EXHIBIT 10.50B
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
This Amendment is made and entered into as of the 15th day of October,
2002, by and between WELLS FARGO BANK, NATIONAL ASSOCIATION, successor to First
Security Bank ("Bank"), and AMERICAN ECOLOGY CORPORATION, a Delaware corporation
("Borrower").
R E C I T A L S
A. Borrower and Bank entered into a Credit Agreement, dated as
of August 17, 2000 (as amended, modified, or supplemented from time to time, the
"Credit Agreement").
B. Borrower has asked Bank to amend the Credit Agreement to extent
the maturity date and adjust the interest rate.
C. Bank is willing to amend the Credit Agreement upon the terms
and conditions of this Amendment.
A M E N D M E N T
NOW, THEREFORE, the parties agree as follows.
1. DEFINITIONS
Except as specifically defined otherwise in this Amendment, all of the
terms herein shall have the same meaning as contained in the Credit Agreement.
2. AMENDMENTS
A. AMENDMENTS TO ARTICLE 1 - DEFINITIONS.
(i) The definition of "Commitment Amount" in Section 1.1
of the Credit Agreement is amended to decrease the amount to $6,000,000 and
shall provide in its entirety as follows:
"COMMITMENT AMOUNT" means Six Million Dollars ($6,000,000), less
(i)the aggregate stated amount of all Letters of Credit then outstanding
and available for drawing, and (ii) the aggregate amount of unreimbursed
drawings on Letters of Credit.
(ii) The definition of "Guarantor" in Section 1.1 of the
Credit Agreement is amended to reflect the dissolution of several guarantors and
shall provide in its entirety as follows:
FOURTH AMENDMENT TO CREDIT AGREEMENT - 1
"GUARANTOR" means, jointly and severally, US Ecology, Inc., a
California corporation, Texas Ecologists, Inc., a Texas corporation,
American Ecology Recycle Center, Inc., a Delaware corporation,
American Ecology Environmental Services Corporation, a Texas
corporation, American Ecology Management Corporation, a Delaware
corporation, American Ecology Services Corp., a Delaware corporation,
and US Ecology Idaho, Inc., a Delaware corporation.
(iii) The definition of "Letter of Credit Commitment
Amount" in Section 1.1 of the Credit Agreement is amended to adjust the amount
of Revolving Loans that will reduce the Letter of Credit Commitment Amount to
reflect the decrease in the Commitment Amount and shall provide in its entirety
as follows:
"LETTER OF CREDIT COMMITMENT AMOUNT" means Three Million Dollars
($3,000,000), less the amount of the outstanding principal balance of
the Revolving Loans in excess of Three Million Dollars ($3,000,000).
(iv) The definition of "Maturity Date" in Section 1.1 of
the Credit Agreement is amended to extend the date to June 15, 2004, and shall
provide in its entirety as follows:
"MATURITY DATE" means June 15, 2004, or such other date as Bank
and Borrower may agree upon in writing from time to time.
B. AMENDMENTS TO ARTICLE 2 - LOANS AND TERMS OF PAYMENT.
(i) Subsection 2.1.2 of the Credit Agreement is amended
to modify the interest rate for the Revolving Loans, and shall provide in its
entirety as follows:
2.1.2 INTEREST ON THE REVOLVING LOANS. Each Revolving Loan shall
be a Prime Loan or a LIBOR Loan, as selected by Borrower in accordance with
the terms of this Agreement.
2.1.2.1 Each Revolving Loan that is a Prime Loan shall
bear interest at a fluctuating per annum rate equal to the Prime Rate
increased by the applicable Prime Margin set forth below. Bank's Prime Rate
may change from time to time, and the interest payable will continue to
fluctuate at the rate as stated herein. Any changes to the Prime Rate shall
become effective without prior notice to Borrower on the date on which the
Prime Rate changes.
