1
EXHIBIT 10.16
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of April 14, 2000 (this "Amendment") amends
the Amended and Restated Credit Agreement dated as of February 15, 2000 (the
"Credit Agreement") among EarthCare Company (the "Company"), various financial
institutions (the "Banks") and Bank of America, N.A., as Administrative Agent
(in such capacity, the "Administrative Agent"). Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the Company, the Banks and the Administrative Agent have entered
into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 4, the Credit Agreement shall be amended as
follows:
1.1 Amendment of Certain Definitions. The definitions of "Computation
Period," "Leverage Ratio" and "Senior Leverage Ratio" in Section 1.1 of the
Credit Agreement shall be amended in their entireties to read as follows:
Computation Period means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter; provided that for
all periods ending on or prior to December 31, 2000, "Computation Period"
means each of the following periods (a) the period of one Fiscal Quarter
ending on June 30, 2000, (b) the period of two consecutive Fiscal
Quarters ending on September 30, 2000 and (c) the period of three
consecutive Fiscal Quarters ending on December 31, 2000.
Leverage Ratio means, for any Computation Period, the ratio of (a)
the remainder of (i) Adjusted Funded Debt as of the last day of such
Computation Period minus (ii) the amount of collateral held by the Agent
on the last day of such Computation Period securing the Individual
Guaranty provided in accordance with the terms of the Individual Guaranty
to (b) EBITDA for such Computation Period; provided that for the
Computation Periods ending June 30, 2000, September 30, 2000 and December
31, 2000, EBITDA shall be multiplied by 4, 2 and 1a, respectively.
Senior Leverage Ratio means, for any Computation Period, the ratio
of (a) the remainder of (i) Funded Debt as of the last day of such
Computation Period minus Subordinated Debt as of such day minus (ii) the
amount of collateral held by the Agent on the last day of such
Computation Period securing the Individual Guaranty provided in
accordance with the terms of the Individual Guaranty to (b) EBITDA for
such
2
Computation Period; provided that for the Computation Periods ending June
30, 2000, September 30, 2000 and December 31, 2000, EBITDA shall be
multiplied by 4, 2 and 1a, respectively.
1.2 Deletion of "Covenant Change Date" Definition. The definition of
"Covenant Change Date" in Section 1.1 of the Credit Agreement shall be deleted.
1.3 Consolidated Net Worth. Section 10.6.1 of the Credit Agreement shall
be amended in its entirety to read as follows:
10.6.1 Minimum Consolidated Net Worth. Not permit Consolidated Net
Worth at any time to be less than the sum of (a) $22,000,000 plus (b) 75%
of the sum of Consolidated Net Income for each Fiscal Quarter, beginning
with the Fiscal Quarter ending June 30, 2000 and ending with the most
recently-ended Fiscal Quarter for which the Company has delivered
financial statements (provided that, if Consolidated Net Income is less
than zero for any Fiscal Quarter, for purposes of this Section 10.6.1
Consolidated Net Income will be deemed to be zero for such quarter) plus
(c) 75% of the Net Cash Proceeds of any equity issued by the Company or
any of its Subsidiaries (on a consolidated basis) after March 31, 2000.
1.4 Minimum Interest Coverage Ratio. Section 10.6.2 of the Credit
Agreement shall be amended by deleting the chart therein and inserting the
following therefor:
COMPUTATION INTEREST
PERIOD ENDING: COVERAGE RATIO
-------------- --------------
6/30/00 2.00 to 1.0
9/30/00 through 12/31/00 2.50 to 1.0
Thereafter 2.75 to 1.0;
provided that if the Release Date has occurred prior to September 30,
2000, the Company shall not permit the Interest Coverage Ratio for any
Computation Period ended after such occurrence to be less than the
greater of (x) 2.75 to 1.0 or (y) the percentage otherwise applicable to
such Computation Period set forth in the above chart.
