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Exhibit 10.6
AMENDING AGREEMENT NO. 2
THIS IS AN AMENDING AGREEMENT made as of February 19, 1998 among PHILIP
SERVICES CORP. as a borrower in Canada (the "CDN. BORROWER"), PHILIP SERVICES
(DELAWARE), INC., as a borrower in the United States of America (the "U.S.
BORROWER") and CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent (the
"ADMINISTRATIVE AGENT") on behalf of itself, the Lenders, the Other Agents and
their respective Eligible Affiliates.
WHEREAS:
A. The Cdn. Borrower and the U.S. Borrower, as borrowers (the "BORROWERS"),
the Persons from time to time parties to such agreement as lenders (the
"LENDERS"), the Administrative Agent, as administrative agent for the
Lenders, Bankers Trust Company, as syndication agent, Canadian Imperial
Bank of Commerce and Bankers Trust Company, as co-arrangers, and Dresdner
Bank Canada, Dresdner Bank AG New York Branch and Royal Bank of Canada, as
documentation agents, are parties to a credit agreement dated as of August
11, 1997 as amended by an amending agreement dated as of October 31, 1997
(collectively the "CREDIT AGREEMENT").
B. The Borrowers have requested certain amendments to the Credit Agreement.
C. The Lenders, subject to the conditions set forth in this amending
agreement, have consented to the amendments requested by the Borrowers and
have authorized the Administrative Agent to execute and deliver this
amending agreement to the Borrowers on behalf of itself, the Lenders, the
Other Agents and their respective Eligible Affiliates.
NOW THEREFORE THIS AMENDING AGREEMENT WITNESSES that, in consideration of
the mutual covenants and agreements contained in this amending agreement and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the Borrowers and the Administrative Agent, on behalf of
itself, the Lenders, the Other Agents and their respective Eligible Affiliates,
agree as follows:
ARTICLE ONE
INTERPRETATION
SECTION 1.01 ONE AGREEMENT: This amending agreement amends the Credit
Agreement. This amending agreement and the Credit Agreement shall be read,
interpreted, construed and have effect as, and shall constitute, one agreement
with the same effect as if the amendments made by this amending agreement had
been contained in the Credit Agreement as of the date of this amending
agreement.
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SECTION 1.02 DEFINED TERMS: In this amending agreement, unless something in
the subject matter or context is inconsistent:
(a) terms defined in the description of the parties or in the
recitals have the respective meanings given to them in the
description or recitals, as applicable; and
(b) all other capitalized terms have the respective meanings
given to them in the Credit Agreement as amended by Article Two of
this amending agreement.
SECTION 1.03 HEADINGS: The headings of the Articles and Sections of this
amending agreement are inserted for convenience of reference only and shall not
affect the construction or interpretation of this amending agreement.
SECTION 1.04 REFERENCES: All references to Articles and Sections, unless
otherwise specified, are to Articles and Sections of the Credit Agreement.
ARTICLE TWO
AMENDMENTS
SECTION 2.01 DEFINITIONS: Section 1.01 of the Credit Agreement is amended by:
(a) revising the definition of the term 'Acquisition' to add the
following sentence at the end of such definition:
"For greater certainty the Cdn. Borrower's Safety-Kleen
Equity Investment is an Investment and not an Acquisition."
(b) revising the definition of the term 'Debt' to add the
following words at the end of such definition:
"and provided further that the Designated Subordinated Debt
shall not be included as Debt for the purpose of this
definition.";
(c) revising the definition of the term 'Fixed Charge Ratio' to
read as follows:
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""FIXED CHARGE RATIO" on any day shall mean the ratio of (a)
EBITDA for the Reference Financial Period for such day
decreased by the amount of all Capital Expenditures made by
the Restricted Parties during such Reference Financial Period
to (b) Interest Expense (other than Interest Expense in the
form of capitalized interest on the Designated Subordinated
Debt prior to the time such capitalized interest is paid or
becomes payable) for such Reference Financial Period plus
Restricted Payments on preferred shares of the Cdn. Borrower
made during such Reference Financial Period.";
(d) revising the definition of the term 'Interest Coverage Ratio'
to read as follows:
""INTEREST COVERAGE RATIO" shall mean on any day the ratio of
(a) EBITDA for the Reference Financial Period for such day to
(b) Interest Expense (other than Interest Expense in the form
of capitalized interest on the Designated Subordinated Debt
prior to the time such capitalized interest is paid or
becomes payable) for the Reference Financial Period for such
day.";
(e) revising the definition of the term "Interest Expense" to add
the words 'or Designated Subordinated Debt' after the word "Debt" in
the third and eleventh lines of such definition;
(f) revising the definition of the term 'Net Income' by deleting
the word 'and' in the third last line of such definition and by
adding the following at the end of such definition:
", and (g) with respect to any Financial Quarter ending in
1997, any Inventory Discrepancy Charge to a maximum aggregate
amount for all Financial Quarters ending in 1997 of U.S.
$125,000,000";
(g) revising the definition of the term "Security" to read as
follows:
"SECURITY" shall mean (a) for purposes other than Section
9.03, the Security referred to in Section 6.01 and all
Additional Security, and (b) for the purpose of Section 9.03,
(i) the Security referred to in Section 6.01, and (ii) all
Additional Security held by the Administrative Agent, and
(iii) the right, title and interest of the Administrative
Agent, the Other Agents, the Lenders and their respective
Eligible/Affiliates in and to the Additional Security held by
a security agent or a security trustee for the benefit of such
Persons, the holders of the Designated Subordinated Debt and
the holders of any Debt or credit arrangements refinancing any
Debt under this Agreement or the Designated Subordinated Debt
as contemplated under Section 6.06.
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(h) adding the following new definitions to such Section in the
appropriate alphabetical order:
"ADDITIONAL SECURITY" shall have the meaning specified in
Section 6.06.