2.1.2.2 Each Revolving Loan that is a LIBOR Loan shall
bear interest at a fluctuating per annum rate equal to the Adjusted LIBOR
Interest Rate for the applicable Interest Period, as quotes are available,
increased by the applicable LIBOR Margin set forth below. Any changes to
the LIBOR Margin shall not apply to LIBOR Loans outstanding or requested
on the date the LIBOR Margin is adjusted.
FOURTH AMENDMENT TO CREDIT AGREEMENT - 2
2.1.2.3 The Prime Margins, the LIBOR Margins, the
Commitment Margins, and the L/C fees are as follows:
FUNDED DEBT RATIO PRIME LIBOR COMMITMENT L/C FEE
------------------------ ------- ------- ----------- --------
less than 1.00:1.00 0.0% 2.00% 0.15% 1.25%
------------------------ ------- ------- ----------- --------
less than 2.00: 1.00 but 0.125% 2.25% 0.25% 1.375%
greater than or equal to
1.00:1.00
------------------------ ------- ------- ----------- --------
less than 3.00: 1.00 but 0.25% 2.50% 0.30% 1.50%
greater than or equal to
2.00:1.00
------------------------ ------- ------- ----------- --------
less than 3.50: 1.00 but 0.50% 2.75% 0.40% 1.75%
greater than or equal to
3.00:1.00
------------------------ ------- ------- ----------- --------
less than or equal to 1.00% 3.25% 0.50% 2.00%
4.00: 1.00 but greater
than or equal to
3.50:1.00
------------------------ ------- ------- ----------- --------
greater than 4.00: 1.00 1.00%* 3.25%* 0.50% 2.00%
------------------------ ------- ------- ----------- --------
*Plus increase for an Event of Default pursuant to Section 2.5, if applicable.
2.1.2.4 The Prime Margin, LIBOR Margin, Commitment
Margin, and L/C Fee shall be based upon the Borrower's Funded Debt Ratio
(defined in paragraph 2.1.2.5) determined on a rolling four quarter basis
from the Borrower's financial statements delivered to Bank and adjusted, if
necessary, on the first day of the second month after Bank's receipt of
financial statements that show an adjustment is necessary.
2.1.2.5 Borrower's Funded Debt Ratio shall be the ratio
of Borrower's Funded Debt to EBITDA. The term "Funded Debt" shall mean, as
of the date of determination as applied to Borrower, the sum of (i) all
indebtedness of Borrower owing to third parties for money borrowed,
including capitalized leases of Borrower having a final maturity of one (1)
year or more from the date of creation (including that portion of the
principal of such indebtedness due within one (1) year from the date of
such determination), (ii) any indebtedness of the Borrower having a final
maturity within one (1) year from such date which may be renewed or
extended at the option of the Borrower for more than one (1) year from such
date, (iii) the outstanding balance of the Revolving Loans, (iv) all
obligations for the deferred purchase price of any property or assets,
including, without limitation, operating leases for such purpose (excluding
trade payables), (v) all obligations for deferred closure/post closure, and
(vi) all obligations of Borrower created or arising with respect to
property or assets acquired under any conditional sales contract or other
title retention agreement or incurred as financing, less the amount of
Borrower's short term investments as of the date of determination. The term
"EBITDA" shall mean,
FOURTH AMENDMENT TO CREDIT AGREEMENT - 3
for any period, as applied to Borrower, the sum of Borrower's earnings,
excluding any extraordinary and nonoperating income, before (a) interest
expense, (b) depreciation, (c) dividends, (d) taxes, (e) amortization, and
(f) other noncash charges.
(ii) Subsection 2.6.4 of the Credit Agreement is amended
to have the interest for all Loans computed on the basis of a 360-day year, and
shall provide in its entirety as follows:
2.6.4 The actual interest to be charged on the Loans shall be
calculated daily on the outstanding balance for the actual number of days
elapsed on the basis of a year consisting of 360 days. Should the rate of
interest exceed that allowed by law, the applicable rate of interest will
be the maximum rate of interest lawfully allowed. The principal amount
outstanding on which the interest rate(s) shall be charged shall be
determined from the Bank's records, which shall at all times be conclusive,
absent manifest error.
