SECOND AMENDMENT AND WAIVER, dated as of February 28, 2001 (this
"Amendment"), 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, supplemented or otherwise modified from time to time, 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:
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WHEREAS, the Borrower has requested that the General Administrative
Agent and the Lenders agree to (i) amend certain provisions of the Credit
Agreement upon the terms and subject to the conditions set forth herein and (ii)
waive certain Defaults and Events of Default to and including March 31, 2001;
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 7.l(d)(i). Section 7.1(d)(i) is hereby
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amended by replacing the phrase "as soon as available, but in any event by the
date that is one month after the delivery of the Management Certified Financial
Statements" with the phrase "as soon as available, but in any event by March 31,
2001".
3. Amendment of Section 9(q). Section 9(q) of the Credit Agreement
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is hereby amended by replacing the date "February 28, 2001" with the date "March
31, 2001".
4. Waiver. The Required Lenders hereby waive any Default or Event
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of Default arising by virtue of the Debtors' failure to satisfy the requirements
of(i) Section 7.1(d)(i) and (ii) Section 9(q); provided, that such waiver shall
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expire on March 31,2001.
5. 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.
6. Fees. As consideration for the Lenders' agreements under this
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Amendment, the Borrower agrees to pay, upon the execution and delivery hereof,
to the General Administrative Agent, for the account of each Lender that
executes and delivers this Agreement by March 13, 2001, an amendment fee (the
"Amendment Fee") in an aggregate amount equal to 3/16 of 1% of the Revolving
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Credit Commitments.
7. 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.
8. Effectiveness. This Amendment shall become effective on the
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date upon which the General Administrative Agent shall have received (i)
counterparts hereof duly executed by the Borrower and the Required Lenders and
(ii) payment of the Amendment Fee.
9. 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.
10. 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.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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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.
SAEETY-KLEEN SERVICES, INC.
By: /S/ Xxxxx X.Xxxxxxxxx
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Name: Xxxxx X.Xxxxxxxxx
Title: CFO
Date: 03/7/2001
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: 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
Advisor
By: /S/ Payson X. Xxxxxxxxx
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Name: Payson X. Xxxxxxxxx
Title: Vice President
