Exhibit 4(f) WAIVER AND FIRST AMENDMENT WAIVER AND FIRST AMENDMENT (this "Amendment"), dated as of May 15, 1998, to (i) the Amended and Restated Credit Agreement, dated as of April 3, 1998 (as the same may be amended, supplemented or otherwise...
1
Exhibit 4(f)
WAIVER AND FIRST AMENDMENT
WAIVER AND FIRST AMENDMENT (this "Amendment"), dated as of May 15,
1998, to (i) the Amended and Restated Credit Agreement, dated as of April 3,
1998 (as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"), among LES, INC., a Delaware corporation (the "Company"),
XXXXXXX ENVIRONMENTAL SERVICES (CANADA) LTD., a Canadian corporation and a
wholly owned Subsidiary of the Company (the "Canadian Borrower"; together with
the Company, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
TORONTO DOMINION (TEXAS), INC., as general administrative agent (in such
capacity, the "General Administrative Agent"), THE TORONTO-DOMINION BANK, as
Canadian administrative agent (in such capacity, the "Canadian Administrative
Agent"; together with the General Administrative Agent, the "Administrative
Agents"), TD SECURITIES (USA) INC., as advisor to the Borrowers and arranger of
the commitments described in the Credit Agreement, THE BANK OF NOVA SCOTIA,
NATIONSBANK, N.A., THE FIRST NATIONAL BANK OF CHICAGO and WACHOVIA BANK, N.A.,
as managing agents (each, in such capacity, a "Managing Agent"), THE BANK OF
NOVA SCOTIA and THE FIRST NATIONAL BANK OF CHICAGO, as co-documentation agent
(each, in such capacity, a "Co-Documentation Agent"), and NATIONSBANK, N.A., as
syndication agent (in such capacity, the "Syndication Agent"), and (ii) the
Guarantee and Collateral Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, the Borrowers and Xxxxxxx Environmental Services, Inc., a
Delaware corporation ("Holdings"), have requested that Administrative Agents and
the Lenders agree to waive compliance with certain provisions of the Amended and
Restated Guarantee and Collateral Agreement, dated as of April 3, 1998 (as the
same may be amended, supplemented or otherwise modified, the "Guarantee and
Collateral Agreement"), made by Holdings and each of the other Grantors named
therein in favor of the General Administrative Agent for the benefit of the
Lenders upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Borrowers have requested that the Administrative Agents
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 Administrative Agents and the Lenders have agreed to
such waivers and 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, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement are used
herein with the meanings set forth in the Credit Agreement unless otherwise
defined herein.
2
2
2. Waiver of Section 5.12(c) of the Guarantee and Collateral
Agreement. The General Administrative Agent and the Lenders hereby waive
compliance with the provisions of Section 5.12(c) of the Guarantee and
Collateral Agreement to the extent and only to the extent necessary to permit
Holdings to guarantee the obligations of the Company under the High Yield Notes;
provided, that such guarantee is subordinated to the obligations of Holdings
under the Loan Documents on terms reasonably acceptable to the General
Administrative Agent; provided, further, that Holdings shall not amend the
subordination terms of such guarantee without the prior written consent of the
Required Lenders.
3. Amendment of Section 1.1 of the Credit Agreement. Section 1.1 of
the Credit Agreement is hereby amended by:
(a) inserting after clause (e) of the definition of "Change of
Control" the following: "or (f) if at any time a "Change of Control"
occurs as defined in the indenture governing the High Yield Notes"; and
(b) deleting the last sentence of the definition of "Revolving
Credit Commitment" and inserting in lieu thereof the following: "The
original aggregate amount of the Revolving Credit Commitments is
$450,000,000; provided that at no time shall the aggregate principal
amount of all Revolving Credit Loans exceed $300,000,000 plus an amount
equal to the aggregate increase in Revolving Credit Commitments pursuant
to subsection 2.8."
4. Amendment of Subsection 2.4 of the Credit Agreement. Subsection
2.4(a) of the Credit Agreement is hereby amended by inserting at the end of
clause (ii) of the first sentence thereof the following: "plus an amount equal
to the aggregate increase in Revolving Credit Commitments pursuant to subsection
2.8".