C. AMENDMENTS TO ARTICLE 5 - AFFIRMATIVE COVENANTS.
(i) Subsection 5.8.2 of the Credit Agreement is amended
to require a Borrowing Base Certificate only when the outstanding borrowings
exceed 60% of Borrower's net accounts receivable, and shall provide in its
entirety as follows:
5.8.2 BORROWING BASE CERTIFICATE. Borrower shall furnish to
Bank on or before the 20th day of each month reporting as of the end of the
last Business Day of the prior month statements of accounts receivable
aging and a certificate setting forth information with respect to the
Borrowing Base, executed and certified as accurate by an authorized officer
of Borrower. The certificate shall be in substantially the form attached to
the Agreement as EXHIBIT 5.8.2 or such other form as Borrower and Bank may
agree upon in writing. Borrower shall not be required to furnish Bank the
statements and certificates required by this subsection on any reporting
date if the aggregate total of the Revolving Loans and the Letters of
Credit on such date does not exceed 60% of the amount of Borrower's net
accounts receivable as reported in the most recent SEC Report or Annual
Financial Statements of Borrower furnished to Bank.
(ii) Subsection 5.8.8 of the Credit Agreement is amended
to establish an absolute date by which a coy of Borrower's 1OQ reports must be
furnished to Bank, and shall provide in its entirety as follows:
5.8.8 SEC REPORTS. Borrower shall furnish to Bank as soon as
possible and in any event within five (5) Business Days after the filing
thereof, copies of all regular, periodic, and special reports, and all
registration statements that the
FOURTH AMENDMENT TO CREDIT AGREEMENT - 4
Borrower or any Subsidiary files with the Securities and Exchange
Commission or any governmental authority that may be substituted therefor,
or with any national securities exchange, including, without limitation,
10Q, 10K, and 8K reports. Notwithstanding anything in this Agreement to the
contrary, Borrower furnish Bank with a copy of Borrower's 10Q report no
later than 45 days after the end of each fiscal quarter.
D. AMENDMENTS TO ARTICLE 7 - FINANCIAL COVENANTS.
Article 7 of the Credit Agreement is amended by the addition
of a new Section 7.4 to establish a maximum Funded Debt Ratio to be maintained
by Borrower, and the section shall provide in its entirety as follows:
7.4 FUNDED DEBT RATIO.
Borrower shall maintain at the end of each fiscal quarter and each
fiscal year a Funded Debt Ratio (as defined in Paragraph 2.1.2.5) of not
greater than 4.00 to 1.00.
E. AMENDMENTS TO ARTICLE 9 - BANK'S RIGHTS AND REMEDIES.
Article 9 of the Credit Agreement is amended by the addition
of a new Section 9.4 to establish procedure for resolution of disputes through
arbitration, and the section shall provide in its entirety as follows:
9.4 ARBITRATION.
9.4.1 ARBITRATION. The parties shall, upon demand by any
party, submit to binding arbitration all claims, disputes and controversies
between or among them (and their respective employees, officers, directors,
attorneys, and other agents), whether in tort, contract or otherwise
arising out of or relating to in any way (i) the Loans and the Loan
Documents and their negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution,
formation, inducement, enforcement, default or termination; or (ii)
requests for additional credit.
9.4.2 GOVERNING RULES. Any arbitration proceeding will (i)
proceed in a location in Idaho selected by the American Arbitration
Association ("AAA"); (ii) be governed by the Federal Arbitration Act (Title
9 of the United States Code), notwithstanding any conflicting choice of law
provision in any of the documents between the parties; and (iii) be
conducted by the AAA, or such other administrator as the parties shall
mutually agree upon, in accordance with the AAA's commercial dispute
resolution procedures, unless the claim or counterclaim is at least
$1,000,000.00 exclusive of claimed interest, arbitration fees and costs in
which case the arbitration shall be conducted in accordance with the AAA's
optional procedures
FOURTH AMENDMENT TO CREDIT AGREEMENT - 5
for large, complex commercial disputes (the commercial dispute resolution
procedures or the optional procedures for large, complex commercial
disputes to be referred to, as applicable, as the "Rules"). If there is any
inconsistency between the terms hereof and the Rules, the terms and
procedures set forth herein shall control. Any party who fails or refuses
to submit to arbitration following a demand by any other party shall bear
all costs and expenses incurred by such other party in compelling
arbitration of any dispute. Nothing contained herein shall be deemed to be
a waiver by any party that is a bank of the protections afforded to it
under 12 U.S.C. Sec.91 or any similar applicable state law.
