EXHIBIT 10.17
FOURTH AMENDMENT
FOURTH AMENDMENT (this "Amendment"), dated as of November 19, 2001
among XXXXXX SERVICES CORPORATION, a Delaware corporation (the "Borrower"),
CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders (the
"Administrative Agent"), and the lenders from time to time parties to the
Secured PIK/Term Credit Agreement referred to below (the "Lenders"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Secured PIK/Term Credit Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Credit Agreement, dated as of March 31, 2000, among the Borrower,
the Administrative Agent and the Lenders (as amended, modified or supplemented
through, but not including, the date hereof, the "Secured PIK/Term Credit
Agreement");
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, the
Lenders are willing to grant such amendments.
NOW, THEREFORE, it is agreed:
1. Section 5.16 of the Credit Agreement is hereby amended by inserting
the words "in the United States" after the words "in each jurisdiction" in
clause (ii) of the second sentence thereof.
2. Section 6.17(a) of the Credit Agreement is hereby amended by
deleting the chart contained therein in its entirety and inserting the following
chart in lieu thereof:
Fiscal Quarter Ending | Minimum EBITDA
--------------------- | --------------
|
for the 12 months ended September 30, 2001 | $33,000,000
for the 12 months ended December 31, 2001 | $63,200,000
for the 12 months ended March 31, 2002 | $77,600,000
for the 12 months ended June 30, 2002 | $85,200,000
for the 12 months ended September 30, 2002 | $86,000,000
for the 12 months ended December 31, 2002, |
and for the 12 months ended as of the end |
of each Fiscal Quarter thereafter | $86,400,000
3. Section 6.17(b) of the Credit Agreement is hereby amended by
deleting the chart contained therein in its entirety and inserting the following
chart in lieu thereof:
| Minimum Interest
Fiscal Quarter Ending | Coverage Ratio
--------------------- | --------------
|
for the 12 months ended September 30, 2001 | 1.35: 1.00
for the 12 months ended December 31, 2001 | 1.96: 1.00
for the 12 months ended March 31, 2002 | 2.09: 1.00
for the 12 months ended June 30, 2002 | 2.22: 1.00
for the 12 months ended September 30, 2002 | 2.24: 1.00
for the 12 months ended December 31, 2002, |
and for the 12 months ended as of the end |
of each Fiscal Quarter thereafter | 2.25: 1.00
4. The definition of "Applicable Securities Legislation" in Section 8
of the Credit Agreement is hereby amended by deleting the words "and any
Governmental Authority (whether or not having the force of law) in each of the
Provinces of Canada."
5. The definition of "EBITDA" in Section 8 of the Credit Agreement is
hereby amended by deleting the word "and" at the end of clause (c) and by
inserting the words ", and (e) Special Charges" immediately before the period at
the end of such definition.
6. Section 8 of the Credit Agreement is hereby amended by inserting
the following definition in its proper alphabetical location:
"Special Charges" shall mean one-time charges in the third and fourth
quarters of 2001 not exceeding $25 million in the aggregate and relating to
reserves and provisions for bad debts, restructuring costs, and increased
insurance expenses and reserves.
7. Schedule X of the Credit Agreement is hereby deleted in its
entirety and replaced with the schedule attached hereto and marked "Schedule X."
8. Schedule XXII to the Credit Agreement is hereby amended by adding a
new paragraph 6 as follows:
"6. PSC Industrial Outsourcing, Inc. ("PSIOI", as successor to
Allwaste, Inc.) posted a letter of credit, which is listed on Schedule XXX
hereto, to support Industrial Revenue Bonds issued by the County of
Maricopa, Arizona, to support a water treatment facility constructed by
Resource Recovery Techniques of Arizona, Inc. ("RRTA"). In the event that
RRTA defaults in its obligations under the bonds or fails to pay certain
fees to PSIOI, PSIOI has the right to foreclose on the facility and to
operate it or dispose of it. PSIOI's letter of credit is in the amount of
$3.6 million and its current additional risk
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under the agreement with RRTA includes a receivable from RRTA of in excess
of $400,000."
9. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provisions of the Secured
PIK/Term Credit Agreement or any other Loan Document. All capitalized terms not
defined herein shall have the meaning given to them in the Secured PIK/Term
Credit Agreement.
10. 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 Secured PIK/Term Credit
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) Administrative Agent shall have received, for each Lender who
shall have delivered an executed counterpart of this Amendment to the
Administrative Agent pursuant to paragraph 13 hereof before noon, Eastern
time, on November 19, 2001, an amendment fee of 0.15% on the outstanding
Loans of such Lender;
(c) 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 for any such Defaults or Events of Default that
would exist but for the effectiveness of the amendments to the Credit
Agreement contemplated by this Amendment; and
(d) 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 any Obligor or any Lender.
11. 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 Borrower and the Administrative Agent.
12. 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.
13. This Amendment shall become effective on the date (the "Fourth
Amendment Effective Date") when (i) each of the Borrower and the Required
Lenders 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 Administrative Agent at the Notice Office; and (ii) the
Administrative Agent shall have received an executed copy of the Exit Lenders'
consent to the modification of the Exit Facility (the form and substance of
which shall be satisfactory to the Administrative Agent).
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* * *
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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.
XXXXXX SERVICES CORPORATION
By:
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
As Administrative Agent and Individually
By:
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Title:
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ABN AMRO BANK CANADA
By:
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Title:
By:
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Title:
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AMERICAN REAL ESTATE HOLDINGS L.P.
BY AMERICAN PROPERTY INVESTORS INC.
By:
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Title:
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ACCORD FINANCIAL CORP.
By:
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Title:
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THE BANK OF EAST ASIA (CANADA)
By:
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Title:
By:
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Title:
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BEAR, XXXXXXX & CO. INC.
By:
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Title:
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XXX XXXXX XXXXXXXXX BANK
By:
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Title:
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XXX XXXXX XXXXXXXXX BANK
By:
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Title:
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XXX XXXXX XXXXXXXXX XXXX XX XXXXXX
By:
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Title:
By:
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Title:
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CITIBANK, N.A.
By:
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Title:
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CLARICA LIFE INSURANCE COMPANY
(f/k/a Mutual Life Assurance Company
of Canada)
By:
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Title:
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COMERICA BANK
By:
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Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Title:
By:
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Title:
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MIZUHO BANK (CANADA)
By:
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Title:
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XXX-XXXX XXXXXX XXXX, LTD.,
New York Branch
By:
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Title:
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BT HOLDINGS (NEW YORK), INC.
By:
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Title:
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XXXXX XXXXX MANAGEMENT
By:
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Title:
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FERNWOOD ASSOCIATES L.P.
By:
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Title:
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XXXXXXXX XXXXXXX XXXXXXXXXXX
By:
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Title:
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FOOTHILL PARTNERS IV, LP
by XX XX GP, LLC
By:
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Title:
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HIGH RIVER LIMITED PARTNERSHIP
By Burberry Corp., General Partner
By:
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Title:
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KEY BANK, N.A.
By:
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Title:
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XXXXXXXXX CORP.
By:
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Title:
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XXXXXXXXX LLC
By:
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Title:
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MUTUAL SHARES FUND, A SERIES OF
FRANKLIN MUTUAL SERIES FUND, INC.
By:
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Title:
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BNP PARIBAS
By:
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Title:
By:
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Title:
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XXXXX XXXX XX XXXXXXXX PLC
By:
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Title:
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SOCIETE GENERALE (CANADA)
By:
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Title:
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CERBERUS CAPITAL MANAGEMENT, INC.
By:
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Title:
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WACHOVIA BANK, N.A.
By:
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Title:
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