"ADJUSTED DEBT TO EBITDA COVENANT RATIO" shall mean, on any
day, the ratio of (a) the sum of (i) Debt and (ii) Designated
Subordinated Debt on such day to (b) EBITDA for the Reference
Financial Period for such day.
"CDN. BORROWER'S SAFETY-KLEEN EQUITY INVESTMENT" shall mean
the U.S. $200,000,000 equity investment to be made by the
Cdn. Borrower or one of its Affiliates in SK Parent Corp
under arrangements which result in each of the Cdn. Borrower,
Apollo Advisors, L.P. and Blackstone Management Associates
III, L.P. (in each case whether directly or through one or
more of their respective Affiliates) holding a one third
equity interest in SK Parent Corp and also result in the
closing under a definitive merger agreement under which a
wholly-owned subsidiary of SK Parent Corp. acquires
Safety-Kleen, Corp. of Elgin Illinois.
"DESIGNATED SUBORDINATED DEBT" shall mean up to U.S.
$210,000,000 of subordinated debt made available by CIBC
Capital Partners to the Cdn. Borrower to finance the Cdn.
Borrower's Safety-Kleen Equity Investment, which subordinated
debt shall be substantially on the terms set forth in the
February 12, 1998 summary of the terms respecting such
subordinated debt titled 'Philip Services Corp. Secured
Debentures' forwarded to the Lenders on February 16, 1998 and
subject to the terms and provisions of a subordination
agreement between the holders of such subordinated debt and
the Administrative Agent in form, scope and substance
satisfactory to the Administrative Agent.
"INVENTORY DISCREPANCY CHARGE" shall mean the one time
year-end charge of U.S. $125,000,000 that the Cdn. Borrower
announced on January 27, 1998 and described in such
announcement as being related in part to a physical inventory
adjustment."
SECTION 2.02 INTEREST: Section 3.01 of the Credit Agreement is amended by
replacing the chart at the end of such Section with the following:
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U.S. BASE U.S. REFERENCE
DEBT TO RATE LOANS RATE LOANS
EBITDA PRICING PRIME RATE LOANS U.S. Base U.S. Reference LIBOR LOANS
ADJUSTMENT RATIO Prime Rate + Rate + Rate + LIBOR +
< 2.0:1 0 bps 0 bps 0 bps 50 bps
< 2.5:1 0 bps 0 bps 0 bps 75 bps
< 3.0:1 0 bps 0 bps 0 bps 100 bps
< 3.5:1 25 bps 25 bps 25 bps 125 bps
< 4.0:1 50 bps 50 bps 50 bps 150 bps
= or > 4.0:1 75 bps 75 bps 75 bps 175 bps
Notwithstanding any other provision of this Agreement, the Applicable
Interest Pricing Adjustment will be reset on February 19, 1998, to be
applicable from and including such date to the next Pricing Adjustment
Date (being April 1, 1998), to the amount indicated above as being
applicable where the Debt to EBITDA Pricing Adjustment Ratio is greater
than 4.0 to 1.0."
SECTION 2.03 FEES FOR BANKERS' ACCEPTANCES AND BA EQUIVALENT NOTES: Section
3.09 of the Credit Agreement is amended by replacing the chart at the end of
such Section with the following:
DEBT TO EBITDA
PRICING ADJUSTMENT APPLICABLE
RATIO STAMPING FEE
< 2.0:1 50 bps
< 2.5:1 75 bps
< 3.0:1 100 bps
< 3.5:1 125 bps
< 4.0:1 150 bps
= or > 4.0:1 175 bps
Notwithstanding any other provision of this Agreement, the Applicable
Stamping Fee
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will be reset on February 19, 1998, to be applicable from and including
such date to the next Pricing Adjustment Date (being April 1, 1998), to
the amount indicated above as being applicable where the Debt to EBITDA
Pricing Adjustment Ratio is greater than 4.0 to 1.0."
SECTION 2.04 FEES FOR LETTERS OF CREDIT: Section 3.10 of the Credit Agreement
is amended by replacing the chart in such Section with the following:
"DEBT TO EBITDA
PRICING ADJUSTMENT APPLICABLE LC FEE
RATIO PRICING RATE
< 2.0:1 50 bps
< 2.5:1 75 bps
< 3.0:1 100 bps
< 3.5:1 125 bps
< 4.0:1 150 bps
= or > 4.0:1 175 bps
Notwithstanding any other provision of this Agreement, the Applicable LC
Fee Pricing Rate will be reset on February 19, 1998, to be applicable
from and including such date to the next Pricing Adjustment Date (being
April 1, 1998), to the amount indicated above as being applicable where
the Debt to EBITDA Pricing Adjustment Ratio is greater than 4.0 to 1.0."
SECTION 2.05 STANDBY FEE: Section 3.11 of the Credit Agreement is amended by
replacing the chart in such Section with the following:
"DEBT TO EBITDA
PRICING ADJUSTMENT APPLICABLE STANDBY
RATIO FEE PRICING RATE
< 2.0:1 20 bps
< 2.5:1 25 bps
< 3.0:1 30 bps
< 3.5:1 35 bps
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< 4.0:1 40 bps
=or > 4.0:1 45 bps
Notwithstanding any other provision of this Agreement, the Applicable
Standby Fee Pricing Rate will be reset on February 19, 1998, to be
applicable from and including such date to the next Pricing Adjustment
Date (being April 1, 1998), to the amount indicated above as being
applicable where the Debt to EBITDA Pricing Adjustment Ratio is greater
than 4.0 to 1.0."