9.4.3 NO WAIVER OF PROVISIONAL REMEDIES, Self-Help and
Foreclosure. The arbitration requirement does not limit the right of any
party to (i) foreclose against real or personal property collateral; (ii)
exercise self-help remedies relating to collateral or proceeds of
collateral such as setoff or repossession; or (iii) obtain provisional or
ancillary remedies such as replevin, injunctive relief, attachment or the
appointment of a receiver, before during or after the pendency of any
arbitration proceeding. This exclusion does not constitute a waiver of the
right or obligation of any party to submit any dispute to arbitration or
reference hereunder, including those arising from the exercise of the
actions detailed in sections (i), (ii) and (iii) of this paragraph.
9.4.4 ARBITRATOR QUALIFICATIONS AND POWERS. Any arbitration
proceeding in which the amount in controversy is $5,000,000.00 or less will
be decided by a single arbitrator selected according to the Rules, and who
shall not render an award of greater than $5,000,000.00. Any dispute in
which the amount in controversy exceeds $5,000,000.00 shall be decided by
majority vote of a panel of three arbitrators; provided however, that all
three arbitrators must actively participate in all hearings and
deliberations. The arbitrator will be a neutral attorney licensed in the
State of Idaho or a neutral retired judge of the state or federal judiciary
of Idaho, in either case with a minimum of ten years experience in the
substantive law applicable to the subject matter of the dispute to be
arbitrated. The arbitrator will determine whether or not an issue is
arbitratable and will give effect to the statutes of limitation in
determining any claim. In any arbitration proceeding the arbitrator will
decide (by documents only or with a hearing at the arbitrator's discretion)
any pre-hearing motions which are similar to motions to dismiss for failure
to state a claim or motions for summary adjudication. The arbitrator shall
resolve all disputes in accordance with the substantive law of Idaho and
may grant any remedy or relief that a court of such state could order or
grant within the scope hereof and such ancillary relief as is necessary to
make effective any award. The arbitrator shall also have the power to award
recovery of all costs and fees, to impose sanctions and to take such other
action as the arbitrator deems necessary to the same extent a judge could
pursuant to the Federal Rules of Civil Procedure, the Idaho Rules of Civil
Procedure or other applicable law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. The institution
and maintenance of an action for
FOURTH AMENDMENT TO CREDIT AGREEMENT - 6
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests
such action for judicial relief.
9.4.5 DISCOVERY. In any arbitration proceeding discovery
will be permitted in accordance with the Rules. All discovery shall be
expressly limited to matters directly relevant to the dispute being
arbitrated and must be completed no later than 20 days before the hearing
date and within 180 days of the filing of the dispute with the AAA. Any
requests for an extension of the discovery periods, or any discovery
disputes, will be subject to final determination by the arbitrator upon a
showing that the request for discovery is essential for the party's
presentation and that no alternative means for obtaining information is
available.
9.4.6 CLASS PROCEEDINGS AND CONSOLIDATIONS. The resolution
of any dispute arising pursuant to the terms of this Agreement shall be
determined by a separate arbitration proceeding and such dispute shall not
be consolidated with other disputes or included in any class proceeding.
9.4.7 PAYMENT OF ARBITRATION COSTS AND FEES. The arbitrator
shall award all costs and expenses of the arbitration proceeding.
