EXHIBIT 10.8
AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Amendment to Second Amended and Restated Loan Agreement (this
"Amendment"), dated as of October 29, 1999, is between XXXXXXX CORP., a Delaware
corporation, and its affiliated corporations who are signatories to this
Amendment (collectively, the "Borrowers"), and SOUTHTRUST BANK, NATIONAL
ASSOCIATION (the "Bank"), to record their agreement regarding modifications of
the Second Amended and Restated Loan Agreement dated January 12, 1998 (the
"Restated Loan Agreement") between Bank and Borrowers.
Recitals
Pursuant to the term and conditions of the Restated Loan Agreement, Bank
made available to the Borrowers a revolving loan and a real estate loan as
described more particularly in the Restated Loan Agreement including the
extension or renewals of letters of credit for the account of the Borrower. The
Bank and Borrower desire to amend the Restated Loan Agreement as described in
this Amendment. Terms used in this Amendment that are defined in the Restated
Loan Agreement have the meanings assigned to them in the Restated Loan
Agreement.
Agreement
The Bank and the Borrowers agree as follows:
1. Revolving Loans Amendments.
---------------------------
Section 2.1 of the Restated Loan Agreement is amended in the following
respects:
(a) The Borrowers acknowledge that the principal balance of the
Revolving Loans as of the date of this Amendment is $3,443,498.49, which
amount is the sum of the current principal balance, of $2,874,000 and an
advance on the date of this Amendment of $569,498.49 to repay the principal
balance of the ESOP Loan. Bank shall have no obligation after the date of
this Amendment to make available to Borrowers any additional advances to
the Revolving Loans or any additional Letters of Credit, and the Borrower
may not reborrow any amounts required or permitted to be paid by Borrowers
to Bank pursuant to this Amendment. All references in the Restated Loan
Agreement to the Revolving Loans shall be deemed to refer to the Revolving
Loans as modified in this Amendment, notwithstanding that no additional
advances shall be made and no reborrowings permitted.
(b) The Borrowers shall execute and deliver to Bank a promissory note
(the "Amended Revolving Note") in the amount of current principal
outstanding or the Revolving Loans, payable to the order of Bank,
evidencing Borrowers' joint and several obligations to repay the Revolving
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Loans. The principal amount of the Revolving Loans outstanding as a result
of this Amendment shall bear interest at a floating annual rate equal to
the Base Rate plus one-half (1/2%) percent per year. Borrowers shall pay
the principal amount of the Revolving Loans in installments as follows.
Payment Date Amount
------------ ------
November 15, 1999 $1,000,000.00
December 31, 199 1,000,000.00
February 15, 200 1,000,000.00
March 31, 2000 443,498.49
Borrower shall pay accrued interest on the date each principal payment is
due and in addition to the principal payment. The applicable interest rate
on the Revolving Loans shall change as and when the Base Rate changes from
time to time, effective the day each such change occurs.
2. Amendments to Real Estate Loan.
-------------------------------
(a) Borrowers acknowledge that the principal balance of the Real
Estate Loans outstanding as of the date of this Amendment (the "Current
Real Estate Loan Principal Balance") is $1,464,546.61. Subject to the terms
and conditions of this Amendment and the Restated Loan Agreement, the Bank
has agreed to make an additional advance to Borrowers under the Real Estate
Loans of $300,000 (the "Additional Advance").
(b) The Borrowers shall execute and deliver to the Bank a promissory
note (the "Amended Real Estate Note") in the amount of $1,764,546.61, which
amount is the sum of the Additional Advance and the Current Real Estate
Loan Principal Balance, payable to the order of the Bank, evidencing
Borrowers joint and several obligation to repay the Real Estate Loans,
including the Additional Advance. The outstanding principal amount of the
Amended Real Estate Note shall bear interest at the Base Rate plus
three-quarters (3/4%) percent per year. Borrower shall pay principal of the
Amended Real Estate Note in monthly installments of $24,409.11 each
beginning December 1, 1999, and continuing on the same day of each month
thereafter until October 1, 2004, at which time all unpaid principal and
accrued interest will be due and payable in full.