1.5 Maximum Leverage Ratio. Section 10.6.3 of the Credit Agreement shall
be amended by deleting the chart therein and inserting the following therefor:
COMPUTATION LEVERAGE
PERIOD ENDING: RATIO
-------------- ---------
6/30/00 4.50 to 1.0
9/30/00 through 12/31/00 4.25 to 1.0
Thereafter 4.00 to 1.0;
2
3
provided that if the Release Date has occurred prior to September 30,
2000, the Company shall not permit the Leverage Ratio for any Computation
Period ended after such occurrence to be greater than the lesser of (x)
4.25 to 1.0 or (y) the ratio otherwise applicable to such Computation
Period set forth in the above chart.
1.6 Maximum Senior Leverage Ratio. Section 10.6.4 of the Credit Agreement
shall be amended by deleting the chart therein and inserting the following
therefor:
COMPUTATION SENIOR
PERIOD ENDING: LEVERAGE RATIO
-------------- --------------
6/30/00 3.70 to 1.0
9/30/00 through 12/31/00 3.25 to 1.0
Thereafter 3.00 to 1.0;
provided that if the Release Date has occurred prior to September 30,
2000, the Company shall not permit the Senior Leverage Ratio for any
Computation Period ended after such occurrence to be greater than the
lesser of (x) 3.25 to 1.0 or (y) the ratio otherwise applicable to such
Computation Period set forth in the above chart.
1.7 Maximum Debt to Capitalization Ratio. Section 10.6.5 of the Credit
Agreement shall be amended by deleting the chart therein and inserting the
following therefor:
DEBT TO
CAPITALIZATION
PERIOD: PERCENTAGE
------- --------------
12/31/99 through 6/30/00 65%
7/1/00 through 12/31/00 60%
1/1/01 and thereafter 55%;
provided that if the Release Date has occurred prior to December 31,
2000, the Company shall not permit the ratio of (a) Adjusted Funded Debt
to (b) the sum of Funded Debt plus Consolidated Net Worth after such
occurrence to be greater than the lesser of (x) 55% or (y) the percentage
otherwise applicable to such period set forth in the above chart.
1.8 Minimum EBITDA. The following Section 10.6.7 shall be added to the
Credit Agreement:
10.6.7 Minimum EBITDA. Not permit EBITDA for any month during the
year 2000 to be less than $1,000,000.
SECTION 2 Waiver. Subject to the satisfaction of the conditions precedent
set forth in Section 4, the Required Banks hereby (i) waive the Company's
non-compliance with Sections
3
4
10.6.1, 10.6.2, 10.6.3, 10.6.4, 10.6.5 and 10.6.6 of the Credit Agreement for
all periods ended on or prior to December 31, 1999 and (ii) agrees that no Event
of Default shall exist under Section 10.1.1 and 10.1.4 of the Credit Agreement
with respect to late delivery of the financial statements and certificate
referred to in such Sections for the Company's Fiscal Year ended December 31,
1999 provided such financial statements are delivered to the Administrative
Agent on or prior to April 14, 2000.
SECTION 3 Representations and Warranties. The Company represents and
warrants to the Administrative Agent and the Banks that, after giving effect to
the effectiveness hereof, (a) each warranty set forth in Section 9 (excluding
Sections 9.6 and 9.8) of the Credit Agreement is true and correct as of the date
of the execution and delivery of this Amendment by the Company, with the same
effect as if made on such date and (b) no Event of Default or Unmatured Event of
Default exists.
SECTION 4 Effectiveness. The amendments set forth in Section 1 above and
the waiver set forth in Section 2 above shall become effective when the
Administrative Agent shall have received (a) counterparts of this Amendment
executed by the Company and the Required Banks, (b) a Confirmation,
substantially in the form of Exhibit A, signed by the Company and each
Subsidiary, (c) an amendment to the Individual Guaranty, substantially in the
form of Exhibit B, signed by Xxxxxx X. Xxxxxxxxx, Xx. and Xxxxxxx X. Xxxx and
(d) a Stock Purchase Warrant, substantially in the form of Exhibit C, signed by
the Company, for each Lender representing the right to purchase such Lender's
Percentage of 10,000 shares of common stock, par value $.01, of the Company.