9.4.8 REAL PROPERTY COLLATERAL. Notwithstanding anything
herein to the contrary, no dispute shall be submitted to arbitration if the
dispute concerns indebtedness secured directly or indirectly, in whole or
in part, by any real property unless (i) the holder of the mortgage, lien
or security interest specifically elects in writing to proceed with the
arbitration, or (ii) all parties to the arbitration waive any rights or
benefits that might accrue to them by virtue of the single action rule
statute of Idaho, thereby agreeing that all indebtedness and obligations of
the parties, and all mortgages, liens and security interests securing such
indebtedness and obligations, shall remain fully valid and enforceable.
9.4.9 MISCELLANEOUS. To the maximum extent practicable, the
AAA, the arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing of the
dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except
for disclosures of information by a party required in the ordinary course
of its business or by applicable law or regulation. If more than one
agreement for arbitration by or between the parties potentially applies to
a dispute, the arbitration provision most directly related to the Loan
Documents or the subject matter of the dispute shall control. This
arbitration provision shall survive termination, amendment or expiration of
any of the Loan Documents or any relationship between the parties.
FOURTH AMENDMENT TO CREDIT AGREEMENT - 7
3. CONDITIONS PRECEDENT
As conditions precedent to Bank's obligation to extend the financial
accommodations provided for in this Amendment, Borrower shall execute and
deliver, or cause to be executed and delivered, to Bank, in form and substance
satisfactory to Bank and its counsel, the following:
A. REVOLVING NOTE.
The new Revolving Note required by this Amendment in
substantially the form attached as Exhibit 3A, duly executed by Borrower.
B. EVIDENCE OF ALL CORPORATE ACTION BY BORROWER.
Certified copies of all corporate action taken by Borrower
authorizing its execution and delivery of this Amendment and each other document
to be delivered pursuant to this Amendment and its performance of its agreements
thereunder.
C. CERTIFICATES OF EXISTENCE.
Certificates of good standing or existence that Bank may
reasonably require showing that Borrower is in good standing under the laws of
the state of its incorporation.
D. PUBLIC RECORD SEARCHES.
Uniform Commercial Code financing statement searches, federal and
state income tax lien searches, judgment or litigation searches, or other
similar searches that Bank may reasonably require and in such form as Bank may
reasonably require.
E. PAYMENT OF LOAN AMENDMENT FEE.
Payment of the Loan Amendment Fee as required by Section 4 of
this Amendment.
F. ADDITIONAL DOCUMENTATION.
Such other approvals, opinions, or documents as Bank may
reasonably request.
4. LOAN AMENDMENT FEE.
Upon the execution of this Amendment, Borrower shall pay Bank a loan
amendment fee of Twelve Thousand Dollars ($12,000.00). The fee shall represent
an unconditional payment to Bank in consideration of Bank's agreement to extend
financial accommodations to Borrower pursuant to this Amendment.
FOURTH AMENDMENT TO CREDIT AGREEMENT - 8
5. REAFFIRMATION OF LOAN DOCUMENTS.
Borrower acknowledges and reaffirms all existing security agreements,
financing statements, and any other documents executed in connection with the
Credit Agreement. Borrower further acknowledges and agrees that the Obligations
shall be secured by all collateral to be granted by Borrower to secure a
proposed term loan from Bank to Borrower.
6. BORROWER'S COVENANTS, REPRESENTATIONS, AND WARRANTIES.
In order to induce Bank to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Borrower acknowledges and
reaffirms as true, correct, and complete in all material respects on and as of
the date of this Amendment all covenants, representations, and warranties made
by Borrower in the Credit Agreement and the other Loan Documents to the same
extent as though made on and as of the date of execution of this Amendment.
Borrower represents and warrants that the execution, delivery, and performance
by the Borrower of this Amendment has been duly authorized by all necessary
corporate action. Borrower further represents and warrants that there are no
Events of Default or facts which constitute, or with the passage of time and
without change will constitute, an Event of Default under the Loan Documents.
Borrower further represents that there has been no material adverse change in
Borrower's business or financial condition from that reflected in the most
recent of Borrower's financial statements that have been delivered to Bank.
Borrower further represents and warrants that Borrower has no claims or causes
of action of any kind whatsoever against Bank or any of Bank's present or former
employees, officers, directors, attorneys, or agents of any kind in their
capacity as such (collectively, the "Released Parties") and further, that the
Released Parties have performed all of the respective obligations under the
Credit Agreement and other Loan Documents and have complied with all provisions
therein set forth. Borrower acknowledges that as of October 11, 2002, the
outstanding principal balance of the Revolving Loans is $0.00, and the aggregate
stated amount of all Letters of Credit outstanding and available for drawing is
$1,150,000.
7. SUBSIDIARIES AND OWNERSHIP OF STOCK.
Borrower represents and warrants to Bank that set forth m Exhibit 7 is
a complete and accurate list of the Subsidiaries of the Borrower, showing the
jurisdiction of incorporation of each and showing the percentage of the
Borrower's ownership of the outstanding stock of each Subsidiary. All of the
outstanding capital stock of each such Subsidiary has been validly issued, is
fully paid and nonassessable, and is owned by the Borrower free and clear of all
Liens.
8. COURSE OF DEALING.
No course of dealing heretofore or hereafter between Borrower and
Bank, or any failure or delay on the part of Bank in exercising any rights or
remedies under the Credit Agreement or existing by law shall operate as a waiver
of any right or remedy of Bank with respect to said indebtedness, and no single
or partial exercise of any right or remedy hereunder shall operate as a
FOURTH AMENDMENT TO CREDIT AGREEMENT - 9
waiver or preclusion to the exercise of any other rights or remedies Bank may
have in regard to said indebtedness.
9. GOVERNING LAW.
This Amendment is made in the State of Idaho, which state the parties
agree has a substantial relationship to the parties and to the underlying
transaction embodied hereby. Accordingly, in all respects, this Amendment and
the Loan Documents and the obligations arising hereunder and thereunder shall be
governed by, and construed in accordance with, the laws of the State of Idaho
applicable to contracts made and performed in such state and any applicable law
of the United States of America. Each party hereby unconditionally and
irrevocably waives, to the fullest extent permitted by law, any claim to assert
that the law of any jurisdiction other than the State of Idaho governs this
Amendment and the Loan Documents.
10. COSTS AND EXPENSES.
Borrower shall pay on demand by Bank all Bank Expenses incurred by
Bank in connection with the preparation, execution, delivery, filing, recording,
and administration of this Amendment or any of the documents contemplated
hereby, including, without limitation, the reasonable fees and out of pocket
expenses of counsel for Bank with respect to this Amendment and the documents
and transactions contemplated hereby.
11. ENTIRE AGREEMENT.
The Credit Agreement as amended by this Amendment together with the
other Loan Documents supersedes all prior negotiations, understandings, and
agreements between the parties, whether oral or written, and all such
negotiations, understandings, and agreements are evidenced by the terms of the
Loan Documents. The Credit Agreement may not be further altered or amended in
any manner except by a writing signed by Bank and Borrower.
12. EFFECTS OF THIS AMENDMENT.
This Amendment shall be binding and deemed effective when it is
executed by Borrower, accepted and executed by Bank, and all conditions
precedent set forth in Section 3 have been fulfilled. All terms, covenants and
conditions of the Credit Agreement that have not been modified, amended, or
otherwise changed by this Amendment are reaffirmed and remain in full force and
effect.
13. COUNTERPARTS.
This Amendment maybe executed in counterparts and may be delivered by
facsimile transmission. Each such counterpart shall constitute an original, but
all such counterparts shall constitute but one Amendment.
FOURTH AMENDMENT TO CREDIT AGREEMENT - 10
IN WITNESS WHEREOF, Borrower has executed this Amendment as of the
Date first written above.
BORROWER:
AMERICAN ECOLOGY CORPORATION
By
------------------------------
James R. Baumgardner
Sr. Vice President and CFO
GUARANTOR'S CONSENT
Each Guarantor consents to, acknowledges, and accepts the forgoing
Amendment. Each Guarantor affirms and ratifies its Continuing and Unconditional
Guaranty made by Guarantor for the benefit of Bank (the "Guaranty"), and
confirms that the Guaranty remains in full force and effect and binding upon the
Guarantor without any setoffs, defenses, or counterclaims of any kind
whatsoever. Each Guarantor also acknowledges and reaffirms all existing security
agreements, financing statements, and any other documents the Guarantor executed
in connection with the Guaranty or the Credit Agreement.
Dated as of October 15, 2002.
GUARANTORS:
AMERICAN ECOLOGY SERVICES CORPORATION
By
------------------------------
James R Baumgardner
Vice President and Treasurer
AMERICAN ECOLOGY MANAGEMENT CORPORATION
By
------------------------------
James R Baumgardner
Vice President and Treasurer
FOURTH AMENDMENT TO CREDIT AGREEMENT - 11
TEXAS ECOLOGISTS, INC
By
------------------------------
James R. Baumgardner
Vice President and Treasurer
AMERICAN ECOLOGY RECYCLE CENTER, INC.
By
------------------------------
James R, Baumgardner
Vice President and Treasurer
AMERICAN ECOLOGY ENVIRONMENTAL SERVICES
CORPORATION
By
------------------------------
James R, Baumgardner
Vice President and Treasurer
US ECOLOGY, INC.
By
------------------------------
James R, Baumgardner
Vice President and Treasurer
US ECOLOGY IDAHO, INC.
By
------------------------------
James R, Baumgardner
Vice President and Treasurer
FOURTH AMENDMENT TO CREDIT AGREEMENT - 12
BANK'S ACCEPTANCE
Accepted and effective as of the 15th day of October, 2002, in the
State of Idaho.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By
------------------------------
Brian W. Cook, Vice President
FOURTH AMENDMENT TO CREDIT AGREEMENT - 13
EXHIBIT 3A
Form of Revolving Note
See attached
EXHIBIT 3A - 1
REVOLVING NOTE
Borrower: AMERICAN ECOLOGY CORPORATION October 15,2002
Boise, Idaho
Address: 805 W. Idaho, Suite 200
Boise, Idaho 83702
Principal Amount: Six Million Dollars ($6,000,000)
FOR VALUE RECEIVED, AMERICAN ECOLOGY CORPORATION, a Delaware
corporation ("Borrower"), promises to pay to the order of WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Bank") the total principal amount outstanding on this
note (the "Note") together with interest thereon as stated below, in lawful
money of the United States of America.
This Note is executed pursuant to and is the Revolving Note referred
to in that certain Credit Agreement, dated August 17, 2000, between Borrower and
Bank (as amended, modified, or supplemented from time to time, the "Credit
Agreement"). Capitalized terms used but not defined in this Note shall have the
same definitions as are ascribed to such terms in the Credit Agreement. This
Note is governed by the provisions of the Credit Agreement.
This Note is a revolving promissory note and evidences a revolving
line of credit not to exceed the maximum principal amount stated above at any
one time. The amount outstanding on this Note at any specific time shall be the
total amount advanced by Bank less the amount of principal payments made from
time to time, plus any interest due and payable.
Borrower agrees that any and all advances made hereunder shall be for
Borrower's benefit, whether or not said advances are deposited to Borrower's
account. Advances may be made at the request of those persons so identified in
the Credit Agreement and such persons are hereby authorized to request advances
and to direct the disposition of any such advances in the manner provided in the
Credit Agreement until written notice of revocation of this authority is
received by Bank from Borrower.
The outstanding unpaid balance of this Note shall bear interest at a
fluctuating per annum rate as set forth in the Credit Agreement. This Note shall
be repaid in the manner set forth in the Credit Agreement.
This Note is secured, in part, by a Security Agreement covering
accounts and other collateral as provided therein and in the Credit Agreement.
This Note is made in the state of Idaho, which state the parties agree
has a substantial relationship to the parties and to the underlying transaction
embodied hereby. Accordingly, in all respects, this Note and the obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the state of Idaho applicable to contracts made and performed in such
state and any applicable law of the United States of America. Each party hereby
unconditionally and irrevocably waives, to the fullest extent permitted by law,
any claim to assert that the law of any
EXHIBIT 3A - 2
jurisdiction other than the state of Idaho governs this Note. All disputes,
controversies, or claims arising out of, or in connection with, this note
shall be litigated in any court of competent jurisdiction within the state of
Idaho. Each party hereby accepts jurisdiction of such state and agrees to accept
service of process as if it were personally served within such state. Each party
irrevocably waives, to the fullest extent permitted by law, any objection that
the party may now or hereafter have to the jurisdiction of the courts of such
state and any claim that any such litigation brought in any such court has been
brought in an inconvenient forum.
Except as expressly provided in the Credit Agreement, the makers,
sureties, guarantors and endorsers of this note jointly and severally waive
presentment for payment, protest, notice of protest and notice of nonpayment of
this Note, and consent that this Note or any payment due under this Note maybe
extended or renewed without demand or notice, and further consent to the release
of any collateral or part thereof, with or without substitution.
AMERICAN ECOLOGY CORPORATION
By
------------------------------
James R. Baumgardner
Sr. Vice President and CFO
EXHIBIT 3A - 3
EXHIBIT 7
AMERICAN ECOLOGY CORPORATION AND SUBSIDIARIES
(as of 10/15/02)
PERCENTAGE
OF STOCK
PARENT OWNED BY
COMPANY NAME/ADDRESSES CORP PARENT INCORP.
- ---------------------------------------- ----------- ----------- -------------
American Ecology Corporation (AEC) N/A N/A Delaware
300 E. Mallard, Suite 300 3/23/87
Boise ID 83706
BIN 95-3889638
- ---------------------------------------- ----------- ----------- -------------
American Ecology Environmental Services AEC 100% Texas
Corporation (AEESC) 6/12/80
13640 Highway 155 North
Tyler TX 75708 f/k/a
P.O. Box 248 Gibraltar
WinonaTX 75792 Chemical
BIN 75-1747175 Resources, Inc.
(name change
1/4/95)
- ---------------------------------------- ----------- ----------- -------------
American Ecology Management Corporation AEC 100% Delaware
(AEMC) 9/22/94
805 W. Idaho
Suite 200
Boise ID 83702
Inactive Pending
- ---------------------------------------- ----------- ----------- -------------
American Ecology Recycle Center, Inc. AEC 100% Delaware
(AERC) 3/31/94
109 Flint Road
Oak Ridge TN 37830 d/b/a US Ecology
BIN 62-1568988 Nuclear
Equipment Service
Center (4/8/96)
d/b/a US Ecology
Nuclear Materials
Management
Center (4/8/96)
- ---------------------------------------- ----------- ----------- -------------
American Ecology Services Corporation AEC 100% Delaware
(AESC) 2/24/93
13 IN. RicheyRoad
Pasadena TX 77506
BIN 76-0400703
- ---------------------------------------- ----------- ----------- -------------
Texas Ecologists, Inc. (TECO) USE 100% Texas
P.O. Box 307 11/22/71
RobstownTX 78380
BIN 94-2 1643 12
- ---------------------------------------- ----------- ----------- -------------
EXHIBIT 7 - 1
PERCENTAGE
OF STOCK
PARENT OWNED BY
COMPANY NAME/ADDRESSES CORP PARENT INCORP.
- ---------------------------------------- ----------- ----------- -------------
US Ecology, Inc. (USE) AEC 100% California
300 E. Mallard Drive, Suite 300 9/22/52
Boise ID 83706
f/k/a
Nuclear
Engineering
BIN 94-1406536 Company, Inc.
(name change
12/11/80)
- ---------------------------------------- ----------- ----------- -------------
US Ecology Idaho, Inc. (USEI) AEC 100% Delaware
P.O. Box 400 12/26/01
Lemley Road
Grand View, ID 83624 f/k/a
BIN 82-0365987 Envirosafe
Services of Idaho,
Inc.
(name change
5/1/01)
- ---------------------------------------- ----------- ----------- -------------
EXHIBIT 7 - 2