EXHIBIT 10.50d
SIXTH AMENDMENT TO THE CREDIT AGREEMENT
This Amendment is made and entered into as of the 16th day of
December, 2003, 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 adjust
the commitment amount and extend the maturity date.
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.
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.
AMENDMENTS.
AMENDMENTS TO ARTICLE 1 - DEFINITIONS.
THE DEFINITION OF "COMMITMENT AMOUNT" IN SECTION 1.1 OF THE
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CREDIT AGREEMENT IS AMENDED TO INCREASE THE AMOUNT TO $8,000,000 AND SHALL
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PROVIDE IN ITS ENTIRETY AS FOLLOWS:
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"COMMITMENT AMOUNT" means Eight Million Dollars ($8,000,000), less the
aggregate stated amount of all Letters of Credit then outstanding and available
for drawing, and the aggregate amount of unreimbursed drawings on Letters of
Credit.
THE DEFINITION OF "MATURITY DATE" IN SECTION 1.1 OF THE
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CREDIT AGREEMENT IS AMENDED TO EXTEND THE DATE TO JUNE 15, 2005, AND SHALL
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PROVIDE IN ITS ENTIRETY AS FOLLOWS:
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"MATURITY DATE" means June 15, 2005, or such other date as Bank and
Borrower may agree upon in writing from time to time.
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:
REVOLVING NOTE.
The new Revolving Note required by this Amendment in substantially the
form attached as Exhibit 1, duly executed by Borrower.
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.
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.
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.
PAYMENT OF LOAN AMENDMENT FEE.
Payment of the Loan Amendment Fee as required by Section 4 of
this Amendment.
ADDITIONAL DOCUMENTATION.
Such other approvals, opinions, or documents as Bank may
reasonably request.
LOAN AMENDMENT FEE.
Upon the execution of this Amendment, Borrower shall pay Bank a loan
amendment fee of Eighteen Thousand Dollars ($18,000). 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.
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.
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 December 11th, 2003, 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
$3,508,262.
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 waiver
or preclusion to the exercise of any other rights or remedies Bank may have in
regard to said indebtedness.
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.
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.
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.
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.
COUNTERPARTS.
This Amendment may be 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.
IN WITNESS WHEREOF, Borrower has executed this Amendment as of the
date first written above.
BORROWER:
AMERICAN ECOLOGY CORPORATION
By /S/ James R. Baumgardner
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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 December 16th, 2003.
GRANTORS:
AMERICAN ECOLOGY SERVICES CORPORATION
By /S/ James R. Baumgardner
James R. Baumgardner
Sr. Vice President and CFO
GUARANTORS:
AMERICAN ECOLOGY SERVICES CORPORATION
By /S/ James R. Baumgardner
James R. Baumgardner
Sr. Vice President and CFO
AMERICAN ECOLOGY MANAGEMENT
CORPORATION
By /S/ James R. Baumgardner
------------------------
James R. Baumgardner
Vice President and Treasurer
TEXAS ECOLOGISTS, INC
By /S/ James R. Baumgardner
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James R. Baumgardner
Vice President and Treasurer
AMERICAN ECOLOGY RECYCLE CENTER, INC.
By /S/ James R. Baumgardner
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James R. Baumgardner
Vice President and Treasurer
AMERICAN ECOLOGY ENVIRONMENTAL
SERVICES CORPORATION
By /S/ James R. Baumgardner
------------------------
James R. Baumgardner
Vice President and Treasurer
US ECOLOGY, INC.
By /S/ James R. Baumgardner
------------------------
James R. Baumgardner
Vice President and Treasurer
US ECOLOGY IDAHO, INC.
By /S/ James R. Baumgardner
------------------------
James R. Baumgardner
Vice President and Treasurer
BANK'S ACCEPTANCE
Accepted and effective as of the 16th day of December, 2003, in the
State of Idaho.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By /S/ Brian W. Cook
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Brian W. Cook, Vice President
EXHIBIT 1
FORM OF REVOLVING NOTE
SEE ATTACHED
REVOLVING NOTE
BORROWER: AMERICAN ECOLOGY CORPORATION DECEMBER 16TH, 2003
BOISE, IDAHO
ADDRESS: 805 W. IDAHO, SUITE 200
BOISE, IDAHO 83702
PRINCIPAL AMOUNT: EIGHT MILLION DOLLARS ($8,000,000)
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 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
REVOLOVING NOTE - 1
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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 may be
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 /S/ James R. Baumgardner
James R. Baumgardner
Sr. Vice President and CFO
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