Exhibit4.8

 

SIXTHAMENDMENT

 

THIS SIXTH AMENDMENT dated as of January 2, 2002 (this “Amendment”)amends the Second Amended and Restated Credit Agreement dated as of February 3,1999 (as previously amended, the “Credit Agreement”) among U S Liquids Inc. (the“Company”), various financial institutions (the “Banks”), Fleet National Bank,as Syndication Agent, and Bank of America, N.A. (formerly known as Bank ofAmerica National Trust and Savings Association), as administrative agent (insuch capacity, the “Administrative Agent”). Terms defined in the Credit Agreement are, unless otherwise definedherein or the context otherwise requires, used herein as defined therein.

 

WHEREAS, the Company, the Banks and the Administrative Agent haveentered into the Credit Agreement; and

 

WHEREAS, the parties hereto desire to amend the Credit Agreement incertain respects as more fully set forth herein;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

SECTION 1  AmendmentsRequiring the Consent of the Required Banks.  Subject to the satisfaction of the conditions precedent set forthin Section 4(a), the Credit Agreement shall be amended as follows:

 

1.1           Addition ofDefinitions.  The following newdefinitions are added to Section 1.1 of the Credit Agreement in appropriatealphabetical sequence:

 

Asset Sale Charges means any non-cash specialcharges taken by the Company related to any sale of assets described in Section5.5 of the Sixth Amendment to this Agreement.

 

Bonus Charges means up to $3,000,000 of non-cash special chargestaken by the Company related to the payment of employee bonuses in the form ofthe Company’s capital stock.

 

FAS 142 Charges means non-cash charges taken by the Companyarising from the write-down of goodwill and other intangible assets pursuant toFinancial Accounting Standard No.142.

 

1.2           Amendments toDefinitions.

 

(a)           The definition of“Adjusted EBITDA” is amended in its entirety to read as follows:

 

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Adjusted EBITDA means, for any Computation Period, the totalof (i) EBITDA for such Computation Period plus (ii) any Detroit FacilityReserve Charges taken during such Computation Period plus (iii) any Asset SaleCharges taken during such Computation Period plus (iv) any FAS 142 Chargestaken during such Computation Period plus (v) any Bonus Charges taken duringsuch Computation Period minus (vi) any Recoveries received (or, in the case ofreversal of charges, taken) during such Computation Period.

 

 (b)          The definition of “Availability Amount” is amended in itsentirety to read as follows:

 

Availability Amount means the CommitmentAmount.

 

(c)           **Subject to the approval by each Bank ofthe amendment set forth in Section 2, the definition of “CommitmentAmount” is amended by deleting the reference to “$120,000,000” therein andsubstituting “$100,000,000” therefor.**

 

(d)           The definition of“Net Worth” is amended in its entirety to read as follows:

 

Net Worth means,****at any time, the sum of (a) the **Company’s consolidated stockholders’equity (including preferred stock accounts) at such time** period plus (b)all Asset Sale Charges, Bonus Charges and FAS 142 Charges taken after June 1,2001.

 

1.3           Amendment toSection 4.3.  The introductoryclause of Section 4.3 is amended in its entirety to read as follows:

 

Each “Interest Period” for a Eurodollar Loan shall commence on the datesuch Eurodollar Loan is made or converted from a Floating Rate Loan, or on theexpiration of the immediately preceding Interest Period for such EurodollarLoan, and shall end on the date which is one, two, three or six months thereafter(or, in the case of an Interest Period which commences after February 1, 2002,the date which is one month thereafter), as the Company may specify:.

