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EXHIBIT 10.6
NOTE MODIFICATION AGREEMENT
NOTE MODIFICATION AGREEMENT (the "Agreement"), made as of April 30,
2001 by and between SPRUCE XXXXXXXXX HOLDING CORP., with an address of 00
Xxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxxxxx 00000 ("Borrower"), a Nevada
corporation and U S INDUSTRIAL SERVICES, INC., a Delaware corporation with an
address of 00000 Xxxxx Xxxx, Xxxxxxx, Xxxxx 00000 (the "Lender").
RECITALS:
1. The Lender is now the lawful owner and holder of a Note (the
"Note") dated September 29, 2000 from the Borrower to the
Lender in the original principal amount of One Million Five
Hundred Fifty Thousand and 00/100's Dollars ($1,550,000.00)
having an outstanding principal balance as of the date hereof
in the amount of One Million Four Hundred Twenty-Nine Thousand
Nine Hundred Eleven and 00/100's Dollars ($1,429,911.00).
2. The Borrower has requested that Lender modify the terms and
provisions of the Note and the Lender is willing to make such
an extension.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
I. DEFINITIONS:
All capitalized terms used herein and not otherwise defined herein shall have
the meaning given said terms in the Note.
II. REPRESENTATIONS/ESTOPPEL: The parties hereto do hereby covenant, represent,
warrant and agree that:
A. There is currently outstanding under the Note the remaining principal sum of
One Million Four Hundred Twenty-Nine Thousand Nine Hundred Eleven and 00/100's
Dollars ($1,429,911.00).
B. Each party has the power and authority to enter into this Loan Modification
Agreement and to perform its duties and obligations in the manner and to the
extent herein set forth herein.
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C. The execution and delivery of this Loan Modification Agreement have not
violated and will not violate the terms of (i) any statute, law, rule, order,
judgment or decree of any governmental authority binding upon any party or (ii)
any agreement, indenture or other instrument binding upon or affecting any
party; and
D. Subject to the compliance by the Borrower with the terms hereof, the Lender
hereby waives any past or present event of default under the Note or related
security agreements.
III. MODIFICATIONS.
A. Effective as of the date hereof the terms of the Note are hereby modified as
follows:
1. Section 1 of the Note is amended as follows:
(a) The definition of "Maturity Date" is deleted in its
entirety and the following is inserted in lieu
thereof:
"Maturity Date" means July 1, 2005.
(b) The definitions of "Refinancing" and "Refinancing
Failure" are deleted in their entirety.
2. Section 2(A) of the Note is modified by deleting "nine and
one half percent (9.5%)" and inserting "seven and three
quarters percent (7.75%)" in its place and stead.
3. Section 2B(ii) of the Note is amended to read as follows:
Interest only payments of Thirty Six Thousand One
Hundred Two and 90/100's Dollars ($36,102.90) on
September 1, 2001, October 1, 2001 and November 2001;
and
4. Section 2B(iii) of the Note is amended to read as follows:
Forty-four (44) equal payments of principal and
interest of Thirty-Seven Thousand Four Hundred
Thirty-Seven and 92/100's Dollars shall be due and
owing on the first day of each month commencing on
December 1, 2001 and the first day of each month
thereafter, through, to and including the Maturity
Date, on which date all remaining principal and
accrued interest thereon shall be due and owing; and
5. Section 2(C) of the Note is deleted in its entirety.
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B. With the exception of those terms specifically modified hereby, in all other
respects the terms of the Note remain in full force and effect.
IV. MISCELLANEOUS:
A. The parties shall execute and deliver to each other any documents reasonably
requested to carry out the purposes of this Loan Modification Agreement.
B. The provisions of this Agreement shall inure and be binding upon the parties
hereto and their respective successors and assigns.
C. This Agreement shall be deemed to have been made under and shall be governed
in all respects by the laws of the State of Illinois.
D. JURY TRIAL WAIVER. THE BORROWER AND THE LENDER MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LOAN
MODIFICATION AGREEMENT OR ANY OTHER FINANCING DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDER TO ACCEPT THIS LOAN
MODIFICATION AGREEMENT AND MAKE THE accommodations SET FORTH HEREIN. THE
BORROWER DOES HEREBY SUBMIT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN ILLINOIS.
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IN WITNESS WHEREOF, the parties hereto have executed this Loan Modification
Agreement as of the date and year written above.
"BORROWER"
SPRUCE XXXXXXXXX HOLDING CORP.
BY:
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Name:
Title:
"LENDER"
U.S. INDUSTRIAL SERVICES, INC.
BY:
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Name: Xxxxx Xxxxxxxx
Title: President/Chief Executive Officer
The undersigned being guarantors of the Borrower's obligations under the Note,
do both hereby (i) consent to the execution and delivery of this Loan
Modification Agreement by the Borrower and (2) in consideration for the
execution and delivery of this Loan Modification Agreement and without limiting
the terms and provisions of the Guaranty to which it is a party, affirms its
continuing obligations under its respective Guaranty to the Lender and
acknowledges that the execution and delivery of this Loan Modification Agreement
will not affect or impair its guaranty of the due and punctual payment of the
Note, as modified by this Loan Modification Agreement. Provided, however, that
nothing contained herein shall or shall be deemed to expand any of the
undersigned's obligations to the Lender under their respective guaranty,
including, but not limited to, the limited nature of American Temporary
Sanitation, Inc.'s guarantee of the obligations of the Borrower.
AMERICAN TEMPORARY SPRUCE XXXXXXXXX CORPORATION.
SANITATION, INC.
BY: BY:
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Name: Name:
Title: Title:
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