SECTION 2.06 MANDATORY REPAYMENTS: The following Section is added to Article
Four of the Credit Agreement:
"4.07 DESIGNATED SUBORDINATED DEBT
On the date on which any Designated Subordinated Debt is drawn by
the Cdn. Borrower, the limit of the Credit (on a pro rata basis among
Tranches 1, 2 and 3 until the limit of such Tranches is reduced to 0 and
thereafter on a pro rata basis among the remaining Tranches) will be
permanently reduced by an amount equal to the amount of the Designated
Subordinated Debt so obtained on such date (up to an aggregate overall
reduction in the limit of the Credit for all such dates of U.S.
$200,000,000), and each of the Borrowers will repay sufficient
Accommodation under the affected Tranches so that, after giving effect to
such repayment and any concurrent repayments made by the other Borrower,
the U.S. Dollar Amount of the Accommodation then outstanding under each
such Tranche does not exceed the reduced limit of such Tranche."
SECTION 2.07 ADDITIONAL SECURITY: Article Six of the Credit Agreement is
amended by deleting "(collectively the Security)" in lines 5 and 6 of Section
6.01 and by adding the following Section at the end of such Article:
"6.06 FORM OF ADDITIONAL SECURITY
As additional general and continuing security for the due payment and
performance of all present and future indebtedness and liability of the
Borrowers to (w) the Administrative Agent, the Other Agents and the Lenders
under the Credit Documents, (x) the Administrative Agent, the Other Agents, the
Lenders and their respective Eligible Affiliates under all Lender/Borrower
Hedging Arrangements, (y) the holders of the Designated Subordinated Debt, and
(z) the holders of any Debt or credit arrangements refinancing any Debt under
this Agreement or the Designated Subordinated Debt, the following security
(collectively the "ADDITIONAL SECURITY") will be provided, as soon as possible
after February 19, 1998 (and in any event prior to April 15, 1998 or such later
date as the Administrative Agent may from time to time designate with respect
to any particular item or items of Additional Security), to the Administrative
Agent or as provided
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below to a security agent or a security trustee for the benefit of the
Administrative Agent, the Other Agents, the Lenders, their respective Eligible
Affiliates, the holders of the Designated Subordinated Debt and the holders of
any such Debt or credit arrangements refinancing any Debt under this Agreement
or the Designated Subordinated Debt:
(a) an unlimited guarantee and a postponement of
claim from each of the Borrowers;
(b) a general security agreement (and equivalent
security documentation where required in applicable
jurisdictions) from each of the Borrowers constituting a
first-priority Lien (subject only to Permitted Liens) on all
of the present and future property of such Borrower;
(c) an unlimited guarantee and a postponement of
claim from each present and future Restricted Party (other
than a Borrower);
(d) a general security agreement (and equivalent
security documentation where required in applicable
jurisdictions) from each of the Restricted Parties (other than
the Borrowers) constituting a first-priority Lien (subject
only to Permitted Liens) on all of the present and future
property of such Restricted Party;
(e) a securities pledge agreement from each present
and future Restricted Party constituting a first-priority Lien
(subject only to Permitted Liens) on all of the present and
future securities in any and all of their respective present
and future Subsidiaries which are also Restricted Parties,
whether wholly or partially owned, acknowledged by such
Subsidiaries, together with such resolutions and consents as
the Administrative Agent may determine are legally required or
advisable and the security certificates duly issued by each of
such Subsidiaries evidencing such pledge of securities duly
endorsed in blank for transfer;
(f) charge/mortgages of land in a principal amount at
least equal to such principal amount as may be designated by
the Administrative Agent having regard to, among other things,
the amount of the Debt under the Credit Documents, the
apparent value of such real property and the registration
charges relative to the registration of such charge/mortgage
of land against such real property constituting a
first-priority Lien (subject only to Permitted Liens) over all
of the real property owned by the Restricted Parties from time
to time designated in writing by the Administrative Agent;
(g) assignments with appropriate mortgagee clauses of
all insurance held by the Restricted Parties together with
loss payable and standard mortgage clauses in form and content
satisfactory to the Administrative Agent;
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(h) a postponement, subordination and priority agreement from the
holders of Designated Subordinated Debt (or from an agent or
trustee acting on behalf of such holders) postponing and
subordinating all Designated Subordinated Debt from time to
time payable by the Restricted Parties to such holders to all
debts and liabilities from time to time of the Restricted
Parties to the Administrative Agent, the Other Agents, the
Lenders and their Respective Eligible Affiliates under or in
respect of the Credit Documents and the Lender/Borrower
Hedging Arrangements; and
(i) if any of the Additional Security referred to above is to be
held by a security trustee or security agent as provided for
above, a security agency agreement or security trust agreement
between the Borrowers, the applicable security agent or
security trustee, the Administrative Agent (on behalf of the
Administrative Agent, the Other Agents, the Lenders and their
respective Eligible Affiliates) and the holders of Designated
Subordinated Debt (or an agent or trustee acting on behalf of
such holders) in form and substance satisfactory to the
Administrative Agent."
SECTION 2.08 REPRESENTATIONS AND WARRANTIES: Section 7.01 of the Credit
Agreement is amended by adding the following subsection at the end of such
Section:
"(ah) In connection with the Inventory Discrepancy Charge:
(i) the Inventory Discrepancy Charge is related primarily to the
Restricted Parties' copper inventory and primarily to such
copper inventory located at plants of the Restricted Parties
located in Hamilton, Ontario;
(ii) the Restricted Parties no longer engage in trading in copper
except for Hedging Arrangements entered into in accordance
with subsection 8.02(r) to protect against fluctuations in the
price of copper;
(iii) the Restricted Parties have taken internal security and
management control steps to address confirmation of inventory
entering and leaving their premises;
(iv) the aggregate amount of the Inventory Discrepancy Charge, when
conclusively finalized, will not exceed U.S. $125,000,000,
although the amounts of the relative components of the
Inventory Discrepancy Charge may change;
(v) the Inventory Discrepancy Charge will not be included in or
have an impact on the Restricted Parties' cash flow or budget
for the Financial Year ending on December 31, 1998;
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(vi) the issues giving rise to the Inventory Discrepancy Charge do
not exist in, or impact on, any of the other divisions or
operations of the Restricted Parties; and
(vii) the 1997 revenue from the Restricted Parties' Hamilton,
Ontario copper operations constitutes less than 10% of the
overall 1997 revenue of the Restricted Parties.