 

1.4           Amendment to Section 6.1(b). Section 6.1(b) isamended in its entirety to read as follows:

 

(b)           CommitmentReductions.  Concurrently with thereceipt by the Company or any Subsidiary of any Net Cash Proceeds from anyAsset Sale, issuance of equity (other than any equity issued in connection withthe employee stock purchase plan of the Company) or issuance of Debt (otherthan Debt permitted under Section 10.7(a), (b), (c), (d),(e), (g) or (h)), the Commitment 

 

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Amount shall be permanently reduced by an amount (rounded down, ifnecessary, to an integral multiple of $100,000) equal to (A) 100% of all NetCash Proceeds from any Asset Sale and (B) 50% of all other such Net CashProceeds; provided that the requirements of this clause (b) shallnot apply to any Net Cash Proceeds from any Asset Sale that are used topurchase similar assets within 60 days after such Asset Sale.  All reductions of the Commitment Amountpursuant this clause (b) shall reduce the Commitments pro rata among theBanks according to their respective Percentages.

 

1.5           Amendment toSection 10.6.2.  Section 10.6.2 isamended in its entirety to read as follows:

 

10.6.2      Minimum InterestCoverage.  Not permit the InterestCoverage Ratio for any Computation Period to be less than the applicable ratioset forth below:

 
| **Computation**        |   | **Interest**        |   |
|------------------------|--------|---------------------|--------|
| **Period Ending**      |   | **Coverage  Ratio** |   |
| 12/31/01               |   | 3.00 to 1.0         |   |
| 3/31/02 and thereafter |   | 3.50 to 1.0.        |   |

 

1.6           Amendment toSection 10.6.4.  Section 10.6.4 isamended in its entirety to read as follows:

 

10.6.4      CapitalExpenditures.  Not permit theaggregate amount of Capital Expenditures (excluding amounts, if any, paid toconsummate acquisitions permitted by Section 10.11(c) which constituteCapital Expenditures) made by the Company and its Subsidiaries to exceed (a)$11,000,000 from January 1, 2001 through December 31, 2001 or (b) $7,000,000from January 1, 2002 through the Termination Date.

 

SECTION 2    Amendment Requiring the Consent of eachBank. Subject to the satisfaction of the conditions precedent set forth in Section4(b), the definition of “Termination Date” set forth in Section 1.1 isamended in its entirety to read as follows:

 

Termination Date means the earlier to occur of (a) June 15,2002; and (b) such other date on which the Commitments shall terminate pursuantto Section 6 or Section 12.

 

SECTION 3            Representationsand Warranties.  The Companyrepresents and warrants to the Administrative Agent and the Banks that, aftergiving effect to the effectiveness hereof, (a) each warranty set forth inSection 9 (excluding Section 9.14 with respect to U S Liquids of 

 

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Central Texas, L.L.C.) of the Credit Agreement is true and correct asof the date of the execution and delivery of this Amendment by the Company,with the same effect as if made on such date, and (b) no Event of Default orUnmatured Event of Default exists.

 

SECTION 4            Effectiveness.  (a) The amendments set forth in Section 1above shall become effective when the Administrative Agent shall have received(i) counterparts of this Amendment executed by the Company and the RequiredBanks, (ii) a Confirmation, substantially in the form of Exhibit A,signed by the Company and each Subsidiary, and (iii) an amendment fee for eachBank which, on or before January 2, 2002, executes and delivers to theAdministrative Agent a counterpart hereof agreeing to the amendments set forthin Section 1, such fee to be in an amount equal to 0.05% of such Bank’sCommitment after giving effect to the amendment in Section 1.2(b).

 

(b)           The amendment setforth in Section 2 shall become effective when the Administrative Agentshall have received (i) counterparts of this Amendment executed by the Companyand each Bank and (ii) an extension fee in the amount of $200,000 (to be sharedamong the Banks pro rata according to their respective Commitments after givingeffect to the amendment in Section 1.2(b).

 

SECTION 5            Miscellaneous.

 

5.1           ContinuingEffectiveness, etc.  As hereinamended, the Credit Agreement shall remain in full force and effect and ishereby ratified and confirmed in all respects. After the effectiveness of this Amendment, all references in the CreditAgreement and the other Loan Documents to “Credit Agreement” or similar termsshall refer to the Credit Agreement as amended hereby.

 

5.2           Counterparts. This Amendment may be executed in any number of counterparts and by thedifferent parties on separate counterparts, and each such counterpart shall bedeemed to be an original but all such counterparts shall together constituteone and the same Amendment.