SECTION 5 Miscellaneous.
5.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Credit Agreement and the other Loan Documents to "Credit
Agreement" or similar terms shall refer to the Credit Agreement as amended
hereby.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such state.
5.4 Successors and Assigns. This Amendment shall be binding upon the
Company, the Banks and the Administrative Agent and their respective successors
and assigns, and shall inure to the benefit of the Company, the Banks and the
Administrative Agent and the respective successors and assigns of the Banks and
the Administrative Agent.
4
5
Delivered at Chicago, Illinois, as of the day and year first above written.
EARTHCARE COMPANY
By
--------------------------------------
Title
---------------------------------
BANK OF AMERICA, N.A., as Administrative
Agent
By
--------------------------------------
Title
---------------------------------
BANK OF AMERICA, N.A., as Issuing Bank
and as a Bank
By
--------------------------------------
Title
---------------------------------
BANKBOSTON, N.A., as Syndication Agent
and as a Bank
By
--------------------------------------
Title
---------------------------------
5
6
Exhibit A
CONFIRMATION
Dated as of April 14, 2000
To: Bank of America, N.A., individually and as Administrative Agent, and the
other financial institutions party to the Credit Agreement referred to
below
Please refer to: (a) the Amended and Restated Credit Agreement dated as
of February 15, 2000 (the "Credit Agreement") among EarthCare Company, various
financial institutions (the "Banks") and Bank of America, N.A., as
Administrative Agent (the "Administrative Agent"); (b) the other "Loan
Documents" (as defined in the Credit Agreement), including the Subsidiary
Guaranty and the Security Agreement; and (c) the First Amendment dated as of
April 14, 2000 to the Credit Agreement (the "First Amendment").
Each of the undersigned hereby confirms to the Administrative Agent and
the Banks that, after giving effect to the First Amendment and the transactions
contemplated thereby, each Loan Document to which such undersigned is a party
continues in full force and effect and is the legal, valid and binding
obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
EARTHCARE COMPANY
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
BONE DRY ENTERPRISES, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
EARTHCARE COMPANY OF FLORIDA
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
7
EARTHCARE COMPANY OF PENNSYLVANIA
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
EARTHCARE COMPANY OF NEW YORK
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
REIFSNEIDER TRANSPORTATION, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
BREHMS CESSPOOL SERVICE, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
EC ACQUISITIONS, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
2
8
SUB-SURFACE LIQUID INJECTION COMPANY, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
MAGNUM ENVIRONMENTAL SERVICES, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
MAGNUM WORLD ENTERPRISES, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
MAGNUM PROPERTY DEVELOPMENT
CORPORATION
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
EARTHCARE COMPANY OF TEXAS
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
3
9
XXXXXX ENVIRONMENTAL SERVICES, INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
XXXX XXXXXX PLUMBING, HEATING & COOLING,
INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
ALL COUNTY RESOURCE MANAGEMENT CORP.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
INTERNATIONAL PETROLEUM CORPORATION
INTERNATIONAL PETROLEUM CORPORATION OF
LA
INTERNATIONAL PETROLEUM CORP. OF
MARYLAND
INTERNATIONAL PETROLEUM CORP. OF
DELAWARE
INTERNATIONAL PETROLEUM OF GEORGIA
INTERNATIONAL PETROLEUM CORP. OF
LAFAYETTE
INTERNATIONAL PETROLEUM CORPORATION OF
PENNSYLVANIA
INTERNATIONAL ENVIRONMENTAL SERVICES,
INC.
By:
------------------------------
Name Printed:
--------------------
Title:
---------------------------
4