5. Amendment of Section 2 of the Credit Agreement. Section 2 of the
Credit Agreement is hereby amended by adding a new subsection 2.8 at the end
thereof, which shall read as follows:
"2.8 Revolving Credit Commitment Increases. (a) In the event
that the Company wishes to increase the aggregate Revolving Credit
Commitments at any time that no Default or Event of Default has occurred
and is continuing, it shall notify the General Administrative Agent in
writing of the amount (the "Offered Increase Amount") of such proposed
increase (such notice, a "R/C Commitment Increase Notice"). The Company
may, with the consent of the General Administrative Agent (which consent
shall not be unreasonably withheld), (i) offer one or more of the Lenders
the opportunity to participate in all or a portion of the Offered Increase
Amount pursuant to subsection (c) below and/or (ii) offer one or more
additional banks, financial institutions or other entities the opportunity
to participate in all or a portion of the Offered Increase Amount pursuant
to paragraph (b) below. Each R/C Commitment Increase Notice shall specify
which Lenders and/or banks, financial institutions or other entities the
Company desires to participate in such commitment increase. The Company
or, if requested by the Company, the General Administrative
3
3
Agent will notify such Lenders, and/or banks, financial institutions or
other entities of such offer.
(b) Any additional bank, financial institution or other entity which
the Company selects to offer participation in the increased Revolving
Credit Commitments approved by the General Administrative Agent and which
elects to become a party to this Agreement and obtain a Revolving Credit
Commitment in an amount so offered and accepted by it pursuant to
subsection 2.8(a)(ii) shall execute a New Lender Supplement with the
Borrowers and the General Administrative Agent, substantially in the form
of Exhibit Q, whereupon such bank, financial institution or other entity
(herein called a "New Lender") shall become a Lender for all purposes and
to the same extent as if originally a party hereto and shall be bound by
and entitled to the benefits of this Agreement, and Schedule 1.1A shall be
deemed to be amended to add the name and Revolving Credit Commitment of
such New Lender, provided that the Revolving Credit Commitment of any such
New Lender shall be in an amount not less than $5,000,000.
(c) Any Lender which accepts an offer to it by the Company to
increase its Revolving Credit Commitment pursuant to subsection 2.8(a)(i)
shall, in each case, execute a R/C Commitment Increase Supplement with the
Borrowers and the General Administrative Agent, substantially in the form
of Exhibit R, whereupon such Lender shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of its
Revolving Credit Commitment as so increased, and Schedule 1.1A shall be
deemed to be amended to so increase the Revolving Credit Commitment of
such Lender.
(d) If any bank, financial institution or other entity becomes a New
Lender pursuant to subsection 2.8(b) or any Lender's Revolving Credit
Commitment is increased pursuant to subsection 2.8(c), additional
Revolving Credit Loans made on or after the effectiveness thereof (the
"Re-Allocation Date") shall be made pro rata based on the Revolving Credit
Commitment Percentages in effect on and after such Re-Allocation Date
(except to the extent that any such pro rata borrowings would result in
any Lender making an aggregate principal amount of Revolving Credit Loans
in excess of its Revolving Credit Commitment, in which case such excess
amount will be allocated to, and made by, such new Lenders and/or Lenders
with such increased Revolving Credit Commitments to the extent of, and pro
rata based on, their respective Revolving Credit Commitments otherwise
available for Revolving Credit Loans), and continuations of LIBOR Loans
outstanding on such Re-Allocation Date shall be effected by repayment of
such LIBOR Loans on the last day of the Interest Period applicable thereto
and the making of new LIBOR Loans pro rata based on such new Revolving
Credit Commitment Percentages. In the event that on any such Re-Allocation
Date there is an unpaid principal amount of Base Rate Loans, the Company
shall make prepayments thereof and borrowings of Base Rate Loans so that,
after giving effect thereto, the Base Rate Loans outstanding are held pro
rata based on such new Revolving Credit Commitment Percentages. In the
event that on any such Re-Allocation Date there is an unpaid principal
amount of LIBOR Loans, such LIBOR
4
4
Loans shall remain outstanding with the respective holders thereof until
the expiration of their respective Interest Periods (unless the Company
elects to prepay any thereof in accordance with the applicable provisions
of this Agreement), and interest on and repayments of such LIBOR Loans
will be paid thereon to the respective Lenders holding such LIBOR Loans
pro rata based on the respective principal amounts thereof outstanding.