 

5.3           Governing Law. This Amendment shall be a contract made under and governed by the lawsof the State of Illinois applicable to contracts made and to be performedentirely within such state.

 

5.4           Successors and Assigns.  This Amendment shall be binding upon the Company, the Banks andthe Administrative Agent and their respective successors and assigns, and shallinure to the benefit of the Company, the Banks and the Administrative Agent andthe respective successors and assigns of the Banks and the AdministrativeAgent.

 

5.5           Consent to AssetSales.  Notwithstanding anyprovision of Section 10.11 of the Credit Agreement or Section 6.6 of the FourthAmendment to the Credit Agreement to the contrary, the Required Banks herebyagree that the Company may sell all of the stock or all or a 

 

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portion of the assets of any of the Subsidiaries listed on Schedule10.9(d) of the Credit Agreement and any Specified Property so long as the NetCash Proceeds from any such sale are at least equal to the tangible book valueof such Subsidiary or assets, as applicable.

 

5.6           Pricing.  The Company and the Required Banks agreethat, notwithstanding any provision of the Credit Agreement to the contrary,**(a) each of the Floating Rate Margin,the Eurodollar Margin, the rate per annum for non–use fees and the rateper annum for letter of credit fees for Financial Letters of Credit and Non–FinancialLetters of Credit, respectively, set forth in Schedule 1.1 of the CreditAgreement (the “Pricing Schedule”) shall not be priced lower than the rates setforth in Level II** of the Pricing Schedule during the period fromFebruary 1, 2002 through April 1, 2002 and (b) the **Floating Rate Margin and the EurodollarMargin shall be increased by 0.25% on each of April 2, 2002 and May 1, 2002 foreach of Level I and Level II.**

 

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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Delivered at Chicago, Illinois, as of the day and year first abovewritten.

 
| U  S LIQUIDS INC.                                        |
|----------------------------------------------------------|
|                                                     |
|                                                     |
| By                                                       |   |
| Title                                                    |   |
|                                                     |
|                                                     |
| BANK  OF AMERICA, N.A., as Administrative Agent          |
|                                                     |
|                                                     |
| By                                                       |   |
| Title                                                    |   |
|                                                     |
|                                                     |
| BANK  OF AMERICA, N.A., as a Bank                        |
|                                                     |
|                                                     |
| By                                                       |   |
| Title                                                    |   |
|                                                     |
|                                                     |
| FLEET  NATIONAL BANK, as Syndication Agent and as a Bank |
|                                                     |
|                                                     |
| By                                                       |   |
| Title                                                    |   |
|                                                     |
|                                                     |
| BANK  ONE TEXAS, N.A.                                    |
|                                                     |
|                                                     |
| By                                                       |   |
| Title                                                    |   |

 

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|                      |
|---------------------------|
| THE BANK OF NOVA SCOTIA   |
|                      |
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| By                        |   |
| Title                     |   |
|                      |
|                      |
| UNION  BANK OF CALIFORNIA |
|                      |
|                      |
| By                        |   |
| Title                     |   |
|                      |
|                      |
| COMERICA  BANK            |
|                      |
|                      |
| By                        |   |
| Title                     |   |
|                      |
|                      |
| WELLS FARGO BANK, N.A.    |
|                      |
|                      |
| By                        |   |
| Title                     |   |
|                      |
|                      |
| BNP PARIBAS               |
|                      |
|                      |
| By                        |   |
| Title                     |   |
|                      |
|                      |
| By                        |   |
| Title                     |   |

 

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**Exhibit A**

 

CONFIRMATION

 

Dated as of January 2, 2002

 

To:           Bank of America, N.A.,individually and as Agent, and the other financial institutions party to theCredit Agreement referred to below

 

Please refer to (a) theSecond Amended and Restated Credit Agreement dated as of February 3, 1999 (asamended, the “Credit Agreement”) among U S Liquids Inc., various financialinstitutions (the “Banks”) and Bank of America, N.A. (formerly known as Bank ofAmerica National Trust and Savings Association), as agent (the “Agent”); (b)the other “Loan Documents” (as defined in the Credit Agreement), including theGuaranty and the Security Agreement; and (c) the Sixth Amendment dated as ofJanuary 2, 2002 to the Credit Agreement (the “Sixth Amendment”).