SECTION 2.09 POSITIVE COVENANTS: Section 8.01 of the Credit Agreement is
amended by:
(a) revising clause 8.01(a)(i)(y) to require the Cdn. Borrower to
deliver to the Administrative Agent prior to March 16, 1998 a copy
of the unaudited consolidated balance sheet of the Cdn. Borrower and
its Subsidiaries as at December 31, 1997, together with the related
unaudited consolidated statements of earnings, changes in financial
position and shareholders' equity of the Cdn. Borrower and its
Subsidiaries for the Financial Year ending on such date, setting
forth in each case in comparative form the figures for the previous
Financial Year and budgeted figures for such Financial Year.
(b) deleting the word 'and' at the end of paragraph 8.01(b)(ix),
changing the '.' at the end of paragraph 8.01(b)(x) to read '; and',
and adding the following paragraph at the end of subsection 8.01(b):
"(xi) prior to April 30, 1998, the Restricted Parties' three year
projections for the 1998, 1999 and 2000 Financial Years of the
Restricted Parties."
(c) adding the following subsections at the end of such Section:
"(x) Designated Subordinated Debt. Comply, and cause the other
Restricted Parties to comply, with the terms and provisions of
the Designated Subordinated Debt and the related subordination
agreement entered into between the Cdn. Borrower, the
Administrative Agent and the holders of the Designated
Subordinated Debt.
(aa) KPMG Report. Take all commercially reasonable
steps to implement, and to cause the other Restricted Parties
to implement, as soon as reasonably possible all
recommendations, if any, which are (i) made by KPMG
Investigation and Security Inc. in its final report (or where
there are separate final reports on different issues, in any
of its final reports) under its February 3, 1998 engagement
letter to Stikeman, Elliott and Blake, Cassels & Graydon, and
(ii) designated by the Administrative Agent, acting
reasonably, as recommendations which should be implemented by
the Restricted Parties.
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SECTION 2.10 NEGATIVE COVENANTS: Section 8.02 of the Credit Agreement is
amended by:
(a) adding the following words at the end of paragraph 8.02(a)(viii):
"provided, however, that if any Designated Subordinated Debt is
drawn by the Cdn. Borrower, Additional Debt may thereafter only be
incurred with the prior written consent of, and subject to any
conditions imposed at the time of the giving of such consent by,
the Required Lenders"
(b) revising subsection 8.02(e) of the Credit Agreement to read as
follows:
"(e) Investments. Make any Investments in any one or
more Persons who are not Wholly-Owned Restricted Parties
except for:
(i) the Cdn Borrower's Safety-Kleen Equity Investment to the
extent it is financed from the proceeds of the
Designated Subordinated Debt; and
(ii) other Investments which do not exceed, in the aggregate
for all such Investments made after the date of this
Agreement and all Financial Assistance given after the
date of this Agreement as permitted under paragraph
8.02(l)(ii) by all Restricted Parties, U.S. $50,000,000
(or the Equivalent Amount in any other currency or
currencies)."
(c) revising subsection 8.02(f) of the Credit Agreement by removing the
word "and" at the end of paragraph 8.02(f)(i), changing the "." at
the end of paragraph 8.02(f)(ii) to read "; and", and adding the
following paragraph at the end of such subsection:
"(iii) the Cdn. Borrower may repay the Designated Subordinated
Debt (including interest thereon) if such repayment is
made in compliance with the provisions of subsection
8.02(u)."
(d) revising subsection 8.02(l) of the Credit Agreement to read as
follows:
"(l) Limitation of Financial Assistance) Limitation of Financial
Assistance. Provide any Financial Assistance to any one or
more Persons which are not Wholly-Owned Restricted Parties
except:
(i) the Cdn Borrower's Safety-Kleen Equity Investment to the
extent it is financed from the proceeds of the
Designated Subordinated Debt; and
(ii) other Financial Assistance which does not exceed, in the
aggregate
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for all such Financial Assistance made after the
date of this Agreement and all Investments given after
the date of this Agreement as permitted under paragraph
8.02(e)(ii) by all Restricted Parties, U.S. $50,000,000
(or the Equivalent Amount in any other currency or
currencies); provided, however, that this limitation
shall not apply to assurances or obligations of
Restricted Parties which are excluded from the
definition of Contingent Obligation pursuant to
paragraph (c) of such definition.
(e) revising subsection 8.02(r) of the Credit Agreement by changing the
"." at the end of such subsection to read ";" and by adding the
following clause after paragraph 8.02(r)(ii) at the end of such
subsection as part of the main paragraph of such subsection:
"provided however, that the provisions of this subsection shall not
apply to any Hedging Arrangements existing prior to December 31, 1997
to the extent that they gave rise to all or any part of the Inventory
Discrepancy Charge."
(f) adding the following new subsections at the end of such Section:
"(s) Standstill Respecting Certain Activities. Notwithstanding any
other provision of this Agreement, at any time between February
9, 1998 and June 30, 1998:
(i) enter into any material Purchase Money Obligation or
Capitalized Lease Obligation otherwise permitted under
subsection 8.02(a);
(ii) make any further Investments under the basket provided
for under paragraph 8.02(e)(ii);
(iii) enter into any further sale and leaseback transactions
otherwise permitted under subsection 8.02(j) other than
a U.S. $25,000,000 pending sale and leaseback
transaction with National City Leasing Corporation;
(iv) make any further Acquisitions otherwise permitted under
subsection 8.02(k);
(v) provide any further Financial Assistance under the
basket provided for under paragraph 8.02(l)(ii); or
(vi) enter into any further arrangements to monetize
inventory otherwise permitted under paragraph
8.02(d)(iv) except for continuations, renewals or
rollovers of inventory monetization arrangements in
existence on February 9, 1998.