(e) Notwithstanding anything to the contrary in this subsection 2.8,
(i) in no event shall any transaction effected pursuant to this subsection
2.8 cause the aggregate Revolving Credit Commitments to exceed
$550,000,000, and (ii) no Lender shall have any obligation to increase its
Revolving Credit Commitment unless it agrees to do so in its sole
discretion."
6. Amendment of Section 10 of the Credit Agreement. (a) Section
10.13 of the Credit Agreement is hereby amended by inserting at the end thereof,
before the period, the following: ", that would secure the obligations or
liabilities of any Loan Parties under any Loan Documents".
(b) Section 10 of the Credit Agreement is hereby amended by adding a
new subsection 10.17 at the end thereof, which shall read as follows:
"10.17 Limitation on Designated Senior Indebtedness;
Defeasance. Designate any Indebtedness of such Person, or cause any
Indebtedness of such Person (in each case, other than Indebtedness under
the Loan Documents), to be "Designated Senior Indebtedness", as such term
is defined in the indenture governing the High Yield Notes; or deposit or
set aside any funds for the redemption or defeasance of the High Yield
Notes."
7. Amendment of Schedule 10.2f (Existing Indebtedness) to the Credit
Agreement. Schedule 10.2f (Existing Indebtedness) to the Credit Agreement is
hereby amended by deleting therefrom the references to "Pollution Control
Revenue Bonds, California Pollution Control Financing Authority, due July 1,
2027" in the amount of $19,500,000 and to "Hazardous Waste Treatment Revenue
Bonds, Tooele County, Utah, due July 1, 2027" in the amount of $45,700,000, and
a new Schedule 10.2f in the form of Annex A hereto shall be attached to the
Credit Agreement.
8. New Exhibits to the Credit Agreement. The Credit Agreement is
hereby amended by attaching thereto, in correct order, a new "Exhibit Q" and
"Exhibit R" in the forms attached hereto as Annexes B and C, respectively.
9. Conditions to Effectiveness. This Amendment shall become
effective (the actual date of such effectiveness, the "Amendment Effective
Date") as of the date first above written when (i) counterparts hereof shall
have been duly executed and delivered by each of the Borrowers and the Required
Lenders and acknowledged by each of the Grantors (as defined in the Guarantee
and Collateral Agreement) and (ii) a legal opinion of counsel to
5
5
the Borrowers, in form and substance satisfactory to the General Administrative
Agent, shall have been delivered to the General Administrative Agent.
10. Borrower Representations. Each of the Borrowers represents and
warrants that:
(a) this Amendment has been duly authorized, executed and delivered by
each of the Borrowers;
(b) each of this Amendment, and the Credit Agreement as amended by this
Amendment, constitutes the legal, valid and binding obligation of each of
the Borrowers;
(c) each of the representations and warranties set forth in Section 7 of
the Credit Agreement are true and correct as of the Amendment Effective
Date; provided that references in the Credit Agreement to this "Agreement"
shall be deemed references to the Credit Agreement as amended to date and
by this Amendment; and
(d) after giving effect to this Amendment, there does not exist any
Default or Event of Default.
11. Continuing Effects. Except as expressly waived or amended
hereby, the Credit Agreement and the Guarantee and Collateral Agreement shall
continue to be and shall remain in full force and effect in accordance with its
terms.
12. Expenses. The Company agrees to pay and reimburse the General
Administrative Agent for all of its 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 to such Agent.
13. Counterparts. This Amendment may be executed on any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
6
6
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.
LES, INC.
By:
-----------------------------------------
Title:
XXXXXXX ENVIRONMENTAL SERVICES
(CANADA) LTD.
