FOURTH AMENDMENT, AGREEMENT AND WAIVER, dated as of April 30, 2001
(this "Amendment"), to the Amended and Restated Debtor in Possession Credit
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Agreement, initially dated as of June 11,2000, amended and restated as of July
19, 2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among SAFETY-KLEEN SERVICES, INC., a Delaware corporation
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(the "Borrower"), the financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), THE TORONTO-DOMINION BANK, HOUSTON
AGENCY, as letter of credit issuing bank (the "Issuing Lender"), TORONTO
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DOMINION (TEXAS), INC., as administrative agent (the "General Administrative
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Agent"), and THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT"), as collateral agent
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and underwriter (the "Collateral Agent"; collectively with the General
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Administrative Agent, the "Underwriters").
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W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the General Administrative
Agent and the Lenders agree to amend certain provisions of the Credit Agreement
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the General Administrative Agent and the Lenders have agreed
to such amendments only upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Credit Agreement, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized
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terms used herein shall have the meanings given to them in the Credit Agreement.
2. Amendment of Section 1.1. Section 1.1 of the Credit Agreement
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is hereby amended by
(a) inserting the following new definition in its appropriate
alphabetical order:
"Marketing Book": a marketing book for the sale of the Debtors'
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chemical services segment (as such segment is more thoroughly
described in the Debtors' presentation to the Lenders on December 20,
2000), prepared by the Debtors' financial advisors and satisfactory in
form and substance to the Underwriters in their reasonable discretion.
(b) replacing the definitions of "Business Plan" and "Termination
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Date" in their entireties, respectively, as follows:
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"Business Plan": a business plan and related financial models
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with respect to the Debtors' branch sales and service business (i.e.,
the route-based business), prepared by the Debtors with reasonable
consultation with the official committee of unsecured creditors
appointed in the Cases, to be satisfactory in form and substance to
the Underwriters in their reasonable discretion including, without
limitation, in respect of the areas identified by the Underwriters'
financial advisors from time to time; provided, that the Business Plan
need not include a valuation of the Debtors' businesses.
"Penalty Fee": as defined in Section 4.15.
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"Termination Date": the earlier to occur of (a) January 31, 2002;
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(b) the effective date of a Plan of Reorganization; and (c) the
earlier termination of the Revolving Credit Commitments in accordance
with the terms hereof.
3. Amendment of Section 4. Section 4 of the Credit Agreement is
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hereby amended by adding the following new Section 4.15:
"4.15 Penalty Fee. If the Debtors fail to timely deliver any of
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the financial statements or other documents required by Sections
7.1(d), 7.11 or 7.12, the Borrower agrees to pay, to the General
Administrative Agent, for the ratable benefit of the Lenders, a fee
equal to $1,000,000 (the "Penalty Fee"). The Penalty Fee shall be
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payable irrespective of whether the General Administrative Agent
delivers a notice of Default or Event of Default in respect of such
failure, and acceptance by the General Administrative Agent of the
Penalty Fee shall not operate as a waiver of any right, remedy, power
or privilege hereunder or under the Loan Documents."
4. Amendment of Section 7.1. Section 7.1 of the Credit Agreement
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is hereby amended by
(a) replacing the phrase "commencing on the Audited Financial
Statements Delivery Date" with the phrase "commencing with the fiscal quarter
ending November 30, 2001" in Section 7.1(c); and
(b) deleting Section 7.1(d) in its entirety and replacing it with
the following new Section 7.1(d):
"(d) (i) as soon as available, but in any event by June 30, 2001,
copies of the audited consolidated balance sheets of Holdings and its
consolidated subsidiaries and the related consolidated statements of
income and retained earnings and cash flows of Holdings and its
consolidated subsidiaries, for the years ended August 31, 1997, August
31, 1998, August 31, 1999 and August 31, 2000, setting forth in
comparative form in each case (other than with respect to the fiscal
year ending August 31, 1997) the figures for the previous year,
reported on without a qualification arising out of the scope of the
audit, by Xxxxxx Xxxxxxxx or other independent certified public
accountants of nationally recognized standing, and consolidating
schedules and supporting analysis in form and substance reasonably
satisfactory to the Underwriters (collectively, the "Audited Financial
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Statements") and (ii) (A) as soon as available, but in any event by
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August 22,2001, preliminary drafts of the unaudited consolidated
statements of income and retained earnings and of cash flows of
Holdings and its consolidated subsidiaries for the fiscal quarters
ending November 30, 2000, February 28, 2001 and May 31, 2001 and (B)
as soon as available, but in any event by September 15, 2001, final
versions of the unaudited consolidated statements of income and
retained earnings and of cash flows of Holdings and its consolidated
subsidiaries for the fiscal quarters ending November 30, 2000,
February 28, 2001 and May 31, 2001, in each case setting forth in
comparative form the figures for the previous year to the extent
available, and consolidating schedules and supporting analysis in form
and substance satisfactory to the Underwriters, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);".