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(t) Obtaining Designated Subordinated Debt. Obtain any of the
Designated Subordinated Debt:
(i) unless the holder of such Designated Subordinated Debt
has first entered into a subordination agreement in
form, scope and substance satisfactory to the
Administrative Agent; and
(ii) unless the entire proceeds of such Designated
Subordinated Debt are used only for the purpose of
financing the Cdn. Borrower's Safety-Kleen Equity
Investment and paying the fees associated therewith.
(u) Payment of Designated Subordinated Debt. Make or provide for
any payment of any of the Designated Subordinated Debt at any
time except to the extent that such payment is expressly
permitted under the provisions of the subordination agreement
referred to in paragraph 8.02(t)(i)."
SECTION 2.11 FINANCIAL COVENANTS: Section 8.03 of the Credit Agreement is
amended by deleting the word 'and' at the end of subsection 8.03(c), changing
the '.' at the end of subsection 8.03(d) to read '; and' and adding the
following subsection at the end of such Section:
"(e) will ensure that the Adjusted Debt to EBITDA Covenant Ratio
is at all times:
(1) on or before December 31, 1998, equal to or less than
5.0 to 1.0;
(2) on or after January 1, 1999 and on or before December
31, 1999, equal to or less than 4.75 to 1.0; and
(3) on or after January 1, 2000, equal to or less than 4.5
to 1.0."
SECTION 2.12 EVENTS OF DEFAULT: Section 9.01 of the Credit Agreement is
amended by adding the following subsections at the end of such Section:
"(v) Inventory Discrepancy Charge. If any of the representations
and warranties made in subsection 7.01(ah) are determined by
the Required Lenders to be untrue in any material respect (it
being acknowledged and agreed by the Borrowers that a finding
by KPMG Investigation and Security Inc. pursuant to the
investigation undertaken by it under the February 3, 1998
engagement letter from KPMG Investigation and Security Inc. to
Stikeman, Elliott and Blake, Cassels & Graydon (as the same may
be supplemented or amended from time to time in accordance with
its terms) will be deemed to be conclusive for the purpose of
assessing the truth of any such matter).
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(w) KPMG Report. If the final report of KPMG Investigation and
Security Inc. referred to in subsection 8.01(aa) (or where there are
separate final reports on different issues, any one of such final
reports) or the results of investigations relative to the Inventory
Discrepancy Charge by the Cdn. Borrower, its auditors or KPMG
Investigation and Security Inc. disclose any matter respecting the
Restricted Parties' financial position, performance, accounting or
reporting, or the Restricted Parties' internal controls, management
or governance systems, which matter, in the opinion of the Required
Lenders, (i) is material, and (ii) was not known by such Lenders on
February 19, 1998, and (iii) has had or would have a Material
Adverse Effect.
SECTION 2.13 CONDITIONS PRECEDENT: Section 10.02 of the Credit Agreement is
amended by revising subsection (c) of such Section to read as follows:
"(c) After giving effect to the applicable Borrowing the Borrowers
will continue to be in compliance with the Debt to EBITDA
Covenant Ratio requirements set forth in subsection 8.03(b) and
the Adjusted Debt to EBITDA Covenant Ratio requirements set forth
in subsection 8.03(e), and the applicable Borrower shall have
delivered to the Administrative Agent, if so requested by the
Administrative Agent, an Officer's Certificate to such effect."
SECTION 2.14 SCHEDULES: The Schedules to the Credit Agreement are amended by:
(a) amending Schedule 6 (Permitted Liens) by adding the following
paragraph to such Schedule;
"(y) Liens in favour of the holders of the Designated Subordinated
Debt provided that such Liens:
(i) secure only the Designated Subordinated Debt;
(ii) do not at any time extend to collateral that is not
subject to the Liens created under the Security or the
Additional Security; and
(iii) rank subsequent to all Liens in favour of the
Administrative Agent, the Other Agents, the Lenders and
their respective Eligible Affiliates relative to the
Credit Documents and Lender/Borrower Hedging
Arrangements and are validly subordinated to all such
Liens pursuant to a subordination agreement in form,
scope and substance satisfactory to the Administrative
Agent."
(b) amending Schedule 10 (Form of Notice of Borrowing) by revising
paragraph (iii) on page 3 of such form of Notice of Borrowing to read
as follows:
"(iii) after giving effect to the Borrowing requested under this
Notice of
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Borrowing:
(A) the Debt to EBITDA Covenant Ratio on the Borrowing Date
under this Notice of Borrowing will be less than to
1.0; and
(B) the Adjusted Debt to EBITDA Covenant Ratio on the
Borrowing Date under this Notice of Borrowing will be
less than to 1.0; and"
(c) amending Schedule 21 (Quarterly Compliance Certificate) by adding a
new paragraph 8a to the Quarterly Financial Compliance Certificate
forming part of such Schedule to read as follows:
"8a The Borrower is in compliance with the Adjusted Debt to
EBITDA Covenant Ratio requirements of subsection 8.03(e) of
the Credit Agreement as of the first day following the
Reference Date as demonstrated in the calculations set forth
in Appendix to this Certificate. Debt as of the first
day following the Reference Date was U.S. $ (x), Subordinated
Debt as of the first day following the Reference Date was U.S.
$ (y) and EBITDA for the Reference
Financial Period ended on the Reference Date was U.S. $ (z).
Accordingly the Adjusted Debt to EBITDA Covenant Ratio on
the first day following the Reference Date was ((x)+(y))
divided by (z) which is to 1.0."
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 CONFIRMATION OF REPRESENTATIONS: Each of the Borrowers
represents and warrants that, as at the date of this amending agreement and
assuming that the amendments made to the Credit Agreement by this amending
agreement have become effective, no Default or Event of Default has occurred
and is continuing and the representations and warranties contained in Article
Seven of the Credit Agreement are true and correct.
ARTICLE FOUR
GENERAL
SECTION 4.01 CONFIRMATION: The Credit Agreement, as amended by this amending
agreement, is hereby confirmed by the Borrowers and the Administrative Agent,
on behalf of itself, the Lenders, the Other Agents and their respective
Eligible Affiliates.
SECTION 4.02 BINDING NATURE: This amending agreement shall enure to the
benefit of and be
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binding upon the Borrowers, the Administrative Agent, the Lenders, the Other
Agents, their respective Eligible Affiliates and their respective successors
and permitted assigns.
SECTION 4.03 CONFLICTS: If, after the date of this amending agreement, any
provision of this amending agreement is inconsistent with any provision of the
Credit Agreement the relevant provision of this amending agreement shall
prevail.
SECTION 4.04 LAW OF CONTRACT: This amending agreement shall be governed by
and construed in accordance with the laws of the Province of Ontario and of the
laws of Canada applicable in the Province of Ontario.
SECTION 4.05 COUNTERPART AND FACSIMILE: This amending agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
instrument. Delivery of an executed signature page to this amending agreement
by any party by facsimile transmission shall be as effective as delivery of a
manually executed copy of this amending agreement by such party.
IN WITNESS OF WHICH the Borrowers and the Administrative Agent, on behalf
of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates, have executed this amending agreement as of the date indicated on
the first page of this amending agreement.
PHILIP SERVICES
PHILIP SERVICES CORP. (DELAWARE), INC.
by: __________________________________ by: __________________________________
name: Marvin Boughton name: Marvin Boughton
title: Chief Financial Officer, title: Chief Financial Officer,
Executive Vice President Executive Vice President
by: __________________________________ by: __________________________________
name: Colin Soule name: Colin Soule
title: Executive Vice President, title: Executive Vice President,
General Counsel General Counsel
CANADIAN IMPERIAL BANK OF
COMMERCE (in its capacity
as Administrative Agent)
17
- 17 -
by: __________________________________
name:
title:
ACKNOWLEDGEMENT AND CONFIRMATION
Each of the undersigned consents to the above referenced amendments to the
Credit Agreement and to the Borrowers and the Administrative Agent, on behalf
of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates, entering into this amending agreement and acknowledges and agrees
that all of the guarantees and security delivered by it to any one or more of
the Administrative Agent and the Lenders in connection with, or otherwise
applicable to, the debts and liabilities of itself or either one or both of the
Borrowers to any one or more of the Administrative Agent, the Lenders, the
Other Agents and their respective Eligible Affiliates under, in connection with
or with respect to any one or more of the Credit Agreement, the other Credit
Documents and the Lender/Borrower Hedging Arrangements are hereby ratified and
confirmed and remain in full force and effect notwithstanding the entering into
of this amending agreement by the Borrowers and the Administrative Agent, on
behalf of itself, the Lenders, the Other Agents and their respective Eligible
Affiliates, and notwithstanding the amendments to the Credit Agreement effected
by this amending agreement.
This acknowledgement and confirmation may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument. Delivery of an executed
signature page to this acknowledgement and confirmation by any party by
facsimile transmission shall be as effective as delivery of a manually executed
copy of this acknowledgement and confirmation by such party.
IN WITNESS OF WHICH each of the undersigned have executed this
acknowledgement and confirmation as of the date referred to on the first page
of this amending agreement.
PHILIP INTERNATIONAL DEVELOPMENT INC.
PHENCORP INTERNATIONAL B.V.
PHILIP ENVIRONMENTAL (ATLANTIC) LIMITED
REFLUENT INVESTMENTS LIMITED
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1244764 ONTARIO LIMITED
SCHIFLUENT LIMITED
IVOR SIMMONS FAMILY HOLDINGS INC.
PHILIP INVESTMENT CORP.
CHEM-SERV ASSOCIATES INC.
LYNX ENVIRONMENTAL SERVICES LTD.
PHILIP ANALYTICAL SERVICES CORPORATION
RECYCLAGE D'ALUMINIUM QUEBEC INC./QUEBEC ALUMINUM RECYCLING
INC.
PHILIP ENVIRONMENTAL (ELMIRA) INC.
PHILIP ENTERPRISES INC.
PHILIP ENVIRONMENTAL SERVICES LIMITED
PHENCORP REINSURANCE COMPANY INC.
2766906 CANADA INC.
TARO AGGREGATES LTD.
1233793 ONTARIO INC.
1195613 ONTARIO INC.
842578 ONTARIO LIMITED
ALLWASTE OF CANADA LTD.
CALIGO RECLAMATION LTD.
CALIGO REINGUNGSGES M.B.H.
SERV-TECH CANADA INC.
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ST DELTA CANADA INC.
LUNTZ CORPORATION
RMF GLOBAL, INC.
(the surviving corporation from the merger of RMF
Global, Inc., RMF Industrial Services, Inc. and
RMF Global Management Co., Inc. into Philip
Environmental Services Acquisition Corporation)
RMF INDUSTRIAL CONTRACTING, INC.
RMF ENVIRONMENTAL, INC.
COUSINS WASTE CONTROL CORPORATION
(the surviving corporation from the merger of LWC
Equipment Company, BBC Environmental Enterprises,
Inc. and Cousins Waste Control Corporation into
Philip Environmental Services Acquisition (Ohio)
Corporation)
PEN METALS (DELAWARE), INC.
PHILIP METALS (DELAWARE), INC.
LUNTZ ACQUISITION (DELAWARE) CORPORATION
PHILIP METALS, INC.
PHILIP METALS RECOVERY (USA) INC.
(the surviving corporation from the merger of
Conversion Resources, Incorporated and Warrenton
Resources, Inc. into Philip Metals Recovery (USA)
Inc.)
PHILIP ENVIRONMENTAL OF IDAHO CORPORATION
PHILIP ENVIRONMENTAL (WASHINGTON) INC.
BURLINGTON ENVIRONMENTAL INC.
(a Delaware corporation)
PHILIP ENVIRONMENTAL SERVICES CORPORATION (the
surviving corporation from the
20
- 20 -
merger of Jaca Corp. into Philip Environmental
Services Corporation)
SOLVENT RECOVERY CORPORATION
BURLINGTON ENVIRONMENTAL INC.
(a Washington corporation)
RESOURCE RECOVERY CORPORATION
TERMCO CORPORATION
UNITED DRAIN OIL SERVICE, INC.
GASOLINE TANK SERVICE COMPANY, INC.
PHILIP SERVICES (NEW YORK) INC.
(the surviving corporation from the merger of
Philip Environmental (New York) Inc. into Roth
Bros. Smelting Corp.)
NORTRU, INC.
ALLWORTH, INC.
CHEMICAL RECLAMATION SERVICE, INC.
CYANOKEM INC.
RHO-CHEM CORPORATION
SESSA, S.A. DE C.V.
THERMALKEM INC.
PHILIP INDUSTRIAL SERVICES GROUP, INC.
(formerly Allwaste, Inc.)
PSC ENTERPRISES INC.
(formerly Allquest Enterprises, Inc.)
ALLIES STAFFING, INC.
ALLQUEST CAPITAL, INC.
21
- 21 -
ALLQUEST ENERGY SERVICES, INC.
ALLWASTE TANK CLEANING, INC.
ALLWASTE RECOVERY SYSTEMS, INC.
HYDROWASH RECYCLING SYSTEMS, INC.
ALLWASTE RAILCAR CLEANING, INC.
GRS/LAKE CHARLES, LTD.
GEORGIA RECOVERY SYSTEMS
ALLWASTE ENVIRONMENTAL SERVICES, INC.
CALIGO LTD.
PHILIP PLANT SERVICES, INC.
ALL SAFETY & SUPPLY, INC.
PHILIP SERVICES/LOUISIANA, INC.
(formerly Allwaste Environmental Services of
Louisiana, Inc.)
PHILIP SERVICES/MISSOURI, INC.
(formerly Allwaste Environmental Services of
Missouri, Inc.)
ALLWASTE ACCESS SERVICES, INC.
PHILIP SERVICES/OKLAHOMA, INC.
(formerly Allwaste Environmental Services of
Oklahoma, Inc.)
PHILIP INDUSTRIAL SERVICES OF TEXAS, INC.
(formerly Allwaste Environmental Services of
Texas, Inc.)
ALLWASTE ENVIRONMENTAL SERVICES/SOUTHWEST, INC.
ALLWASTE/NAL, INC.
22
- 22 -
ALLWASTE ENVIRONMENTAL SERVICES/SOUTH CENTRAL,
INC.
ALLWASTE EXPLOSIVE SERVICES, INC.
JAMES & LUTHER SERVICES, INC.
ALLWASTE SERVICES OF EL PASO, INC.
ALLWASTE TEXQUISITION, INC.
ACE/ALLWASTE ENVIRONMENTAL SERVICES OF INDIANA,
INC.
ALLWASTE ENVIRONMENTAL SERVICES OF OHIO, INC.
J.D. MEAGHER/ALLWASTE, INC.
ALLWASTE ENVIRONMENTAL SERVICES/NORTH CENTRAL,
INC.
(an Iowa corporation)
PHILIP SERVICES/NORTH CENTRAL, INC.
(formerly Allwaste Environmental Services/North
Central, Inc.) (an Illinois corporation)
OIL RECYCLING, INC.
PHILIP MID-ATLANTIC, INC.
(formerly Clean America, Inc.)
PHILIP SERVICES/NORTH ATLANTIC, INC.
(formerly Allwaste Environmental Services/North
Atlantic, Inc.)
JESCO INDUSTRIAL SERVICES, INC.
PHILIP/WHITING, INC.
(formerly Allwaste/Whiting, Inc.)
ALLWASTE ENVIRONMENTAL SERVICES/WEST COAST, INC.
23
- 23 -
ALLWASTE TRANSPORTATION AND REMEDIATION, INC.
ALLWASTE OF HAWAII, LTD.
ALLWASTE INTERMOUNTAIN PLANT SERVICES, INC.
ALLSCAFF, INC.
PHILIP SERVICES/CENTRAL FLORIDA, INC.
(formerly Allwaste Environmental Services/Central
Florida, Inc.)
PHILIP SERVICES/ATLANTA, INC.
(formerly Allwaste Environmental Services of
Atlanta, Inc.)
ALLWASTE SERVICES OF CHARLOTTE, INC.
PHILIP SERVICES/MOBILE, INC.
(formerly Allwaste Services of Mobile, Inc.)
PHILIP/BEC, INC.
(formerly BEC/Allwaste, Inc.)
INDUSTRIAL CONSTRUCTION SERVICES COMPANY, INC.
MADSEN-BARR/PHILIP UTILITIES MANAGEMENT
CORPORATION, INC.
(formerly Madsen/Barr-Allwaste, Inc.)
APLC, INC.
ALRC, INC.
AWI/ETSS ACQUISITION, INC.
TIPCO ACQUISITION CORP.