By:
-----------------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent and Lender
By:
-----------------------------------------
Title:
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent
By:
-----------------------------------------
Title:
TD SECURITIES (USA) INC.,
as Arranger
By: /s/ XXXXXXXX X. X'XXXXXXXX
-----------------------------------------
Title: Managing Director
7
7
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ XXXXX XXXXXXXXX
------------------------------------------
Title: Manager
By:
------------------------------------------
Title:
THE BANK OF NOVA SCOTIA,
as Managing Agent, Co-Documentation Agent
and Lender
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------------
Title: Sr. Relationship Manager
THE FIRST NATIONAL BANK OF CHICAGO,
as Managing Agent, Co-Documentation Agent
and Lender
By:
------------------------------------------
Title:
NATIONSBANK, N.A.,
as Syndication Agent, Managing Agent and
Lender
By: /s/ signature illegible
------------------------------------------
Title: Senior Vice President
WACHOVIA BANK, N.A.,
as Managing Agent and Lender
By: /s/ XXXXXX X. XXXXXXX
------------------------------------------
Title: Vice President
8
8
XXX XXXXXX AMERICAN
CAPITAL PRIME RATE INCOME TRUST
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------------
Title: Senior Vice President & Director
OAK HILL SECURITIES FUND, L.P.
BY: OAK HILL SECURITIES GENPAR, L.P., its
General Partner
BY: OAK HILL SECURITIES MGP, INC., its
General Partner
By:
---------------------------------------
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST
By:
---------------------------------------------
Title:
KZH HOLDING CORPORATION III
By: /s/ XXXXXXXX XXXXXX
---------------------------------------------
Title: Authorized Agent
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
BY: PPM AMERICA, INC., as attorney in fact,
on behalf of Xxxxxxx National Life Insurance
Company
By:
-----------------------------------------
Title:
9
9
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
By:
---------------------------------------------
Title:
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ XXXXX X. XXXXXXX
---------------------------------------------
Title: Director
KZH-CRESCENT CORPORATION
By: /s/ XXXXXXXX XXXXXX
---------------------------------------------
Title: Authorized Agent
KZH-CRESCENT 2 CORPORATION
By: /s/ XXXXXXXX XXXXXX
---------------------------------------------
Title: Authorized Agent
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT COMPANY,
as its Investment Manager
By:
---------------------------------------
Title:
10
10
ARCHIMEDES FUNDING LLC
BY: ING CAPITAL ADVISORS, INC., as
Collateral Manager
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Title: Senior Vice President
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
AS: Attorney-in-Fact and on behalf of FIRST
ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY as Portfolio
By: /s/ XXXXX X. XXXXXXX
--------------------------------------
Title: Managing Director
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Title: Vice President &
Portfolio Manager
KZH-ING-1-CORPORATION
By: /s/ XXXXXXXX XXXXXX
--------------------------------------------
Title: Authorized Agent
11
11
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: INDOSUEZ CAPITAL LUXEMBOURG, as
Collateral Manager
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Title: First Vice President
KZH-ING-2-CORPORATION
By: /s/ XXXXXXXX XXXXXX
-----------------------------------
Title: Authorized Agent
KZH SOLEIL CORPORATION
By: /s/ XXXXXXXX XXXXXX
-----------------------------------
Title: Authorized Agent
DELANO COMPANY
BY: PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor
By:
-----------------------------------
Title:
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
BY: TCW ASSET MANAGEMENT COMPANY,
as Attorney-in-Fact
By:
-----------------------------------
Title:
12
12
ROYALTON COMPANY
BY: PACIFIC INVESTMENT MANAGMENT
COMPANY, as its Investment Advisor
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Title: Sr. Vice President
DEEPROCK & COMPANY
BY: XXXXX XXXXX MANAGEMENT, as
Investment Advisor
By:
------------------------------------
Title:
AERIES FINANCE LTD.
By: /s/ XXXXXX XXX XXXXXXX
------------------------------------------
Title: Director
AG CAPITAL FUNDING PARTNERS, L.P.
BY: XXXXXX, XXXXXX & CO., L.P.,
as Investment Advisor
By: /s/ signature illegible
------------------------------------------
Title: Managing Director
13
13
ALLIANCE CAPITAL FUNDING, L.L.C.
BY: ALLIANCE CAPITAL MANAGEMENT
L.P., as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C.
BY: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of
Alliance Capital Management L.P.
By:
-----------------------------------------------
Title:
AMARA-1 FINANCE LTD.
By:
-----------------------------------------------
Title:
AMARA-2 FINANCE LTD.