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3. Amendments to Letters of Credit Provisions.
-------------------------------------------
(a) Borrowers acknowledge has issued for Borrowers' account, Letters
of Credit in the amount $1,080,000.00. Pursuant to this Amendment, the Bank
has no further obligation to issue or renew Letters of Credit for
Borrowers' accounts.
(b) Borrowers shall repay to the Bank at the Bank's demand the amount
of any draw of any beneficiary of a Letter of Credit. Until repaid, the
obligation of the Borrowers to repay the amounts of draws against Letters
of Credit shall bear interest at floating annual rate equal to the Base
Rate plus 4%.
4. Defined Terms.
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(a) The definition of "Loan or Loans" in Section 1.36 of the Restated
Loan Agreement shall refer to all loans from Bank to Borrower, including
the Revolving Loans and Real Estate Loans, as modified by this Amendment,
and to the obligation of the Borrowers to repay to the Bank any draws
against Letters of Credit as described in Section 3 of this Amendment.
(b) The "Mortgage" as defined in Section 1.40 of the Restated Loan
Agreement shall refer to the mortgages executed by Parent granting Bank a
first lien on the Real Estate to secure repayment of the Real Estate Loans,
including the Additional Advance.
5. Continuing Security.
--------------------
All obligations of the Borrowers to the Bank, as modified pursuant to this
Amendment will continue to be secured by all of the Collateral Documents,
including without limitation, the Account Pledge Agreement, the Pledge
Agreement, the Security Agreement, the Mortgage, the Restated Loan Agreement as
amended by this Amendment (to the extent it constitutes a security agreement),
and all the documents executed from time to time evidencing Bank's interest in
the Collateral.
6. Representations.
----------------
Borrowers represent to Bank the following as of the execution date of this
Amendment:
(a) Borrowers have all requisite power, authority, and legal right to
execute, deliver, and perform this Amendment;
(b) The execution, delivery, and performance of this Amendment by
Borrowers have been duly authorized by all requisite corporate action and
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will not (i) violate any law, (ii) conflict with the articles of
incorporation and bylaws of Borrowers, (iii) accelerate the maturity of, or
result in any lien, penalty, security interest, or encumbrance in, on, or
under, any mortgage, indebtedness, security agreement, or contingent
obligation, or (iv) constitute a default or breach of any material order,
lease, contract, indenture, mortgage, judgment, promissory note, or other
agreement or instrument to which any of the Borrowers is a party or any of
its property is subject;
(c) No filing with, or consent, license, authorization, or approval
of, any Person is required in connection with the execution, delivery, or
performance of this amendment; and
(d) All Collateral securing the Revolving Loan and the Real Estate
Loan is located within the State of Florida.
(e) This Amendment is valid, effective, and enforceable by Bank
against Borrowers in accordance with its terms, except to the extent
limited by application of general principles of equity and by bankruptcy,
insolvency, debtor relief, and similar laws of general application
affecting the enforcement of creditors' rights.
7. Miscellaneous.
--------------
This Amendment and the documents contemplated by it record the final,
complete, and exclusive understanding between Bank and Borrowers regarding the
modification of the Restated Loan Agreement. Except as modified by this
Amendment, the Restated Loan Agreement and all of the other Loan Documents
continue in full force and effect in accordance with their terms. Bank has not
waived, and does not waive, any of its rights under the Restated Loan Agreement
or any other Loan Documents. This Amendment will become effective when it has
been executed by Bank and all of the Borrowers.
"BORROWER"
XXXXXXX CORP.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/
Chief Financial Officer
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TRANSCOR WASTE SERVICES, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX CONTRACTING CORP.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
THERMOCOR XXXXXXX, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
FACTORY STREET CORPORATION
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX INDUSTRIAL SERVICE CORP.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
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XXXXXXX ABATEMENT CORP.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX INCORPORATED
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX SPECIALTY CONTRACTING, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
XXXXXXX EQUIPMENT LEASING CORP.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxx,
Vice President/Treasurer
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"BANK"
SOUTHTRUST BANK NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
1223351.1 7