 

Each of the undersignedhereby confirms to the Agent and the Banks that, after giving effect to theSixth Amendment and the transactions contemplated thereby, each Loan Documentto which such undersigned is a party continues in full force and effect and isthe legal, valid and binding obligation of such undersigned, enforceableagainst such undersigned in accordance with its terms.

 
| U  S LIQUIDS INC.                             |   |
|-----------------------------------------------|--------|
|                                          |   |
|                                          |   |
| By:                                           |   |   |
| Name  Printed:                                |   |   |
| Title:                                        |   |   |
|                                          |   |
| EARTH  BLENDS, INC.                           |   |
| MBO,  INC.                                    |   |
| THE  NATIONAL SOLVENT EXCHANGE CORP.          |   |
| NORTHERN  A-1 SANITATION SERVICES, INC.       |   |
| PARALLEL  PRODUCTS OF FLORIDA, INC.           |   |
| PARALLEL  PRODUCTS OF KENTUCKY, INC.          |   |
| RE-CLAIM  ENVIRONMENTAL LOUISIANA, L.L.C.     |   |
| ROMIC ENVIRONMENTAL TECHNOLOGIES  CORPORATION |   |
| USL  FIRST SOURCE, INC.                       |   |
| U  S LIQUIDS OF HOUSTON, L.L.C.               |   |
| U  S LIQUIDS OF DALLAS, L.L.C.                |   |
| U  S LIQUIDS OF CENTRAL TEXAS, L.L.C.         |   |
|                                               |        |  |  |  |

 

A-1

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| U  S LIQUIDS OF CONNECTICUT, INC.                            |   |
|--------------------------------------------------------------|--------|
| U  S LIQUIDS OF GREATER CHICAGO, INC.                        |   |
| U  S LIQUIDS OF PENNSYLVANIA, INC.                           |   |
| U  S LIQUIDS OF TEXAS, INC.                                  |   |
| U  S LIQUIDS LP HOLDING CO.                                  |   |
| U  S LIQUIDS NORTHEAST, INC.                                 |   |
| U  S LIQUIDS TERMINAL SERVICES, INC.                         |   |
| U  S LIQUIDS OF DETROIT, INC.                                |   |
| U  S LIQUIDS OF FLORIDA, INC.                                |   |
| USL  ENVIRONMENTAL SERVICES, INC.                            |   |
| USL  GENERAL MANAGEMENT, INC.                                |   |
| USL  PARALLEL PRODUCTS OF CALIFORNIA                         |   |
| WASTE  RESEARCH AND RECOVERY, INC.                           |   |
| WASTE  STREAM ENVIRONMENTAL, INC.                            |   |
|                                                         |   |
|                                                         |   |
| By:                                                          |   |   |
| Name:                                                        |   |   |
| Title:                                                       |   |   |
|                                                         |   |
| U S LIQUIDS OF LA, L.P.                                      |   |
|                                                         |   |
| By:  MBO, Inc., its General Partner                     |   |
|                                                         |   |
| By:                                                          |   |   |
| Name:                                                        |   |   |
| Title:                                                       |   |   |
|                                                         |   |
| USL  MANAGEMENT LIMITED PARTNERSHIP                          |   |
|                                                         |   |
| By:  USL General Management, Inc., its General  Partner |   |
|                                                         |   |
| By:                                                          |   |   |
| Name:                                                        |   |   |
| Title:                                                       |   |   |
|                                                         |   |
| GEM  MANAGEMENT, INC.                                        |   |
|                                                         |   |
| By:                                                          |   |   |
| Name:                                                        |   |   |
| Title:                                                       |   |   |

 

 

 

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