By:
-----------------------------------------------
Title:
BALANCED HIGH-YIELD FUND I LTD.
BY: BHF-BANK AKTIENGESELLSCHAFT
acting through its New York Branch
as its attorney-in-fact
By:
-----------------------------------------------
Title:
CAPTIVA FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
-----------------------------------------------
Title: Director
14
14
CAPTIVA II FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
-----------------------------------------------
Title: Director
CERES FINANCE LTD.
By: /s/ XXXXX EGGLISHAW
-----------------------------------------------
Title: Director
CHASE SECURITIES INC., as Agent for
THE CHASE MANHATTAN BANK
By:
-----------------------------------------------
Title:
FLOATING RATE PORTFOLIO
BY: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT INC., as attorney in fact
By:
-----------------------------------------------
Title:
KEYPORT LIFE INSURANCE COMPANY
BY: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT INC., as Portfolio Advisor
By:
-----------------------------------------------
Title:
15
15
KZH-PAMCO CORPORATION
By:
-----------------------------------------------
Title:
MELLON BANK, N.A., solely in its capacity
as Trustee (as directed by Xxxxxxxx Capital
Management, Inc.) and not in its individual
capacity for General Motors Cash Management
Master Trust
By: /s/ XXXXXXXXXX XXXX
-----------------------------------------------
Title: Authorized Signatory
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX INCORPORATED
By:
-----------------------------------------------
Title:
ML CBO IV (CAYMAN) LTD.
BY: PROTECTIVE ASSET MANAGEMENT
COMPANY, as Collateral Manager
By:
-----------------------------------------------
Title:
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
BY: PILGRIM AMERICA INVESTMENTS,
INC., as its Investment Manager
By:
-----------------------------------------------
Title:
16
16
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
BY: PILGRIM AMERICA INVESTMENTS,
INC., as its Investment Manager
By:
-----------------------------------------------
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ XXXXXXXXXXX XXXXXXX
----------------------------------------------
Title: Vice President
MOUNTAIN CLO TRUST
By:
-----------------------------------------------
Title:
PAMCO CAYMAN LTD.
BY: PROTECTIVE ASSET MANAGEMENT
COMPANY, as Collateral Manager
By:
-----------------------------------------------
Title:
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By:
-----------------------------------------------
Title:
17
17
STRATA FUNDING LTD.
By:/s/ signature illegible
-----------------------------------------------
Title: Director
XXX XXXXXX CLO I, LIMITED
BY: XXX XXXXXX AMERICAN CAPITAL
MANAGEMENT INC., as Collateral
Manager
By:/s/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Title: Senior Vice President & Director
18
ACKNOWLEDGEMENT AND CONSENT
The undersigned does hereby acknowledge and consent to the foregoing
Amendment. The undersigned does hereby confirm and agree that, after giving
effect to such Amendment, the Guarantees and Collateral Agreement and other
Collateral Documents in favor of the General Administrative Agent or the
Canadian Administrative Agent, as the case may be, to which it is a party are
and shall continue to be in full force and effect and are hereby confirmed and
ratified in all respects.
LES, INC.
XXXXXXX ENVIRONMENTAL SERVICES,
INC.
XXXXXXX ENVIRONMENTAL SERVICES
(US),INC.
LES MERGER, INC.
LES ACQUISITION, INC.
XXXXXXX ENVIRONMENTAL SERVICES
OF ILLINOIS, INC.
GSX CHEMICAL SERVICES OF OHIO, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BDT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(FS), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(GS), INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
CHATTANOOGA, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
WHITE CASTLE, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(RECOVERY), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TS), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(IMPERIAL VALLEY), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(LOKERN), INC.
XXXXXXX ENVIRONMENTAL SERVICES
OF CALIFORNIA, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
SOUTH CAROLINA, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(NORTH EAST), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TES), INC.
XXXXXXX CHEMICAL SERVICES, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TOC), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TG), INC.
19
19
XXXXXXX ENVIRONMENTAL SERVICES
(ALTAIR), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(WT), INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
BARTOW, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(THERMAL TREATMENT), INC.
LEMC, INC.
XXXXXXX XXXX HOLDINGS, INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
NASHVILLE, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(CLIVE),INC.
