same to the Revolver Agent and the Secured
PIK/Term Agent at the respective addresses specified in the signature pages
herein.
* * *
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IN WITNESS WHEREOF, the parties hereto have entered into this
Amendment as of the date first set forth above, intending to be legally bound
hereby.
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
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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
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RHO-CHEM CORPORATION,
a California corporation
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
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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
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: /s/ Xxxxxx X. X'Xxxxx, Xx.
-------------------------------------------------
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
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XXXXXXXX XXXXXXX XXXXXXXXXXX, a California
corporation, as the Revolver Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
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CANADIAN IMPERIAL BANK OF COMMERCE,
as the Secured PIK/Term Agent
By /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: General Manager
Address for notices:
Xxxxxxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attn: Risk Management Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FOOTHILL CAPITAL CORPORATION,
a California corporation, as
Tranche A Collateral Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
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XXXXXXXX XXXXXXX XXXXXXXXXXX, a California
corporation, as Tranche B Collateral Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
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XXXXXXXX XXXXXXX XXXXXXXXXXX, a California
corporation, as PIK Lender Collateral Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
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XXXXXXXX XXXXXXX XXXXXXXXXXX, a California
corporation, as Term Lender Collateral Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address for notices:
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attn: Business Finance Division Manager
Facsimile: (000) 000-0000
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