Exhibit (4)(u)
Eighth Amendment and Waiver to A&R DIP
EIGHTH AMENDMENT AND WAIVER, dated as of November [27], 2001
(this "AMENDMENT AND WAIVER"), 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:
- - - - - - - - - -
WHEREAS, the Borrower has requested that the General
Administrative Agent and the Lenders agree to amend certain provisions and
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 amendments and waivers 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. AMENDMENT OF SECTION 3.1. Section 3.1(iii) of the Credit
Agreement is hereby amended by replacing the phrase "up to $30,000,000 of
Letters of Credit shall be available" with the phrase "up to $31,000,000 of
Letters of Credit shall be available".
3. WAIVER. The General Administrative Agent and the Required
Lenders hereby waive until January 31, 2002 (i) compliance with all provisions
of Sections 7.1, 7.2(d) and 7.11 of the Credit Agreement pertaining to the
Borrower and (ii) any Default or Event of Default that occurred by virtue of the
Borrower's failure to satisfy the requirements of Sections 7.1, 7.2(d) and 7.11
as such Sections were in effect prior to this Amendment and Waiver.
4. REPRESENTATIONS AND WARRANTIES. After giving effect to this
Amendment and Waiver, 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.
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5. EXPENSES. The Borrower agrees to 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 Amendment and Waiver, including the reasonable fees and
expenses of counsel.
6. EFFECTIVENESS. This Amendment and Waiver shall become
effective on the date upon which the General Administrative Agent shall have
received counterparts hereof duly executed by the Borrower and the Required
Lenders.
7. 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.
8. COUNTERPARTS. This Amendment and Waiver may be executed by the
parties hereto on one or more counterparts, and all of such counterparts shall
be deemed to constitute one and the same instrument. This Amendment and Waiver
may be delivered by facsimile transmission of the relevant signature pages
hereof.
9. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[Balance of Page Intentionally Blank]
093110-0154-08480-NY03.2132006.2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and 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: ----------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
093110-0154-08480-NY03.2132006.2
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent,
Underwriter and Lender
By: ------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
093110-0154-08480-NY03.2132006.2
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, Underwriter and
Lender
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
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GSCP Recovery, Inc.
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
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GSC 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: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
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BANK ONE, NA
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
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XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
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SENIOR DEBT PORTFOLIO
By Boston Management and Research, as
Advisor
By: ------------------------------
Name:
Title:
Signature Page to Eighth Amendment and Waiver
093110-0154-08480-NY03.2132006.2