XXXXXXX ENVIRONMENTAL SERVICES
(LONE AND GRASSY MOUNTAIN), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(TULSA), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(SAN ANTONIO), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(WICHITA), INC.
XXXXXXX ENVIRONMENTAL SERVICES OF
DELAWARE, INC.
CORSAN TRUCKING, INC.
USPCI, INC. OF XXXXXXX
XXXXXXX ENVIRONMENTAL SERVICES
(SAN XXXX), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
CHEMCLEAR, INC. OF LOS ANGELES
XXXXXXX ENVIRONMENTAL SERVICES
(ROSEMOUNT), INC.
LES HOLDING'S, INC.
EAST CARBON DEVELOPMENT FINANCIAL
PARTNERS, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
NINTH STREET PROPERTIES, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(MT. PLEASANT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(DEER TRAIL), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(MINNEAPOLIS), INC.
20
20
XXXXXXX ENVIRONMENTAL SERVICES
(LOS ANGELES), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BATON ROUGE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(PLAQUEMINE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(BRIDGEPORT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(DEER PARK), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(XXXXXX), INC.
XXXXXXX ENVIRONMENTAL, INC.
XXXXXXX ENVIRONMENTAL SERVICES
(SUSSEX), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(GLOUCESTER), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(CUSTOM TRANSPORT), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(ARAGONITE), INC.
XXXXXXX ENVIRONMENTAL SERVICES
(PUERTO RICO), INC.
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Secretary
21
ANNEX A
SCHEDULE 10.2f EXISTING INDEBTEDNESS
Tax Exempt Bonds:
Hazardous Waste Disposal Revenue Bonds $ 10,000,000
Tooele County, Utah, Due August 1, 2010
Industrial Development Revenue Funding and 15,700,000
Improvements Bonds
The Industrial Development Board of The
Metropolitan Government of Nashville and
Davidson County (Tennessee), Due May 1, 2003
County of Lexington, South Carolina 2,700,000
Industrial Revenue Bonds
Due December 1, 0000
Xxxx xx Xxxxxx, Xxxxx Industrial Development Authority 2,700,000
Industrial Revenue Bonds, Due December 1, 2009
Total
-----------
31,100,000
===========
Amounts held in Trust relating to the above tax exempt bonds:
Hazardous Waste Disposal Revenue Bonds 1,349,317
Tooele County, Utah, Due August 2010
Industrial Development Revenue Funding and 8,659,230
Improvements Bonds
The Industrial Development Board of The
Metropolitan Government of Nashville and
Davidson County (Tennessee), Due May 1, 2003
-----------
10,008,547
===========
-----------
Net Amount of Tax Exempt Bonds: 21,091,453
===========
Capital Leases:
GE Capital 484,482
Xerox 19,156
-----------
503,638
===========
Notes:
Xxxxxx (Xxxxx) 146,745
Grassy Mountain (Semnani) 158,436
Miscellaneous Mortgages 593,000
Deutsche Bank, Bochum 151,000
Safety-Kleen Corporation Senior Debenture 9.25% 100,000,000
Due September 15, 1999
-----------
101,049,181
===========
22
ANNEX B
EXHIBIT Q
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Amended and Restated
Credit Agreement, dated as of April 3, 1998 (as the same may be amended,
supplemented or otherwise modified, the "Credit Agreement"), among LES, INC., a
Delaware corporation (the "Company"), XXXXXXX ENVIRONMENTAL SERVICES (CANADA)
LTD., a Canadian corporation and a wholly owned Subsidiary of the Company (the
"Canadian Borrower"; together with the Company, the "Borrowers"), the several
banks and other financial institutions or entities from time to time parties
thereto (the "Lenders"), TORONTO DOMINION (TEXAS), INC., as general
administrative agent (in such capacity, the "General Administrative Agent"), THE
TORONTO-DOMINION BANK, as Canadian administrative agent (in such capacity, the
"Canadian Administrative Agent"; together with the General Administrative Agent,
the "Administrative Agents"), TD SECURITIES (USA) INC., as advisor to the
Borrowers and arranger of the commitments described in the Credit Agreement, THE
BANK OF NOVA SCOTIA, NATIONSBANK, N.A., THE FIRST NATIONAL BANK OF CHICAGO and
WACHOVIA BANK, N.A., as managing agents (each, in such capacity, a "Managing
Agent"), THE BANK OF NOVA SCOTIA and THE FIRST NATIONAL BANK OF CHICAGO, as
co-documentation agent (each, in such capacity, a "Co-Documentation Agent"), and
NATIONSBANK, N.A., as syndication agent (in such capacity, the "Syndication
Agent").
