Exhibit (4)(a)
Ninth Amendment dated 1/14/02 to A&R DIP
NINTH WAIVER (this "WAIVER") dated as of January 14, 2002, to
the Amended and Restated Debtor in Possession Credit Agreement, initially dated
as of June 11, 2000, amended and restated as of July 19, 2000, as amended (the
"CREDIT AGREEMENT") among SAFETY-KLEEN SERVICES, INC., a Delaware corporation
(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
DOMINION (TEXAS), INC., as administrative agent (the "GENERAL ADMINISTRATIVE
AGENT"), and THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT"), as collateral agent
and underwriter (the "COLLATERAL AGENT"; collectively with the General
Administrative Agent, the "UNDERWRITERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested that the General Administrative
Agent and the Lenders agree to waive 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 waiver 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
terms used herein shall have the meanings given to them in the Credit Agreement.
2. Waiver. Section 4.3(a) of the Credit Agreement provides that, if
at any time during the Commitment Period, the sum of the aggregate outstanding
Loans and L/C Obligations exceeds the Borrowing Base, the Borrower shall pay to
the General Administrative Agent an amount equal to such excess. The General
Administrative Agent and the Lenders hereby waive such requirement until the
earlier of January 31, 2002 and the date, if any, the Borrowing Base falls below
$68,000,000, provided that, as long as the sum of the aggregate outstanding
Loans and L/C Obligations exceeds the Borrowing Base, the Borrower shall be
prohibited from requesting any additional extensions of credit under the Credit
Agreement, except for a letter of credit in the approximate amount of $2,000,000
for the benefit of Blue Cross/Blue Shield which has previously been discussed
with the General Administrative Agent.
3. Conditions to Effectiveness. This Waiver shall become effective as
of the date first above written when each of the Required Lenders shall have
executed and delivered this Waiver.
4. Continuing Effects. Except as expressly waived or amended hereby,
the Credit Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms.
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5. Fees and Expenses. The Borrower agrees to (i) pay the General
Administrative Agent for the account of each Lender a fee in the amount of .25%
of the Revolving Credit Facility and (ii) pay and reimburse the General
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 Waiver, including the reasonable fees and expenses of counsel.
6. Counterparts. This Waiver 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.
7. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
093110-0154-08480-NY03.2143697.2
IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: CFO
093110-0154-08480-NY03.2143697.2
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent, Underwriter
and Lender
By:
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Name:
Title:
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By:
-------------------------------
Name:
Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, Underwriter and Lender
By:
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Name:
Title:
Signature Page to Waiver
093110-0154-08480-NY03.2143697.2
GSCP RECOVERY, INC.
By:
--------------------------
Name:
Title:
Signature Page to Waiver
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GSCP RECOVERY II, L.P.
By: GSC Recovery II GP, L.P.,
its general partner
By: GSC RII, LLC, its general partner
By: GSCP (NJ) Holdings, L.P.,
its sole member
By: GSCP (NJ), Inc.,
its general partner
By:
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Name:
Title:
Signature Page to Waiver
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BANK ONE, NA
By:
---------------------------------
Name:
Title:
Signature Page to Waiver
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XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By:
-----------------------------------
Name:
Title:
Signature Page to Waiver
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SENIOR DEBT PORTFOLIO
By Boston Management and Research, as Advisor
By:
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Name:
Title:
Signature Page to Waiver
093110-0154-08480-NY03.2143697.2