AWI/SOUTHWEST ACQUISITION
24
- 24 -
ALLWASTE SERVICIOS INDUSTRIALES DE CONTROL
ECOLOGICO S.A. DE C.V.
ALLWASTE PAINT SERVICES S.A. DE C.V.
ALLWASTE ASBESTOS ABATEMENT, INC.
ALLWASTE ASBESTOS ABATEMENT HOLDINGS, INC.
ALLWASTE ASBESTOS ABATEMENT OF NEW ENGLAND, INC.
ONEIDA ASBESTOS REMOVAL, INC.
ONEIDA ASBESTOS ABATEMENT INC.
PHILIP ST, INC.
(formerly Serv-Tech, Inc.)
HARTNEY INDUSTRIAL SERVICES CORPORATION
HARTNEY CORPORATION
TOTAL REFRACTORY SYSTEMS, INC.
CON-SEAL, INC.
UNITED INDUSTRIAL MATERIALS, INC.
ADVANCED REFRACTORY SERVICES, INC.
CASTING CONCEPTS, INC.
TURNAROUND MAINTENANCE, INC.
PHILIP ENTERPRISE SERVICE CORPORATION
(formerly Enterprise Service Corporation)
PRS HOLDING, INC.
PHILIP PETRO RECOVERY SYSTEMS, INC.
(formerly Petro Recovery Systems, Inc.)
25
- 25 -
TERMINAL TECHNOLOGIES, INC.
SERV-TECH OF NEW MEXICO, INC.
DM ACQUISITION CORPORATION
DELTA MAINTENANCE, INC.
CHEMISOLV HOLDINGS, INC.
PHILIP CHEMI-SOLV, INC.
(formerly Chemi-Solv, Inc.)
CHEMISOLV LIMITED
PHILIP ST PIPING, INC.
(formerly ST Piping, Inc.)
SERV-TECH EUROPE GMBH
REFINERY MAINTENANCE INTERNATIONAL LIMITED
SERV-TECH SERVICES, INC.
MAC-TECH, INC.
SERV-TECH MEXICANA S DE R.L.
SERV-TECH DE MEXICO S DE R.L.
PHILIP TECHNICAL SERVICES, INC.
(formerly Hill Technical Services, Inc.)
PETROCHEM FIELD SERVICES DE VENEZUELA
PHILIP MECHANICAL SERVICES OF LOUISIANA INC.
(formerly American Mechanical Services, Inc.)
SERV-TECH SUDAMERICANA S.A.
SERV-TECH EPC, INC.
26
- 26 -
SERV-TECH ENGINEERS, INC.
PHILIP F.C. SCHAFFER, INC.
(formerly F.C. Schaffer & Associates, Inc.)
SERV-TECH CONSTRUCTION AND MAINTENANCE, INC.
SERV-TECH INTERNATIONAL SALES
INTSEL SOUTHWEST LIMITED PARTNERSHIP
by all of its partners
PEN METALS (DELAWARE), INC.
PHILIP METALS (DELAWARE), INC.
PHILIP/SECO INDUSTRIES, INC.
(formerly Seco Industries, Inc.)
1247701 ONTARIO INC.
1248076 ONTARIO INC.
INTERMETCO LIMITED
ARC DUST PROCESSING (BARBADOS) LIMITED
HARRINGTON ENGINEERING LIMITED
SPITMAN INDUSTRIE SERVICES B.V.
ALLWASTE TANK SERVICES S.A. DE C.V.
CALIGO DE MEXICO, S.A. DE C.V.
SERV-TECH INTERNATIONAL SALES, INC.
PSC/IML ACQUISITION CORPORATION
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC.
21ST CENTURY ENVIRONMENTAL
27
- 27 -
MANAGEMENT, INC. OF NEVADA
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF
PUERTO RICO
21ST CENTURY ENVIRONMENTAL MANAGEMENT, INC. OF
RHODE ISLAND
CHEMICAL POLLUTION CONTROL, INC. OF FLORIDA
CHEMICAL POLLUTION CONTROL, INC. OF NEW YORK
NORTHLAND ENVIRONMENTAL, INC.
RESI ACQUISITION (DELAWARE) CORPORATION
CHEM-FREIGHT, INC.
REPUBLIC ENVIRONMENTAL RECYCLING (NEW JERSEY),
INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (PENNSYLVANIA),
INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (TECHNICAL
SERVICES GROUP), INC.
REPUBLIC ENVIRONMENTAL SYSTEMS (TRANSPORTATION
GROUP), INC.
D & L INC.
INTERMETCO US INC.
BUTCO INC.
INTERMETCO USA LTD.
GEORGIA TUBULAR PRODUCTS, INC.
MEKLO, INCORPORATED
28
- 28 -
SOUTHEAST ENVIRONMENTAL SERVICES, INC.
ALLSCAFF, INC. (a Tennessee corporation)
PHILIP INDUSTRIAL SERVICES (USA), INC.
PHILIP PLANT SERVICES, INC.
PHILIP METALS, INC.
INDUSTRIAL SERVICES TECHNOLOGIES, INC.
ADVANCED ENVIRONMENTAL SYSTEMS, INC.
ADVANCED ENERGY CORPORATION
INTERNATIONAL CATALYST, INC.
IST HOLDING CORP.
CHEM-FAB, INC.
PIPING HOLDINGS CORP.
PIPING COMPANIES, INC.
PIPING MECHANICAL CORP.
HYDRO-ENGINEERING & SERVICE, INC.
AES ACQUISITION CORP.
PHILIP METALS (USA), INC.
PHILIP SERVICES (PENNSYLVANIA), INC.
29
- 29 -
and all other Guarantor Subsidiaries (if any)
in each case by:
/s/ Colin Soule
____________________________
Colin Soule
Authorized Signatory