5. Amendment of Section 7.2(d). Section 7.2(d) of the Credit
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Agreement is hereby amended by replacing Section 7.2(d) in its entirety with the
following new Section 7.2(d);
"(d) as soon as available, but no later than the twentieth
Business Day of each fiscal month, commencing on October 26,2001, a
report setting forth the calculations demonstrating compliance (or the
failure to comply) with the covenants established pursuant to Section
7.11 for the immediately preceding fiscal month, in a form reasonably
satisfactory to the General Administrative Agent;"
6. Amendment of Section 7.11. replacing Section 7.11 in its
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entirety as follows:
"7.11 Financial Condition Covenants. On or before August 15,
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2001, the Borrower shall provide each Lender with a copy of the final
Business Plan and the revised business plan for the chemical services
segment. The Borrower shall afford the General Administrative Agent
and the Underwriters full opportunity to conduct due diligence in
respect thereof. The General Administrative Agent and the Underwriters
shall negotiate in good faith such financial covenants (including
capital expenditure limitations) as they may deem appropriate in their
sole discretion. On or before September 15, 2001, the Borrower shall
execute and deliver to the General Administrative Agent an amendment
in form and substance satisfactory to the General Administrative Agent
and the Underwriters, containing the above-referenced financial
covenants."
7. Amendment of Section 7. Section 7 of the Credit Agreement is
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hereby amended by adding the following new Section 7.12:
"7.12 Marketing Book. On or before August 31,2001, the Debtors
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shall deliver to the Underwriters a copy of the Marketing Book and
commence distribution to the potential acquirers or strategic partners
recommended by the Debtors' financial advisors."
8. Amendment of Section 9. Section 9 of the Credit Agreement is
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hereby amended by
(a) replacing Section 9(p) and 9(q) in their entireties,
respectively, as follows:
"(p) the Borrower shall have failed to (i) deliver to the
Underwriters by August 31,2001, the Marketing Book, (ii) deliver to
the Underwriters by August 15,2001, the final Business Plan and the
revised business plan for the chemical services segment or (iii)
deliver to the Underwriters, by August 31, 2001, a preliminary Plan of
Reorganization; or"
"(q) the Borrower shall have failed to (i) after reasonable
consultation with the General Administrative Agent and the Steering
Committee's advisors, engage, by June 21, 2001, an executive search
firm reasonably acceptable to the General Administrative Agent and the
Steering Committee's advisors to assist the Borrower in identifying
candidates for and hiring a Chief Executive Officer of Safety-Kleen
Corp. (the "Chief Executive Officer") or (ii) after reasonable
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consultation with the General Administrative Agent and the Steering
Committee's advisors, hire, by October 31, 2001, a Chief Executive
Officer reasonably acceptable to the General Administrative Agent and
the Steering Committee's advisors, provided, that this Section 9(q)
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shall terminate and be of no force and effect upon and after the
hiring of a Chief Executive Officer; or"
(b) adding the following new Section 9(r):
"(r) all conditions precedent to effectiveness of the Plan of
Reorganization shall not have been satisfied by January 31,2002;"
9. Waiver. The Required Lenders hereby waive any Default or Event
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of Default that occurred by virtue of the Debtors' failure to satisfy the
requirements of(i) Section 7.1 (d)(i) and (ii) Section 9(q) as such Sections
were in effect prior to this Amendment.
10. Representations and Warranties. After giving effect to this
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Amendment, the Borrower hereby represents and warrants that all of the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects as of the date hereof (unless stated to relate
to a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date) and
that no Default or Event of Default has occurred and is continuing.
11. Expenses. The Borrower agrees to pay and reimburse the General
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Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with the negotiation, preparation, execution, and
delivery of this Amendment, including the reasonable fees and expenses of
counsel.
12. Effectiveness. This Amendment shall become effective on the
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date upon which the General Administrative Agent shall have received
counterparts hereof duly executed by the Borrower and the Required Lenders.
13. Continuing Effects. Except as expressly waived or amended
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hereby, the Credit Agreement shall continue to be and shall remain in full force
and effect in accordance with its terms.
14. Counterparts. This Amendment may be executed by the parties
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hereto on one or more counterparts, and all of such counterparts shall be deemed
to constitute one and the same instrument. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SAFETY-KLEEN SERVICES, INC.
By: /S/ Xxxxx X.Xxxxxxxxx
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Name: Xxxxx X.Xxxxxxxxx
Title: CFO
Date: 06/22/2001
TORONTO DOMINION (TEXAS), INC,
as General Administrative Agent, Underwriter
and Lender
By: /S/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Vice President
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By: /S/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Mgr. Syndications & Credit Admin.
THE CIT GROUP/BUSINESS CREDIT, INC.
as Collateral Agent, Underwriter and Lender
By: /S/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
BANK ONE, NA
By: /S/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: First Vice President
BANK OF AMERICA, N.A.
By: /S/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: /S/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Authorized Signatory
SENIOR DEBT PORTFOLIO
By Boston Management and Research, as
Investment Advisor
By: /S/ Payson X. Xxxxxxxxx
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Name: Payson X. Xxxxxxxxx
Title: Vice President