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.8 thereof that
any bank, financial institution or other entity, although not originally a party
thereto, may become a party to the Credit Agreement in accordance with the terms
thereof by executing and delivering to the Borrowers and the General
Administrative Agent a supplement to the Credit Agreement in substantially the
form of this Supplement; and
WHEREAS, the undersigned was not an original party to the Credit
Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement is
accepted by the Borrowers and the General Administrative Agent, become a
Lender for all purposes of the Credit Agreement to the same extent as if
originally a party thereto, with a Revolving Credit Commitment of
$__________________.
2. The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section ___ thereof and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Supplement; (c) agrees
that it has made and will, independently and without reliance upon the
General Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the General
Administrative Agent to take such action as administrative agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement or any instrument or document furnished pursuant hereto or
thereto as are delegated to the General Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and
will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
Lender including, without limitation, if it is organized under the laws of
a jurisdiction outside the United States, its obligation pursuant to
Section 6.12 of the Credit Agreement.
3. The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
23
2
4. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By
--------------------------------
Title:
Accepted this day of
-----
--------------, ----.
LES, INC.
By
----------------------------
Title:
Accepted this day of
----
--------------, ----.
XXXXXXX ENVIRONMENTAL SERVICES (CANADA) LTD.
By
----------------------------
Title:
Accepted this day of
----
--------------, ----.
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent
By
----------------------------
Title:
24
ANNEX C
EXHIBIT R
FORM OF COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _________________, to the Amended and Restated
Credit Agreement, dated as of April 3, 1998 (as the same may be amended,
supplemented or otherwise modified, the "Credit Agreement"), among LES, INC., a
Delaware corporation (the "Company"), XXXXXXX ENVIRONMENTAL SERVICES (CANADA)
LTD., a Canadian corporation and a wholly owned Subsidiary of the Company (the
"Canadian Borrower"; together with the Company, the "Borrowers"), the several
banks and other financial institutions or entities from time to time parties
thererto (the "Lenders"), TORONTO DOMINION (TEXAS), INC., as general
administrative agent (in such capacity, the "General Administrative Agent"), THE
TORONTO-DOMINION BANK, as Canadian administrative agent (in such capacity, the
"Canadian Administrative Agent"; together with the General Administrative Agent,
the "Administrative Agents"), TD SECURITIES (USA) INC., as advisor to the
Borrowers and arranger of the commitments described in the Credit Agreement, THE
BANK OF NOVA SCOTIA, NATIONSBANK, N.A., THE FIRST NATIONAL BANK OF CHICAGO and
WACHOVIA BANK, N.A., as managing agents (each, in such capacity, a "Managing
Agent"), THE BANK OF NOVA SCOTIA and THE FIRST NATIONAL BANK OF CHICAGO, as
co-documentation agent (each, in such capacity, a "Co-Documentation Agent"), and
NATIONSBANK, N.A., as syndication agent (in such capacity, the "Syndication
Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the provisions of Section 2.8 of the Credit
Agreement, the undersigned may increase the amount of its Revolving Credit
Commitment in accordance with the terms thereof by executing and delivering to
the Borrowers and the General Administrative Agent a supplement to the Credit
Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its
Revolving Credit Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of
the Credit Agreement, that on the date this Supplement is accepted by the
Borrowers and the General Administrative Agent it shall have its Revolving
Credit Commitment increased by $______________, thereby making the amount
of its Commitment $______________.
2. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
25
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By
--------------------------------
Title:
Accepted this day of
-----
--------------, ----.
LES, INC.
By
----------------------------
Title:
Accepted this day of
----
--------------, ----.
XXXXXXX ENVIRONMENTAL SERVICES (CANADA) LTD.
By
----------------------------
Title:
Accepted this day of
----
--------------, ----.
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent
By
----------------------------
Title:
