FIRST AMENDMENT, dated as of October 31, 2000 (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 (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 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 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
is hereby amended by
(a) inserting the phrase "five-year" immediately preceding the
phrase "business plan and related financial models" in the definition of
"Business Plan"; and
(b) inserting the following new definitions in their appropriate
alphabetical order:
"AUDITED FINANCIAL STATEMENTS": as defined in
Section7.1(d).
"AUDITED FINANCIAL STATEMENTS DELIVERY DATE": as defined in
Section 7.1(d)
"MANAGEMENT CERTIFIED FINANCIAL STATEMENTS": as defined in
Section 7.1(a).
"MANAGEMENT CERTIFIED FINANCIAL STATEMENTS DELIVERY DATE":
as defined in Section 7.1(a).
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2
3. AMENDMENT OF SECTION 6.2(K). Section 6.2(k) of the Credit
Agreement is hereby amended by replacing the, date "September 12, 2000" with the
date "December 15, 2000".
4. AMENDMENT OF SECTION 7.1. Section 7.1 of the Credit Agreement
is hereby amended by
(a) deleting section 7. 1 (a) in its entirety and replacing it
with the following new Section 7. 1 (a):
"(a) as soon as available, but in any event by
December 31, 2000, copies of unaudited consolidated balance
sheets of Holdings and its consolidated subsidiaries and
the related unaudited consolidated statements of income and
retained earnings and cash flow of Holdings and its
consolidated subsidiaries, for the years ended August 31,
1997, August 31, 1998, August 31, 1999 and August 31, 2000,
which statements shall be certified by a Responsible
Officer as to the completeness and accuracy thereof in a
manner satisfactory to the General Administrative Agent
(collectively, the "MANAGEMENT CERTIFIED FINANCIAL
STATEMENTS"), PROVIDED, that the General Administrative
Agent in its reasonable discretion may, but shall not be
required to, extend the required date of delivery of the
Management Certified Financial Statements (the "MANAGEMENT
CERTIFIED FINANCIAL STATEMENTS DELIVERY DATE") for a period
not to exceed one month;"
(b) inserting the phrase "commencing with fiscal year 2001," at
the beginning of Section 7.1(b);
(c) deleting the word "and" immediately following Section 7.1(b);
(d) replacing the phrase "fiscal year beginning September 1, 2000"
with the phrase "commencing on the Audited Financial Statements Delivery
Date" in Section 7.1(c);
(e) inserting the word "and" immediately following the semicolon
after Section 7.1(c);
(f) inserting the following new Section 7.1(d):
"(d) (i) as soon as available, but in any event by
the date that is one month after the delivery of the
Management Certified Financial Statements, 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 each case in
comparative form the figures for the previous year,
reported on without a qualification arising, out of the
scope of the audit, by Arthur Andersen, or
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3
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 STATEMENTS") PROVIDED, that the General
Administrative Agent in its reasonable discretion may, but
shall not be required to, extend the required date of
delivery (the "AUDITED FINANCIAL STATEMENTS DELIVERY DATE")
of the Audited Financial Statements for up to two one month
periods not to exceed 60 days and (ii) as soon as
available, but in any event by the date that is one month
after the Audited Financial Statements Delivery Date, the
unaudited consolidated balance sheets of Holdings and its
consolidated subsidiaries and the related unaudited
consolidated statements of income and retained earnings and
of cash flows of Holdings and its consolidated subsidiaries
for the fiscal quarter ending November 30, 2000, 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. Section 7.2 of the Credit Agreement
is hereby amended by
(a) 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 45
days after the Audited Financial Statements Delivery Date,
a report setting, forth the calculations demonstrating
compliance (or the failure to comply) with the covenants
established pursuant to Section 7.11, in a form reasonably
satisfactory to the General Administrative Agent;"
(b) deleting the word "and" immediately following the semicolon in
Section 7.2(g) and inserting the following new Sections 7.2 (h) and
7.2(i):
"(h) with respect to any proposed Asset Sale or
other Disposition greater than $250,000 but less than
$5,000,000, a memorandum from the Borrower: (i) describing
the asset, how such asset is used in the Borrower's
business and other potential uses of the asset, (ii)
identifying the legal entity owning, the asset, (iii)
specifying the estimated tax or estimated book basis of
asset, (iv) explaining the rationale for the proposed sale,
(v) summarizing business losses, cost increases or savings
associated with the sale, (vi) summarizing the proposed
asset sale process and (vii) to the extent available,
summarizing appraisal(s) or other underlying valuation
analyses;
<PAGE>
4
"(i) with respect to any proposed Asset Sale or
other Disposition equal to or greater than $5,000,000, a
memorandum from the Borrower (i) containing the information
described in Section 7.2(h) (ii) a detailed financial
(cost/benefit) analysis of the asset demonstrating why a
sale is superior to continued operation or redeployment of
the asset, (iii) copies of any solicitation/offering
memoranda/term sheets or other sales materials prepared in
conjunction with the sale process and (iv) any supporting
analyses prepared by the Borrower's financial advisors;
and"
(c) renumbering current Section 7.2(h) as new Section 7.2(j).
6. AMENDMENT OF SECTION 7.11. Section 7.11 of the Credit
Agreement is hereby amended by replacing Section 7.11 in its entirety as
follows:
"7.11 FINANCIAL CONDITION COVENANTS. On or before October 31,
2000, the Borrower shall provide each Lender with a preliminary draft of
the Business Plan, and, within 45 days after the Audited Financial
Statements Delivery Date, shall provide each Lender with a copy of the
final Business Plan. 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. Within 15 days after the Audited Financial Statements
Delivery Date, 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 9. Section 9 of the Credit Agreement is
hereby amended by
(a) inserting the parenthetical phrase "(other than the delivery
of information required by Sections 7.2(h) and 7.2(i))" immediately
following the phrase "The Borrower or any other Loan Party shall default
in the performance or observance of any other agreement" in Section 9(e);
and
(b) replacing Section 9(p) in its entirety with the following new
Section 9(p):
"(p) the Borrower shall have failed to deliver to the
Underwriters (i) by October 31, 2000, a preliminary draft of the
Business Plan, (ii) within 45 days after the Audited Financial
Statements Delivery Date, the final Business Plan or (iii) within
30 days after the delivery of the Business Plan, a preliminary
Plan of Reorganization restructuring proposal consistent with the
final Business Plan;"
8. REPRESENTATIONS AND WARRANTIES. After giving effect to this
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
<PAGE>
5
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.
9. FEES. As consideration for the Lenders' agreements under this
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 October 31, 2000, an amendment fee (the
"AMENDMENT FEE") in an aggregate amount equal to 0.375 % of the Revolving Credit
Commitments.
10. 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, including the reasonable fees and expenses of
counsel.
11. EFFECTIVENESS. This Amendment shall become effective on the
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 Agency Fee and the Amendment Fee.
12. 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.
13. COUNTERPARTS. This Amendment 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 may be delivered by
facsimile transmission of the relevant signature pages hereof.
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
<PAGE>
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/ Larry W. Singleton
-------------------------------
Name: Larry W. Singleton
Title: C.F.O.
10/31/2000
<PAGE>
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent,
Underwriter and Lender
By: -------------------------------
Name:
Title:
<PAGE>
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By: -------------------------------
Name:
Title:
<PAGE>
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, Underwriter and Lender
By: -------------------------------
Name:
Title:
<PAGE>
BANK OF AMERICA, N.A.
By: -------------------------------
Name:
Title:
<PAGE>
BANK ONE, NA
By: -------------------------------
Name:
Title:
<PAGE>
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: -------------------------------
Name:
Title:
<PAGE>
SENIOR DEBT PORTFOLIO
By Boston Management and Research,
as Advisor
By: -------------------------------
Name:
Title:
