AMENDED AND RESTATED
$100,000,000
DEBTOR IN POSSESSION
CREDIT AGREEMENT
AMONG
SAFETY-KLEEN SERVICES, INC.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
TORONTO DOMINION (TEXAS), INC.,
AS GENERAL ADMINISTRATIVE AGENT AND UNDERWRITER,
AND
THE CIT GROUP/BUSINESS CREDIT, INC.
AS COLLATERAL AGENT AND UNDERWRITER,
INITIALLY DATED AS OF JUNE 11, 2000
AMENDED AND RESTATED AS OF JULY 19, 2000
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Table of Contents
Page
SECTION 1. DEFINITIONS............................................................................................3
1.1 Defined Terms........................................................................................3
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1.2 Other Definitional Provisions.......................................................................17
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SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS......................................................................18
2.1 Revolving Credit Commitments........................................................................18
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2.2 Procedure for Revolving Credit Borrowing............................................................18
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2.3 Repayment of Revolving Credit Loans; Evidence of Debt...............................................19
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2.4 Termination or Reduction of Revolving Credit Commitments............................................20
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2.5 Funding Mechanisms During Borrower Notification Period..............................................20
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SECTION 3. LETTERS OF CREDIT.....................................................................................20
3.1 L/C Commitment......................................................................................20
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3.2 Procedure for Issuance of Letter of Credit..........................................................21
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3.3 Commissions, Fees and Other Charges.................................................................21
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3.4 L/C Participations..................................................................................22
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3.5 Reimbursement Obligation of the Borrower............................................................23
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3.6 Obligations Absolute................................................................................23
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3.7 Letter of Credit Payments...........................................................................24
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3.8 Applications........................................................................................24
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SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................24
4.1 Commitment Fee......................................................................................24
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4.2 Optional Prepayments................................................................................24
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4.3 Mandatory Prepayments and Commitment Reductions.....................................................25
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4.4 Conversion and Continuation Options.................................................................27
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4.5 Minimum Amounts of Tranches.........................................................................28
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4.6 Interest Rates and Payment Dates....................................................................28
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4.7 Computation of Interest and Fees....................................................................29
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4.8 Inability to Determine Interest Rate................................................................29
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4.9 Pro Rata Treatment and Payments.....................................................................30
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4.10 Illegality.........................................................................................32
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4.11 Requirements of Law................................................................................32
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4.12 Taxes..............................................................................................33
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4.13 Indemnity..........................................................................................36
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4.14 Change of Lending Office; Replacement Lender.......................................................36
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SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................................37
5.1 Accuracy of Information, etc........................................................................37
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5.2 No Change...........................................................................................37
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5.3 Corporate Existence; Compliance with Law............................................................37
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5.4 Corporate Power; Authorization; Enforceable Obligations.............................................37
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5.5 No Legal Bar........................................................................................38
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5.6 No Material Litigation..............................................................................38
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5.7 No Default..........................................................................................38
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5.8 Ownership of Property; Liens........................................................................38
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5.9 Intellectual Property...............................................................................38
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5.10 No Burdensome Restrictions.........................................................................39
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5.11 Taxes..............................................................................................39
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5.12 Federal Regulations................................................................................39
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5.13 ERISA..............................................................................................39
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5.14 Investment Company Act; Other Regulations..........................................................40
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5.15 Affiliates.........................................................................................40
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5.16 Purpose of Loans...................................................................................40
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5.17 Environmental Matters..............................................................................40
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5.18 Security Documents.................................................................................41
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5.19 Bank Accounts......................................................................................41
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SECTION 6. CONDITIONS PRECEDENT..................................................................................42
6.1 Conditions to Initial Extensions of Credit..........................................................42
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6.2 Conditions to Extension of Credit...................................................................44
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SECTION 7. AFFIRMATIVE COVENANTS.................................................................................45
7.1 Financial Statements................................................................................45
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7.2 Certificates; Other Information.....................................................................46
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7.3 Collateral Reports..................................................................................47
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7.4 Collateral Audit....................................................................................48
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7.5 Conduct of Business and Maintenance of Existence....................................................48
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7.6 Maintenance of Property; Insurance..................................................................48
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7.7 Inspection of Property; Books and Records; Discussions..............................................48
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7.8 Notices.............................................................................................49
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7.9 Environmental Laws..................................................................................49
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7.10 Further Assurances.................................................................................51
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7.11 Financial Condition Covenants......................................................................51
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SECTION 8. NEGATIVE COVENANTS....................................................................................51
8.1 Proceeds of Revolving Credit Loans..................................................................51
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8.2 Limitation on Indebtedness..........................................................................52
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8.3 Limitation on Liens.................................................................................52
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8.4 Limitation on Guarantee Obligations.................................................................53
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8.5 Limitation on Fundamental Changes...................................................................53
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8.6 Limitation on Disposition of Assets.................................................................53
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8.7 Limitation on Dividends.............................................................................54
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8.8 Limitation on Investments, Loans and Advances.......................................................54
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8.9 Limitation on Transactions with Affiliates..........................................................55
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8.10 Limitation on Sales and Leasebacks.................................................................55
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8.11 Limitation on Changes in Fiscal Year...............................................................55
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8.12 Limitation on Lines of Business....................................................................55
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8.13 Chapter 11 Claims; Payment of Pre-Petition Date Claims.............................................56
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8.14 Reclamation Claims; Bankruptcy Code Section 546(g) Agreements......................................56
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8.15 Employment Arrangements............................................................................56
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SECTION 9. EVENTS OF DEFAULT.....................................................................................56
SECTION 10. THE GENERAL ADMINISTRATIVE AGENT AND COLLATERAL AGENT................................................59
10.1 Appointments.......................................................................................59
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10.2 Delegation of Duties...............................................................................60
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10.3 Exculpatory Provisions.............................................................................60
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10.4 Reliance by General Administrative Agent and Collateral Agent......................................60
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10.5 Notice of Default..................................................................................61
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10.6 Non-Reliance on the General Administrative Agent, Collateral Agent and Other Lenders...............61
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10.7 Indemnification....................................................................................62
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10.8 Agents in Their Respective Individual Capacities...................................................62
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10.9 Successor Agent....................................................................................63
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SECTION 11. MISCELLANEOUS........................................................................................63
11.1 Amendments and Waivers.............................................................................63
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11.2 Notices............................................................................................64
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11.3 No Waiver; Cumulative Remedies.....................................................................65
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11.4 Survival of Representations and Warranties.........................................................66
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11.5 Payment of Expenses and Taxes......................................................................66
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11.6 Successors and Assigns; Participations and Assignments.............................................67
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11.7 Adjustments; Set-off...............................................................................69
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11.8 Counterparts.......................................................................................70
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11.9 Severability.......................................................................................70
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11.10 Integration.......................................................................................70
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11.11 GOVERNING LAW.....................................................................................71
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11.12 Submission To Jurisdiction; Waivers...............................................................71
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11.13 Acknowledgments...................................................................................71
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11.14 WAIVER OF JURY TRIAL..............................................................................72
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11.15 Confidentiality...................................................................................72
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SCHEDULES
1.1A Commitments of Lenders
1.1B Addresses for Notices
1.1C Blocked Accounts
5.6 Litigation
5.8 Existing Liens
5.9 Intellectual Property Matters
5.15 Affiliates
5.17 Environmental Matters
8.2(b) Existing Indebtedness
8.3(f) Existing Liens
8.4(a) Existing Guarantee Obligations
8.8 Existing Investments
EXHIBITS
A Form of Guarantee and Collateral Agreement
B Form of Borrowing Base Certificate
C Form of Note
D Form of Closing Certificate
E Form of Borrowing Certificate
F Form of Final Order
G Form of Assignment and Acceptance
H Form of Blocked Account Agreement
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AMENDED AND RESTATED DEBTOR IN POSSESSION CREDIT AGREEMENT, initially
dated as of June 11, 2000, amended and restated as of July 19, 2000 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, letter of credit
issuing bank (the "ISSUING LENDER"), TORONTO DOMINION (TEXAS), INC., as
administrative agent (as hereinafter defined, 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, on June 9, 2000 (the "PETITION DATE"), the Borrower, its sole
shareholder, Safety-Kleen Corp., a Delaware corporation ("HOLDINGS"), and the
wholly owned subsidiaries of the Borrower incorporated under the laws of one of
the United States of America (the "SUBSIDIARIES"; collectively with Holdings,
the "GUARANTORS") filed voluntary petitions under Section 301 of the Bankruptcy
Code with the United States Bankruptcy Court for the District of Delaware (the
"BANKRUPTCY COURT") initiating their Chapter 11 cases (the "CASES") and have
continued in the possession of their assets and in the management of their
businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, the Borrower and the Underwriters entered into a Credit
Agreement dated as of June 11, 2000 (the "INTERIM CREDIT AGREEMENT") and the
Bankruptcy Court entered its interim order in respect thereof on or about June
14, 2000 ("INTERIM ORDER") authorizing extensions of credit thereunder of up to
$40,000,000 prior to final approval of the financing arrangements contemplated
hereby;
WHEREAS, the Borrower has requested that the Lenders make available a
revolving credit loan and letter of credit facility in an aggregate principal
amount not to exceed $100,000,000 (inclusive of a $35,000,000 sublimit for the
issuance of Letters of Credit (as hereinafter defined), guaranteed by the
Guarantors, the proceeds of which will be used (a) for working capital and
capital expenditures of the Borrower and the Subsidiaries, (b) for payment of
Chapter 11 expenses, including professional fees, (c) the refinancing of the
Demand Loan Agreement dated as of March 14, 2000, to Safety-Kleen Systems, Inc.,
guaranteed by the Borrower, (d) the funding of adequate protection payments to
the prepetition secured lenders under the Amended and Restated Credit Agreement
dated as of April 3, 1998, among the Borrower, Safety-Kleen (Canada) Ltd., the
General Administrative Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, and certain other financial institutions (as hereinafter
defined, the "PREPETITION CREDIT AGREEMENT"), and (e) the payment of interest,
fees and expenses hereunder, in each case subject to the terms of this
Agreement, the orders entered from time to time by the Bankruptcy Court and the
Budget (as hereinafter defined);
WHEREAS, to provide security for the repayment and reimbursement of the
extensions of credit and the payment of the other obligations of the Borrower
and the Guarantors
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hereunder and under the other Loan Documents, the Borrower and the Guarantors
shall provide to the General Administrative Agent (for the benefit of the
General Administrative Agent and the Lenders), pursuant to this Agreement, the
Guarantee and Collateral Agreement and the Orders:
(a) an allowed administrative expense claim in the Cases
pursuant to Section 364(c)(1) of the Bankruptcy Code having a
superpriority over all administrative expenses of the kind specified in
Sections 503(b) and 507(b) of the Bankruptcy Code;
(b) a perfected first priority Lien, pursuant to Section
364(c)(2) of the Bankruptcy Code, upon all unencumbered personal
property of the Borrower and the Guarantors (including without
limitation cash, receivables, inventory, equipment, vehicles,
furniture, bank accounts, trademarks, investment property, intercompany
claims, proceeds of the sale of real property, claims against third
parties and other general intangibles and the proceeds of any of the
foregoing) and all Leaseholds (as hereinafter defined);
(c) a perfected second priority Lien, pursuant to Section
364(c)(3) of the Bankruptcy Code, upon all personal property of the
Borrower and the Guarantors (including without limitation cash,
receivables, inventory, equipment, vehicles, furniture, bank accounts,
trademarks, investment property, intercompany claims, proceeds of the
sale of real property, claims against third parties and other general
intangibles and the proceeds of any of the foregoing) and all
Leaseholds (as hereinafter defined) (other than property of the
Borrower and the Guarantors subject to Liens securing the obligations
under the Prepetition Credit Agreement) that is otherwise subject to
valid and perfected Liens in existence on the Petition Date and subject
to other Liens permitted to exist hereunder; and
(d) a perfected, first priority, senior, priming Lien,
pursuant to Section 364(d)(1) of the Bankruptcy Code, upon all personal
property of the Borrower and the Guarantors (including without
limitation cash, receivables, inventory, equipment, furniture, bank
accounts, trademarks, investment property, intercompany claims, claims
against third parties and other general intangibles and the proceeds of
any of the foregoing) that is subject to the Liens securing the
obligations under the Prepetition Credit Agreement and certain real
property securing such obligations (the "PREPETITION COLLATERAL") (but,
in the case of the Elgin Loan Collateral, such Lien shall only be
granted upon repayment of the Elgin Loan Obligations, and only in the
amount so repaid plus interest accrued and paid on the Loans used to
repay the Elgin Loan Obligations) and any Liens granted after the
Petition Date to provide adequate protection in respect of such
obligations provided that such first priority, senior, priming Lien
shall be subject to any Liens permitted under the Prepetition Credit
Agreement to be prior to the Liens securing the Prepetition Credit
Agreement;
WHEREAS, all of the claims and the Liens granted hereunder and pursuant
to the Guarantee and Collateral Agreement (as hereinafter defined) and the Final
Order (as hereinafter defined) to the General Administrative Agent and the
Lenders shall be subject to the Carve-Out (as hereinafter defined);
3
WHEREAS, the Lenders are willing to make such credit facility available
upon and subject to the terms and conditions hereinafter set forth;
WHEREAS, the Borrower, the Lenders and the Underwriters desire to amend
and restate the Interim Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the following meanings:
"ACCOUNTS": as defined in the Guarantee and Collateral Agreement.
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"AGREEMENT": this Amended and Restated Debtor in Possession Credit
Agreement, as amended, supplemented or otherwise modified from time to
time.
"APPLICABLE MARGIN": on any day, for Base Rate Loans, 1.00%, and for
LIBOR Loans, 3.00%.
"APPLICATION": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to issue a Letter
of Credit.
"APPROVED FUND": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"ASSET SALE": any Disposition of assets or series of related
Dispositions of assets, excluding any Disposition of assets permitted by
Section 8.6.
"ASSIGNEE": as defined in Section 11.6(c).
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Lender at any time,
an amount equal to the excess, if any, of (a) such Lender's Revolving
Credit Commitment
4
OVER (b) such Lender's Revolving Credit Percentage of the sum of the then
outstanding aggregate principal amount of Loans and L/C Obligations.
"BANKRUPTCY CODE": the Bankruptcy Reform Act of 1978, as heretofore
and hereafter amended, and codified as 11 U.S.C.ss.ss.101 ET SEQ.
"BANKRUPTCY COURT": as defined in the Recitals to this Agreement.
"BASE RATE": a rate per annum determined by the General Administrative
Agent on a daily basis, equal to the higher of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day
plus one half of one percent (.50 of 1%) per annum.
"BASE RATE LOAN": any Loan the rate of interest applicable to which is
based upon the Base Rate.
"BLOCKED ACCOUNT": any bank account of a Loan Party that is subject to
irrevocable written instructions from the Borrower satisfactory to the
Collateral Agent (which will require, in the case of the bank accounts
listed on Schedule 1.1C, that the several banks at which such accounts are
maintained enter into Blocked Account Agreements) to transfer all funds
collected therein directly or indirectly through other bank accounts of
such Loan Party to the Concentration Account.
"BLOCKED ACCOUNT AGREEMENT": a blocked account agreement,
substantially in the form of Exhibit H or otherwise in form and substance
to the Collateral Agent.
"BOARD": the Board of Governors of the Federal Reserve System.
"BORROWER": as defined in the Preamble to this Agreement.
"BORROWER NOTICE": a written notice transmitted from time to time by
the Underwriters to the Borrower and the bank where the Concentration
Account is maintained, designating the Payment Account; PROVIDED, that no
such Borrower Notice shall be transmitted or enforced unless (i) Loans are
at such time outstanding, (ii) Letters of Credit have been issued but not
cash collateralized or (iii) a Default or Event of Default has occurred and
is continuing and PROVIDED, FURTHER, that, if no Default or Event of
Default has occurred and is continuing, no Loans are outstanding and all
issued and outstanding Letters of Credit have been cash collateralized, any
outstanding Borrower Notice shall be suspended by the Underwriters and any
amounts in the Payment Account shall be transferred to the Concentration
Account until such time as a new Borrower Notice is delivered in accordance
with the terms hereof.
"BORROWER NOTIFICATION DATE": the Business Day (which shall be no
earlier than the third Business Day after the date of transmittal of the
related Borrower Notice) specified in a Borrower Notice.
5
"BORROWER NOTIFICATION PERIOD": the period from and including a
Borrower Notification Date until the related Borrower Notice is suspended
by the Underwriters.
"BORROWING BASE": on any date of determination, the amount determined
by the Underwriters in their reasonable judgment by reference to the most
recent Borrowing Base Certificate delivered pursuant to this Agreement,
equal to the lesser of (i) the aggregate cash collections from Eligible
Account Debtors for the five weeks immediately preceding such date of
determination and (ii) 75% of the sales to Eligible Account Debtors in the
five weeks immediately preceding such date of determination, subject to
such other reserves as the Underwriters in their reasonable judgment may
establish from time to time.
"BORROWING BASE CERTIFICATE": a borrowing base certificate
substantially in the form of Exhibit B with such changes as the
Underwriters, in their sole discretion, may approve.
"BORROWING DATE": any Business Day specified in a notice pursuant to
Section 2.2 as a date on which the Borrower requests the Lenders to make
Loans hereunder.
"BUDGET": as defined in Section 6.2(g) and as amended, supplemented or
modified from time to time.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Houston, Texas are authorized or
required by law to close; PROVIDED that when such term is used with respect
to notices and determinations in connection with, and payments of principal
of, and interest on, LIBOR Loans, any day which is a Business Day in New
York City and which is also a day on which trading by and between banks in
Dollar deposits may be carried out in the London interbank eurodollar
market.
"BUSINESS PLAN": a business plan and related financial models,
prepared by the Debtors with reasonable consultation with the official
committee of unsecured creditors appointed in the Cases, to be satisfactory
in form and substance to the Underwriters in their reasonable discretion
including, without limitation, in respect of the areas identified by the
Underwriters' financial advisors from time to time, PROVIDED, that the
Business Plan need not include a valuation of the Debtors' businesses.
"CANADIAN SUBSIDIARIES": the collective reference to all direct or
indirect subsidiaries of Holdings domiciled in or incorporated under the
laws of Canada.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
6
"CARVE-OUT": as defined in Section 4.3 of the Guarantee and Collateral
Agreement.
"CASES": as defined in the Recitals to this Agreement.
"CASH COLLATERAL ACCOUNT": as defined in Section 4.2(b).
"CASH EQUIVALENTS": (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit
and eurodollar time deposits with maturities of one year or less from the
date of acquisition and overnight bank deposits of any Lender or of any
commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not
more than 30 days with respect to securities issued or fully guaranteed or
insured by the United States Government, (d) commercial paper of a domestic
issuer rated at least A-2 by Standard and Poor's Rating Group ("S&P") or
P-2 by Moody's Investors Service, Inc. ("MOODY'S"), (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's, (f) securities with maturities of one year or less
from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (b)
of this definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"CLOSING DATE": the date on which the conditions precedent to the
making of the initial Extension of Credit set forth in Section 6.1 shall be
satisfied.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Loan Parties, now owned or hereinafter
acquired, upon which a Lien is purported to be created by any Security
Document or Order.
"COLLATERAL AGENT": as defined in the Preamble to this Agreement.
"COMMITMENT FEE RATE":1/2of 1% per annum.
"COMMITMENT PERIOD": the period from and including the Closing Date to
the Termination Date.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA
7
or is part of a group which includes the Borrower and which is treated as a
single employer under Section 414 of the Code.
"CONCENTRATION ACCOUNT": the account, No. 1064716, established by the
Borrower under the sole and exclusive control of the General Administrative
Agent, or the Collateral Agent as its designee, maintained at the office of
Bank One, N.A. (formerly known as The First National Bank of Chicago)
designated as the "Safety-Kleen Services, Inc. Concentration Account" or
other similar title, which shall be used for the daily concentration of all
funds received by the Borrower or any Guarantor from the operation of their
businesses.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"DEFAULT": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DISBURSEMENT ACCOUNT": the account of the Borrower maintained at the
office of The Toronto-Dominion Bank at 909 Fannin Street, Suite 1700,
Houston, TX 77010 into which all Loan proceeds are to be deposited.
"DISPOSITION": with respect to any asset, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"ELGIN LOAN COLLATERAL": the real estate, fixtures and incidental
personal property securing the Elgin Loan Obligations.
"ELGIN LOAN OBLIGATIONS" shall mean the obligations of Safety-Kleen
Systems, Inc., as borrower, and the Borrower, as guarantor, under the
Demand Loan Agreement, dated as of March 14, 2000, to which they are
parties.
"ELIGIBLE ACCOUNT DEBTORS": at a particular date, the account debtors
in respect of all Accounts of any Loan Party arising in the ordinary course
of business, other than:
(a) an Affiliate or employee of any Loan Party;
(b) an account debtor which has commenced, or has had commenced
against it, a proceeding or case seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of such
obligor or of all or any substantial part of its property, or (iii)
similar relief in respect of such obligor under any law relating to
bankruptcy,
8
insolvency, reorganization, winding-up, or composition or adjustment
of debts; or an order for relief against such obligor shall be entered
in an involuntary case under the Bankruptcy Code or any other
applicable bankruptcy, insolvency or similar laws; and
(c) an account debtor located outside the United States of
America (including, without limitation, its commonwealth, territories
and possessions), unless it has provided standby letters of credit or
other instruments (in form and substance reasonably satisfactory to
the Underwriters) issued or confirmed by, and payable at, banks
satisfactory to the Underwriters having a place of business in the
United States of America and payable in Dollars, which letters of
credit are assigned or issued for the benefit of and delivered to the
Underwriters.
"ENVIRONMENTAL LAWS": any and all laws (including, without limitation,
all common and civil law), rules, orders, regulations, statutes,
ordinances, guidelines, codes, decrees, or other legally enforceable
requirement of any foreign government, the United States, or any state,
provincial, local, municipal or other governmental authority, regulating,
relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health, or employee health and
safety, as has been, is now, or may at any time hereafter be, in effect.
"ENVIRONMENTAL PERMITS": any and all permits, licenses, registrations,
approvals, notifications, exemptions and any other authorization required
under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a LIBOR
Loan, the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves
under any regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation
D of such Board) maintained by a member bank of such System.
"EURODOLLAR BUSINESS DAY": any day on which banks are open for
dealings in dollar deposits in the London interbank market.
"EVENT OF DEFAULT": any of the events specified in Section 9, PROVIDED
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
9
"EXCESS CASH": cash or Cash Equivalents of Holdings, the Borrower and
any of the Subsidiaries of the Borrower aggregating in excess of
$15,000,000 (excluding cash or Cash Equivalents securing Letters of
Credit).
"EXTENSION OF CREDIT": as to any Lender, the making of a Loan by such
Lender, or the issuance (or acquisition of a participating interest in) any
Letter of Credit. It is expressly understood and agreed that the
continuations of Loans as LIBOR Loans or Base Rate Loans or conversions of
one Type of Loan to another pursuant to Section 4.4 do not constitute new
Extensions of Credit for purposes of this Agreement.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the General
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"FINAL ORDER": an order of the Bankruptcy Court entered in the Cases
after a final hearing under Bankruptcy Rule 4001(c)(2) granting final
approval of this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby and granting the Liens and
Super-Priority Claims in favor of the General Administrative Agent and the
Lenders, substantially in the form of Exhibit F, and otherwise in form and
substance reasonably satisfactory to the General Administrative Agent.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FOREIGN SUBSIDIARY": any Subsidiary of the Borrower organized under
the laws of any jurisdiction outside the United States of America.
"GAAP": GENERALLY accepted accounting principles in the United States
of America in effect from time to time.
"GENERAL ADMINISTRATIVE AGENT": Toronto Dominion (Texas) Inc.,
together with its affiliates, as arranger of the Revolving Credit
Commitments and as administrative agent for the Lenders under this
Agreement and the other Loan Documents, and any successor thereto pursuant
to Section 10.9.
"GOVERNMENTAL AUTHORITY": any nation or government, any state,
provincial or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
10
"GUARANTEE AND COLLATERAL AGREEMENT": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Guarantor,
substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING PERSON"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which obligation the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "PRIMARY OBLIGATIONS") of any other third Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith. For avoidance of doubt, Guarantee Obligations will not include
obligations of Holdings and its Subsidiaries incurred in the ordinary
course of business to indemnify customers in connection with business
services provided by Holdings or its Subsidiaries.
"GUARANTOR": as defined in the Recitals to this Agreement.
"HOLDINGS": as defined in the Recitals to this Agreement.
"INDEBTEDNESS": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced by
a note, bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person,
contingent or
11
otherwise, as an account party under acceptance, letter of credit or
similar facilities (other than obligations in respect of performance bonds
and letters of credit in the nature of performance bonds), (e) all
obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any Capital Stock (other than common
stock) of such Person, (f) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (e)
above and (g) all obligations of the kind referred to in clauses (a)
through (f) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien
on property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTEREST DETERMINATION DATE": with respect to any Interest Period for
LIBOR Loans, the date which is two Eurodollar Business Days prior to the
first day of such LIBOR Interest Period.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan the last
Business Day of each calendar month and (b) as to any LIBOR Loan, the last
day of the Interest Period related thereto.
"INTEREST PERIOD": with respect to any LIBOR Loan:
(a) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Loan
and ending one month thereafter; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such LIBOR Loan and
ending one month thereafter;
PROVIDED that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day; and
12
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"INTEREST SETTLEMENT PERIOD": during the Borrower Notification Period,
(a) with respect to Base Rate Loans, each calendar month, and (b) with
respect to each set of LIBOR Rate Loans having the same Interest Period,
such Interest Period.
"INTERIM CREDIT AGREEMENT": as defined in the Recitals to this
Agreement.
"INTERIM ORDER": as defined in the Recitals to this Agreement.
"INTERIM PERIOD": the period from the date of entry of the Interim
Order until the date of entry of the Final Order.
"ISSUANCE DATE": any Business Day specified in a notice pursuant to
Section 3.2 as a date on which an Issuing Lender is requested to issue a
Letter of Credit hereunder.
"ISSUING LENDER": as defined in the Preamble.
"L/C FEE PAYMENT DATE": the last day of each calendar month.
"L/C Lenders": the collective reference to all the Lenders other than
the Issuing Lender.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 3.5.
"LEASEHOLDs": leaseholds of any Loan Party in real property that is
not used for the treatment, storage or disposal of Materials of
Environmental Concern.
"LENDERS": as defined in the Recitals to this Agreement.
"LETTERS OF CREDIT": as defined in Section 3.1(a).
"LIBOR LOAN": any Loan the rate of interest applicable to which is
based upon the LIBOR Rate.
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"LIBOR RATE": with respect to a LIBOR Loan for the relevant Interest
Period, the rate per annum determined by the General Administrative Agent
as follows:
(a) on the Interest Determination Date relating to such Interest
Period, the General Administrative Agent shall obtain the offered
quotation(s) for U.S. Dollar deposits for a period comparable to such
Interest Period that appear on the Reuters' Screen as of 11:00 a.m.,
London time. If at least two such offered quotations appear on the
Reuters' Screen, the LIBOR Rate shall be the arithmetic average
(rounded up to the nearest 1/16th of 1%) of such offered quotations,
as determined by the General Administrative Agent;
(b) if the Reuters' Screen is not available or has been
discontinued, the LIBOR Rate shall be the rate per annum by the LIBOR
Reference Bank as the rate at which deposits in U.S. Dollars are
offered to such Reference Banks in the London interbank market at
11:00 a.m., London time, on the Interest Determination Date in the
approximate amount of the LIBOR Reference Bank's relevant LIBOR Loan
and having a maturity approximately equal to the relevant LIBOR
Interest Period; and
(c) if the General Administrative Agent is not able to obtain
quotations for the determination of the LIBOR Rate pursuant to
subsection (a) or (b) above, the LIBOR Rate shall be the rate per
annum which the General Administrative Agent in good faith determines
to be the arithmetic average (rounded as aforesaid) of the offered
quotations for U.S. Dollar deposits in an amount comparable to the
General Administrative Agent's share of the relevant amount in respect
of which the LIBOR Rate is being determined for a period comparable to
the relevant LIBOR Interest Period that leading banks in New York City
selected by the General Administrative Agent are quoting at 11:00
a.m., New York City time, on the Interest Determination Date in the
New York interbank market to major international banks.
"LIBOR REFERENCE BANK": The Toronto-Dominion Bank.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any Financing Lease having substantially the same economic effect as
any of the foregoing).
"LOAN":any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": the collective reference to this Agreement, any
Notes, the Applications, the Blocked Account Agreements and the Security
Documents; individually a "LOAN DOCUMENT".
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"LOAN PARTIES": the collective reference to the Borrower and each
Guarantor; individually a "LOAN PARTY".
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects
of the Borrower and the Guarantors taken as a whole, (b) the ability of the
Borrower and the Guarantors, taken as a whole, to perform the obligations
under the Orders and the Loan Documents, (c) the ability of the Borrower
and the Guarantors taken as a whole to reorganize as a going concern under
Chapter 11 of the Bankruptcy Code, (d) the validity or enforceability of
the Orders or any of the Loan Documents, (e) the rights and remedies of the
Lenders and the General Administrative Agent under the Orders and the Loan
Documents or (f) timely payment of the principal of or interest on the
Loans, outstanding Letters of Credit or other amounts payable in connection
therewith; PROVIDED, that the shutdown of the business of Safety-Kleen
(Pinewood), Inc., taken alone and expressly excluding any legislative,
administrative or judicial action in respect thereof, shall not constitute
a Material Adverse Effect.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, biohazards, radioactivity, and any other
substances or forces of any kind, whether or not any such substance or
force is defined as hazardous or toxic under any Environmental Law, that is
regulated pursuant to or could give rise to liability under any
Environmental Law.
"MATURITY DATE": the date determined pursuant to clause (a) of the
definition of Termination Date.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": in connection with any Asset Sale or any Recovery
Event, the proceeds thereof in the form of cash and cash equivalents
(including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such
Asset Sale or Recovery Event, net of attorneys' fees, accountants' fees,
investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset
which is the subject of such Asset Sale or Recovery Event or pursuant to
the Orders (other than any Lien pursuant to a Security Document) and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements) but including in the case of any Asset Sale the
amount of intercompany Indebtedness, if any, repaid to any Loan Party as
part of such Asset Sale.
"NON-EXCLUDED TAXES": as defined in Section 4.12.
15
"NOTES": the promissory notes of the Borrower, substantially in the
form of Exhibit C, each payable to the order of a Lender, evidencing the
Revolving Credit Loans.
"OBLIGATIONS": as defined in the Guarantee and Collateral Agreement.
"ORDERS": the Interim Order and the Final Order.
"PARTICIPANT": as defined in Section 12.6(b).
"PAYMENT ACCOUNT": the bank account of the Collateral Agent designated
in the written notice from the Underwriters referred to in the definition
of Borrower Notice.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, business trust,
joint stock Borrower, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PETITION DATE": as defined in the Recitals to this Agreement.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PLAN OF REORGANIZATION": a Chapter 11 plan of reorganization in any
of the Cases.
"PREPETITION COLLATERAL": all property securing the Prepetition
Obligations.
"PREPETITION CREDIT AGREEMENT": the Amended and Restated Credit
Agreement, dated as of April 3, 1998, among the Borrower, Safety-Kleen
(Canada) Ltd., the Prepetition Lenders, Toronto Dominion (Texas), Inc., as
general administrative agent, The Toronto-Dominion Bank, as Canadian
administrative agent, TD Securities (USA) Inc., as arranger, The Bank of
Nova Scotia, Bank of America, Bank One, N.A., and Wachovia Bank, N.A., as
managing agents, the Bank of Nova Scotia and Bank One, N.A., as
co-documentation agent, and Bank of America, as syndication agent , as
amended, supplemented or otherwise modified from time to time.
"PREPETITION LENDERS": collectively, the financial institutions and
other entities from time to time parties to the Prepetition Credit
Agreement.
"PREPETITION OBLIGATIONS": the aggregate outstanding principal amount
of the loans and other financial accommodations made under or pursuant to
the Prepetition Credit Agreement, and all accrued but unpaid interest and
fees, costs and other charges payable
16
to the agents or the Prepetition Lenders under or pursuant to the
Prepetition Credit Agreement and all obligations owing by any Loan Party to
any Prepetition Lender under any Hedging Agreement entered into before the
Petition Date and all interest, fees, costs, other charges or other
obligations that may accrue after the Petition Date (whether or not allowed
as a claim in the Cases).
"PRIME RATE": the prime commercial lending rate of The
Toronto-Dominion Bank as in effect from time to time in New York City for
loans in U.S. Dollars, such rate to be adjusted on and as of the effective
date of any change in the Prime Rate. The Prime Rate is only one of the
bases for computing interest on loans made by the Lenders, and by basing
interest on the unpaid principal amount of the Loans on the Prime Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
"PRINCIPAL SETTLEMENT PERIOD": initially, the period from and
including a Borrower Notification Date to and including the last day of the
calendar week in which such Borrower Notification Date falls, and
thereafter, each succeeding calendar week.
"RECOVERY EVENT": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any of its Subsidiaries in excess
of $5,000,000 in the aggregate.
"REGISTER": as defined in Section 11.6(d).
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty-day notice period is
waived under subsection .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg.ss. 4043.
"REQUIRED LENDERS": the holders of more than 66-2/3% of the total
Revolving Credit Commitments or, if the Revolving Credit Commitments have
been terminated, the aggregate principal (or face) amount of all Extensions
of Credit then outstanding.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other
17
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"RESPONSIBLE OFFICER": the chief executive officer and the president
of the Borrower or Holdings, as the case may be, or, with respect to
financial matters, the chief financial officer of the Borrower or Holdings,
as the case may be.
"REUTERS' SCREEN": the display designated at page "LIBO" on the
Reuters Monitor System or such other display on the Reuters Monitor System
as may replace such page displaying the London interbank bid or offered
rates.
"REVOLVING CREDIT COMMITMENT": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and provide Letters of
Credit to the Borrower hereunder in an aggregate principal amount not to
exceed the amount set forth under the heading "Revolving Credit Commitment"
opposite such Lender's name on Schedule 1.1A (which may be amended from
time to time to reflect Lenders who have made additional Commitments) or,
as the case may be, in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the
Revolving Credit Commitments is $100,000,000.
"REVOLVING CREDIT LOAN": as defined in Section 2.1.
"REVOLVING CREDIT PERCENTAGE": as to any Lender at any time, the
percentage which such Lender's Revolving Credit Commitment then constitutes
of the aggregate Revolving Credit Commitments (or, if the Revolving Credit
Commitments have been terminated, the percentage which the aggregate
principal amount of such Lender's Extensions of Credit then outstanding
constitutes of the aggregate principal (or face) amount of all Extensions
of Credit then outstanding).
"SECURITY DOCUMENTS": the collective reference to the Guarantee and
Collateral Agreement, and all other security documents hereafter delivered
to the General Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under
any Loan Document.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STEERING COMMITTEE": the informal committee of certain Prepetition
Lenders from time to time.
"SUBSIDIARY": as defined in the Recitals to this Agreement.
18
"SUPER-PRIORITY CLAIM": a claim against the Borrower or any Guarantor
which is an administrative expense claim having priority over any or all
administrative expenses of the kind specified in Sections 503(b) or 507(b)
of the Bankruptcy Code.
"TERMINATION DATE": the earlier to occur of (a) the 364th day after
the Petition Date; provided, that, on the date that is the six-month
anniversary of the Petition Date, if no Default or Event of Default has
occurred which is then continuing, such termination shall be extended to
the 364th day after such six-month anniversary; (b) the effective date of a
Plan of Reorganization or (c) the earlier termination of the Revolving
Credit Commitments in accordance with the terms hereof.
"TRANCHE": the collective reference to LIBOR Loans, the then current
Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have
been made on the same day).
"TRANSFEREE": as defined in Section 11.6(f).
"TYPE": as to any Loan, its nature as a Base Rate Loan or a LIBOR
Loan.
"UNDERWRITERS": as defined in the Preamble to this Agreement.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.S. DOLLARS" and "$": dollars in the lawful currency of the United
States of America.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Loan Parties not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP; PROVIDED that, if the Borrower notifies the General
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
General Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then, pending execution and delivery of such an amendment,
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
19
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS
2.1 REVOLVING CREDIT COMMITMENTS. Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "REVOLVING CREDIT LOAN") denominated in U.S. Dollars to the Borrower
during the Commitment Period in an aggregate principal amount at any one time
outstanding which after giving effect to such borrowing and the use of proceeds
thereof does not exceed the lesser of (i) the amount of such Lender's Available
Revolving Credit Commitment and (ii) such Lender's Revolving Credit Percentage
of the Borrowing Base then in effect. During the Commitment Period, the Borrower
may use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Credit Loans may from time to time be
LIBOR Loans or Base Rate Loans, as determined by the Borrower and notified to
the General Administrative Agent and, during the Borrower Notification Period,
the Collateral Agent in accordance with Sections 2.2 and 4.4.
2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day in accordance with this Section 2.2, PROVIDED, that the
Borrower shall give the General Administrative Agent and, during the Borrower
Notification Period, the Collateral Agent irrevocable written notice (which
notice must be received by the General Administrative Agent prior to 12:00 Noon,
New York City time, (i) three Business Days prior to the requested Borrowing
Date, in the case of LIBOR Loans, or (ii) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans prior to the Borrower
Notification Date and, during the Borrower Notification Period, prior to 1:00
p.m., New York City time, on the requested Borrowing Date), specifying (A) the
amounts and Types of Revolving Credit Loans to be borrowed and (B) the requested
Borrowing Date. Each borrowing under the Revolving Credit Commitments shall be
in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a
multiple of $500,000 in excess thereof and (y) in the case of LIBOR Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the General Administrative Agent shall
promptly notify each Lender thereof unless the procedures for daily revolving
borrowing and settlement among the Lenders contemplated by subsections 2.5,
4.3(h) and (i) and 4.9(e) and (f) are in effect in which event such procedures
shall govern. Each Lender will make the amount of its Revolving Credit
Percentage of each borrowing available to the General Administrative Agent for
the account of the Borrower at the office of the General Administrative Agent
specified in Section 11.2 prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
20
General Administrative Agent unless the procedures for daily revolving borrowing
and settlement among the Lenders contemplated by subsections 2.5, 4.3(h) and (i)
and 4.9(e) and (f) are in effect in which event such procedures shall govern.
Such borrowing will then be made available to the Borrower by crediting the
Disbursement Account with the aggregate amounts made available by the Lenders
and in like funds as received unless the procedures for daily revolving
borrowing and settlement among the Lenders contemplated by subsections 2.5,
4.3(h) and (i) and 4.9(e) and (f) are in effect in which event such procedures
shall govern.
2.3 REPAYMENT OF REVOLVING CREDIT LOANS; EVIDENCE OF DEBT. (a)
The Borrower hereby unconditionally promises to pay to the General
Administrative Agent for the account of the appropriate Lender the then unpaid
principal amount of each Revolving Credit Loan of such Lender on the Termination
Date. The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Revolving Credit Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 4.6.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Revolving Credit Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The General Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to Section 11.6(e), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each
Revolving Credit Loan made hereunder and any Note evidencing such Revolving
Credit Loan, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the General Administrative Agent hereunder
from the Borrower and each Lender's share thereof; PROVIDED, that, if the
procedures for daily revolving borrowing and repayment and for settlement among
the Lenders contemplated by subsections 2.5, 4.3(h) and (i) and 4.9(e) and (f)
are in effect, such procedures shall govern.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.3(b) shall be PRIMA FACIE evidence of
the existence and amounts of the obligations of the Borrower; PROVIDED, HOWEVER,
that the failure of any Lender, the General Administrative Agent or the
Collateral Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of the Borrower or any
other Loan Party to repay (with applicable interest) the Revolving Credit Loans
in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the General
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a Note with appropriate insertions as to date and principal amount.
2.4 TERMINATION OR REDUCTION OF REVOLVING CREDIT COMMITMENTS. The
Borrower shall have the right, upon not less than three Business Days'
irrevocable written notice to the
21
General Administrative Agent, to terminate the Revolving Credit Commitments or,
from time to time, to reduce the amount of the Revolving Credit Commitments
without premium or penalty; PROVIDED that no such termination or reduction of
Revolving Credit Commitments shall be permitted if, after giving effect thereto
and to any prepayments of the Revolving Credit Loans made on the effective date
thereof, the outstanding Extensions of Credit would exceed the Revolving Credit
Commitments then in effect. Any such reduction shall be in an amount equal to
$5,000,000, or a whole multiple of $250,000 in excess thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
2.5 FUNDING MECHANISMS DURING BORROWER NOTIFICATION PERIOD.
Notwithstanding any other provision of this Agreement, and in order to reduce
the number of fund transfers among the Borrower, the Lenders and the Collateral
Agent, during the Borrower Notification Period, the Collateral Agent may (but
shall not be obligated to), without any requirement of notice, fund, on behalf
of all Lenders, Loans pursuant to Section 2.1, subject to the procedures for
settlement set forth in subsection 4.9(e) and (f); PROVIDED, HOWEVER, that (a)
the Collateral Agent shall in no event fund any such Loan if it shall have
received written notice from the Required Lenders at least one Business Day
before the proposed Borrowing Date that one or more of the conditions precedent
specified in Section 6.2 will not be satisfied as of the Borrowing Date and (b)
the Collateral Agent shall otherwise not be required to determine that, or take
notice whether, any such conditions precedent have been satisfied.
SECTION 3. LETTERS OF CREDIT
3.1 L/C COMMITMENT. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the L/C Lenders set
forth in Section 3.4(a), agrees to issue letters of credit (the "LETTERS OF
CREDIT") for the account of the Borrower on any Business Day during the
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; PROVIDED that the Issuing Lender shall have no obligation to
provide any Letter of Credit if, after giving effect thereto, (i) the aggregate
amount of the L/C Obligations then outstanding would exceed $35,000,000; (ii)
the aggregate Extensions of Credit of all of the Lenders would exceed the lesser
of (x) the aggregate Revolving Credit Commitments then in effect or (y) the
Borrowing Base then in effect and PROVIDED, FURTHER, that (i) up to $15,000,000
of Letters of Credit shall be available solely to backstop automobile,
liability, workers' compensation and similar insurance programs; (ii) up to
$15,000,000 of Letters of Credit shall be available solely for performance bonds
on new bids by Borrower or its Subsidiaries in the United States. Each Letter of
Credit shall (i) be denominated in U.S. Dollars and (ii) expire no later than
the date which is 60 days after the Maturity Date.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
3.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the
22
Issuing Lender, the certificate of a Responsible Officer of the Borrower and
such other certificates, documents and other papers and information as the
Issuing Lender may request, with a copy to the General Administrative Agent.
Upon receipt of any Application, the Issuing Lender agrees to process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall such Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and
the Borrower, PROVIDED, that no Letter of Credit to provide financial assurance
of reclamation, clean up or other similar changes shall be issued unless and
until the General Administrative Agent shall have reasonably determined, that
such additional financial assurance is required in the amount and at the time
requested and that the Loan Party that owns the site or operation in respect of
which such assurance is requested is likely to fully perform the obligations
supported by such Letter of Credit. The Issuing Lender shall furnish a copy of
each Letter of Credit by it hereunder to the Borrower promptly following the
issuance thereof. The Issuing Lender shall promptly furnish to the General
Administrative Agent, which shall in turn promptly furnish to the L/C Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).
3.3 COMMISSIONS, FEES AND OTHER CHARGES. (a) The Borrower shall
pay to the General Administrative Agent, for the account of the L/C Lenders, a
letter of credit commission with respect to each Letter of Credit outstanding
under this Agreement for the period from the Issuance Date of such Letter of
Credit to the expiration or termination of such Letter of Credit, computed at a
per annum rate equal to the Applicable Margin then in effect with respect to
LIBOR Loans on the average aggregate amount available to be drawn under such
Letter of Credit during the period for which such fee is calculated. Such
commission shall be shared ratably among the L/C Lenders and payable in arrears
on each L/C Fee Payment Date to occur after the respective Issuance Date and on
the Termination Date and shall be nonrefundable.
(b) The Borrower shall pay to the Issuing Lender with respect to
each Letter of Credit issued by the Issuing Lender under this Agreement, for its
own account, a fronting fee with respect to the period from the Issuance Date of
such Letter of Credit to the expiration or termination date of such Letter of
Credit, computed at a rate of 1/4 of 1% per annum on the average aggregate
amount available to be drawn under such Letter of Credit during the period for
which such fee is calculated. Such fronting fee shall be payable in arrears on
each L/C Fee Payment Date to occur after the Issuance Date and on the
Termination Date and shall be nonrefundable.
(c) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
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3.4 L/C PARTICIPATIONS. (a) Effective on the Issuance Date in
respect of each Letter of Credit, the Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Lender (other than such Issuing Lender), and, to
induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Lender
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Lender's own account an undivided interest equal to such L/C Lender's Revolving
Credit Percentage of the Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Lender unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Lender shall pay to the
Issuing Lender upon demand at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Lender's Revolving Credit Percentage of the
amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Lender to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit issued by
the Issuing Lender is not paid when due but is paid within three Business Days
after the date such payment is due, the L/C Lender shall pay to the Issuing
Lender on demand an amount equal to the product of (i) such amount, times (ii)
the daily average Federal Funds Effective Rate during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Lender pursuant to Section 3.4(a) is not made available to the Issuing Lender by
such L/C Lender within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C Lender, on demand,
such amount with interest thereon calculated from such due date at the rate per
annum applicable to Base Rate Loans. A certificate of the Issuing Lender
submitted to any L/C Lender with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit issued by the Issuing Lender and has received
from any L/C Lender its Revolving Credit Percentage of such payment in
accordance with Section 3.4(a), the Issuing Lender receives any payment related
to such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of collateral applied thereto by the Issuing Lender, but
excluding payments from L/C Lenders), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Lender its Revolving
Credit Percentage thereof; PROVIDED, HOWEVER, that in the event that any such
payment received by the Issuing Lender shall be required to be returned by the
Issuing Lender, such L/C Lender shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER. If any draft shall
be presented for payment under any Letter of Credit issued by the Issuing
Lender, the Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. If the Issuing Lender notifies the
24
Borrower prior to 10:00 a.m., New York City time, on any Business Day, of any
drawing under any Letter of Credit issued by it, the Borrower shall reimburse
the Issuing Lender with respect to such drawing on the next succeeding Business
Day. If the Issuing Lender notifies the Borrower after 10:00 a.m., New York City
time, on any Business Day of any drawing under any Letter of Credit issued by
it, the Borrower shall reimburse the Issuing Lender with respect to such drawing
on the second succeeding Business Day. Interest shall be payable on any and all
amounts drawn under Letters of Credit from the date of such drawing until the
date on which reimbursement of such amount is due pursuant to the two
immediately preceding sentences at the interest rate then applicable to Base
Rate Loans. In addition, the Borrower agrees to reimburse the Issuing Lender for
any taxes, fees, charges or other costs or expenses incurred by the Issuing
Lender in connection with any payment under any Letter of Credit issued by the
Issuing Lender. Each payment by the Borrower pursuant to this Section 3.5 shall
be made to the Issuing Lender at its address for notices specified herein in
U.S. Dollars and in immediately available funds.
3.6 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit issued by the Issuing Lender, the Issuing
Lender shall promptly notify the Borrower of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 APPLICATIONS. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3 or any other provision of
25
this Agreement, the provisions of this Section 3 or such other provisions of
this Agreement shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
4.1 COMMITMENT FEE. The Borrower agrees to pay to the General
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the Closing Date to the Termination Date, computed at
the Commitment Fee Rate on the average daily amount of the Available Revolving
Credit Commitment of such Lender during the period for which payment is made,
payable monthly in arrears on the last day of each calendar month and on the
Termination Date, commencing on the first of such dates to occur after the date
hereof.
4.2 OPTIONAL PREPAYMENTS. (a) Subject to the provisions of
Section 4.3, the Borrower may at any time and from time to time prepay the
Revolving Credit Loans, in whole or in part, without premium or penalty, upon
(i) at least one Business Day's prior notice for Base Rate Loans and (ii) three
Business Days' notice for LIBOR Loans, PROVIDED, that if a LIBOR Loan is prepaid
on any day other than the last day of the Interest Period applicable thereto,
the Borrower shall also pay any amounts owing pursuant to Section 4.13 and
PROVIDED, FURTHER, that if after giving effect to any prepayment of LIBOR Loans
there remain LIBOR Loans outstanding, such outstanding LIBOR Loans shall be in
an amount in excess of $5,000,000. Upon receipt of any such notice, the General
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to Section 4.13 and accrued interest to such date on the amount
prepaid. Partial prepayments of Revolving Credit Loans shall be in an aggregate
principal amount of not less than $5,000,000 and whole multiples of $250,000 in
excess thereof.
(b) The amount of each optional prepayment shall be applied
FIRST, to the prepayment of the Revolving Credit Loans, SECOND, payment of any
unpaid drawings under Letters of Credit, and THIRD, to the cash
collateralization of outstanding undrawn Letters of Credit by depositing into a
cash collateral account (the "CASH COLLATERAL ACCOUNT") maintained at a bank or
financial institution acceptable to the General Administrative Agent an amount
equal to 105% of the amount by which the aggregate undrawn Letters of Credit
exceeds the amount of cash held in the Cash Collateral Account.
4.3 MANDATORY PREPAYMENTS AND COMMITMENT REDUCTIONS. (a) If, at
any time during the Commitment Period, the sum of the aggregate outstanding
Loans and L/C Obligations exceeds the lesser of (i) the Borrowing Base or (ii)
the aggregate Revolving Credit Commitments then in effect, the Borrower shall,
without notice or demand, immediately pay to the General Administrative Agent an
amount equal to such excess to be applied FIRST, to the prepayment of the
Revolving Credit Loans, SECOND, to the payment of any unpaid drawings under
Letters of Credit, and THIRD, to the cash collateralization of outstanding
undrawn Letters of Credit by depositing into the Cash Collateral Account an
amount equal to 105% of the amount by which the aggregate
26
undrawn Letters of Credit then outstanding exceeds the amount of cash held in
the Cash Collateral Account.
(b) Within one Business Day after the receipt by the Borrower or
any of the Guarantors of any Net Cash Proceeds from any Asset Sale or Recovery
Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on
such date FIRST, to the prepayment of the Revolving Credit Loans, SECOND, to the
payment of any unpaid drawings under Letters of Credit and THIRD, if the
Underwriters shall request, to the cash collateralization of outstanding undrawn
Letters of Credit by depositing into the Cash Collateral Account an amount equal
to 105% of the amount by which the aggregate undrawn Letters of Credit then
outstanding exceeds the amount of cash held in the Cash Collateral Account and
FOURTH, as adequate protection payments in respect of the Prepetition
Obligations. Unless otherwise agreed by the Required Lenders, the Revolving
Credit Commitment of each Lender shall be permanently and ratably reduced by the
aggregate amount applied pursuant to clauses FIRST and SECOND above.
(c) If, on any date, Holdings and its Subsidiaries shall have
Excess Cash for more than three consecutive Business Days, the Borrower shall,
on the next Business Day, apply such excess FIRST to the prepayment of the
Revolving Credit Loans until the aggregate outstanding principal amount thereof
has been reduced to $10,000,000 and SECOND, to the payment of unpaid drawings
under Letters of Credit; PROVIDED, that such prepayments shall not reduce the
Revolving Credit Commitments; PROVIDED, FURTHER, that if such prepayment would
result in breakage costs under Section 4.13(c), the Borrower may at its option
deposit the amount of prepayment that would result in such costs in a cash
collateral account with the General Administrative Agent to be applied to the
Loans in question at the end of the applicable Interest Period.
(d) Borrower shall use its reasonable best efforts to cause its
Subsidiary SK Europe Inc. to consummate the pending sale of the remaining equity
interest in Safety-Kleen (Europe) Limited, and upon receipt of the net cash
proceeds of sale ("EUROPEAN PROCEEDS"), regardless of when consummated, such
proceeds shall be added to the amounts already received from the sale of
Safety-Kleen (Rosemount), Inc. ("ROSEMOUNT PROCEEDS") which are currently in the
cash collateral account established therefor prior to the Petition Date for the
benefit of the Prepetition Agent and the Prepetition Lenders (the "PREPETITION
CASH COLLATERAL ACCOUNT"), which combined amounts (the "COMBINED PROCEEDS")
shall promptly be released as follows:
(i) European Proceeds in an amount equal to 50% of the
Combined Proceeds shall be distributed to the Prepetition
Lenders, PRO RATA, as adequate protection payments on account of
the Prepetition Obligations;
(ii) an amount equal to the lesser of (x) $10,000,000 and
(y) the remaining 50% of the Combined Proceeds shall be disbursed
to the Borrower for use in purchasing or securing performance
under automobile, liability, workers' compensation and similar
insurance coverage previously provided by Laidlaw, Inc. and its
affiliates (the "REPLACEMENT INSURANCE") upon satisfaction of the
Prepetition Agent as to the need for such funds; PROVIDED, that
if the amount available for
27
disbursement under this clause (ii) shall exceed the amount
needed for Replacement Insurance, such excess shall be
distributed under clause (iv) below; PROVIDED, FURTHER; that
amounts distributed under this clause (ii) shall be drawn first
from the Rosemount Proceeds and last from the European Proceeds;
(iii) until the disbursements contemplated by clauses (i)
and (ii) above have been made, the Prepetition Agent may from
time to time debit the Prepetition Cash Collateral Account in
which Combined Proceeds may be deposited, to the extent of
available funds, to pay or reimburse its out-of-pocket expenses,
including, without limitation, fees and expenses of counsel,
forensic advisors and financial advisors, to the Prepetition
Agent and the Steering Committee;
(iv) the balance of any Combined Proceeds (after the
disbursements provided for in clauses (i) and (ii) above or
reserves therefor, and after any disbursements which may have
taken place pursuant to clause (iii) above) shall be disbursed to
the Borrower.
(e) Borrower shall cause Safety-Kleen Systems, Inc. to use its
reasonable best efforts to sell the Elgin Loan Collateral for fair market value
and, upon receipt of the net cash proceeds of the sale of the Elgin Loan
Collateral, (i) an amount of such net cash proceeds equal to the sum of (A) the
amount of Elgin Loan Obligations repaid after the Petition Date plus (B) any
interest accrued or paid on Loans hereunder, if any, that were used to repay the
Elgin Loan Obligations shall be applied, FIRST, to the prepayment of the Loans
and, SECOND, to the payment of any unpaid drawings under Letters of Credit;
PROVIDED, that if the Elgin Loan Obligations have been repaid prior to the sale
of the Elgin Loan Collateral, and if no Loans or unpaid drawings under Letters
of Credit are outstanding at the time of receipt of such sale proceeds, the
amount determined pursuant to this clause (i) may be retained by Safety-Kleen
Systems, Inc., subject to the other provisions of the Loan Documents applicable
to the retention of cash, and (ii) all other net cash proceeds from the sale of
the Elgin Loan Collateral shall be paid to the Prepetition Lenders as adequate
protection payments in respect of the Prepetition Obligations;
(f) Upon the Termination Date, the Revolving Credit Commitments
and the L/C Commitments shall be terminated in full and the Borrower shall pay
the Revolving Credit Loans in full (including all accrued and unpaid interest
thereon), Reimbursement Obligations, fees and other obligations in respect
thereof and, if there are any issued but undrawn Letters of Credit, the Borrower
shall replace such Letters of Credit, provide a "back-to-back" letter of credit
or deposit into the Cash Collateral Account an amount equal to 105% of the
amount by which the aggregate Letters of Credit then outstanding exceeds the
amount of cash held in the Cash Collateral Account.
(g) The General Administrative Agent and, during the Borrower
Notification Period, the Collateral Agent shall be, and hereby is, irrevocably
authorized, to debit the Concentration Account in the amount of any prepayment
that becomes due.
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(h) At any time, the Underwriters jointly may deliver to the
Borrower a written notice specifying a Borrower Notification Date.
(i) Borrower shall, and shall cause each other Loan Party to (A)
maintain, at its expense, its existing bank accounts as Blocked Accounts, (B)
deposit, and cause its account debtors to remit, all payments on Accounts and
all other Proceeds of Collateral into such Blocked Accounts in the identical
form in which such payments are received, whether by cash, check or other manner
and (C) during the Borrower Notification Period, transfer, or cause to be
transferred, at its own expense, on a daily basis, by wire transfer or other
immediately effective means, all available funds in the Concentration Account to
the Payment Account. During the Borrower Notification Period, the Collateral
Agent may apply on a daily basis all amounts in the Payment Account or otherwise
received from the Borrower to the Obligations in such order as the Collateral
Agent may determine, and may charge all principal, interest, fees, costs,
expenses and other charges provided for in this Agreement or the other Loan
Documents directly to the Payment Account or Disbursement Account in such order
and manner as it may determine.
4.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may
elect from time to time to convert LIBOR Loans to Base Rate Loans, by giving the
General Administrative Agent and, during the Borrower Notification Period, the
Collateral Agent at least two Business Days' prior irrevocable notice of such
election; PROVIDED that any such conversion of LIBOR Loans may only be made on
the last day of an Interest Period with respect thereto. The Borrower may elect
from time to time to convert Base Rate Loans to LIBOR Loans by giving the
General Administrative Agent and, during the Borrower Notification Period, the
Collateral Agent at least three Business Days' prior irrevocable notice of such
election. Any such notice of conversion to LIBOR Loans shall specify the length
of the initial Interest Period or Interest Periods therefor. Upon receipt of any
such notice the General Administrative Agent shall promptly notify each affected
Lender thereof unless the provisions of subsections 2.5, 4.3(h) and (i) and
4.9(e) and (f) are in effect, in which case such provisions shall govern. All or
any part of outstanding LIBOR Loans and Base Rate Loans may be converted as
provided herein, PROVIDED that (i) no Base Rate Loan may be converted into a
LIBOR Loan when any Event of Default has occurred and is continuing and the
General Administrative Agent and, during the Borrower Notification Period, the
Collateral Agent has determined in its sole discretion that such a conversion is
not appropriate and (ii) no Loan may be converted into a LIBOR Loan after the
date that is one month prior to the Termination Date.
(b) Any LIBOR Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the General Administrative Agent and, during the Borrower Notification
Period, the Collateral Agent, in accordance with the applicable provisions of
the term "Interest Period" set forth in Section 1.1, of the length of the next
Interest Period to be applicable to such Loans, PROVIDED that no LIBOR Loan may
be continued as such (i) when any Event of Default has occurred and is
continuing and the General Administrative Agent and, during the Borrower
Notification Period, the Collateral Agent has determined in its sole discretion
that such a continuation is not appropriate or (ii) after the date that is one
month prior to the Termination Date and PROVIDED, FURTHER, that if the Borrower
shall fail to give such notice or if such continuation is not permitted such
Loans shall be
29
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the General Administrative
Agent shall promptly notify each Lender thereof unless the provisions of
subsections 2.5, 4.3(h) and (i) and 4.9(e) and (f) are in effect, in which case
such provisions shall govern.
4.5 MINIMUM AMOUNTS OF TRANCHES. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
LIBOR Loans hereunder and all selections of Interest Periods hereunder shall be
in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the LIBOR Loans comprising
each Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
4.6 INTEREST RATES AND PAYMENT DATES. (a) Each LIBOR Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the LIBOR Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee, (iv) any Reimbursement
Obligation or (v) any Letter of Credit fee or commission or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans, the Reimbursement
Obligations and any such overdue interest, fee or other amount shall bear
interest at a rate per annum which is the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection PLUS
3%.
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to paragraph (c) of this Section
4.6 shall be payable from time to time on demand.
4.7 COMPUTATION OF INTEREST AND FEES. (a) Whenever it is
calculated on the basis of the Base Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and whenever it is calculated on the basis of the LIBOR Rate, interest
shall be calculated on the basis of a 360-day year for the actual days elapsed.
The General Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a LIBOR Rate. Any change in
the interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The General
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in the Base
Rate.
(b) Each determination of an interest rate by the General
Administrative Agent or Collateral Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
30
(c) For purposes of calculating interest on the Loans, funds
received in the Payment Account shall be applied (conditional upon final
collection) when the Collateral Agent is advised by the bank where the Payment
Account is maintained of its receipt of "collected funds" if such advice is
received before 1:00 p.m., New York City time, on the date of receipt and
otherwise on the next Business Day. For purposes of calculating the aggregate
Available Revolving Credit Commitments, funds received in the Payment Account
will be applied (conditional upon final collection) to the Loans on the Business
Day of receipt when the Collateral Agent is advised by the bank where the
Payment Account is maintained of its receipt of "collected funds" if such advice
is received before 1:00 p.m., New York City time, on such date and otherwise on
the next Business Day.
4.8 INABILITY TO DETERMINE INTEREST RATE. If prior to the first
day of any Interest Period:
(a) the General Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
(b) the General Administrative Agent shall have received notice
from the Required Lenders that the LIBOR Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any LIBOR Loans requested to be made on
the first day of such Interest Period shall be made as Base Rate Loans, (y) any
Loans that were to have been converted on the first day of such Interest Period
to LIBOR Loans shall be continued as Base Rate Loans and (z) any outstanding
LIBOR Loans shall be converted, on the first day of such Interest Period, to
Base Rate Loans. Until such notice has been withdrawn by the General
Administrative Agent, no further LIBOR Loans shall be made or continued as such,
nor shall the Borrower have the right to convert Loans to LIBOR Loans.
4.9 PRO RATA TREATMENT AND PAYMENTS. (a) Except as provided in
subsection 2.5, each borrowing by the Borrower from the Lenders hereunder shall
be made PRO RATA according to their respective Revolving Credit Percentages.
Each payment by the Borrower on account of any commitment fee, facility fee and
letter of credit commission and any reduction of the Revolving Credit
Commitments shall be made PRO RATA according to their respective Revolving
Credit Percentages.
(b) Except as provided in subsection 4.3(i), each payment
(including each prepayment) on account of principal of and interest on the
Revolving Credit Loans shall be made PRO RATA according to the respective
outstanding principal amounts of the Revolving Credit Loans then held by the
Lenders.
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(c) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or otherwise
shall be made without setoff or counterclaim and shall be made prior to 12:00
Noon, New York City time, on the due date thereof to the General Administrative
Agent, for the account of the Lenders, at the General Administrative Agent's
office specified in Section 11.2 (unless the provisions of subsections 4.3(h)
and (i) are in effect, in which case such provisions shall govern) in Dollars
and in immediately available funds. The General Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received (unless the provisions of subsections 2.5, 4.3(h) and (i) and 4.9(e)
and (f) are in effect, in which case such provisions shall govern). If any
payment by the Borrower hereunder (other than payments on the LIBOR Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day. If any payment on a LIBOR Loan
becomes due and payable on a day other than a Business Day, the maturity thereof
shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(d) Unless the General Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make available to the General Administrative Agent the amount that
would constitute its share of the Loans to be disbursed to the Borrower on the
such Borrowing Date, the General Administrative Agent may assume that such
Lender is making such amount available to the General Administrative Agent, and
the General Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the General Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the General Administrative
Agent, on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the General Administrative Agent. A certificate
of the General Administrative Agent, submitted to any Lender with respect to any
amounts owing under this Section 4.9(d) shall be conclusive in the absence of
manifest error. If such Lender's share of such amount is not made available to
the General Administrative Agent by such Lender within three Business Days of
such Borrowing Date, the General Administrative Agent shall also be entitled to
recover such amount from the Borrower on demand with interest thereon at the
rate per annum applicable to Base Rate Loans. At any time that the provisions in
subsections 2.5(e) and 4.9(e) and (f) are in effect, references in this
paragraph to the General Administrative Agent shall be deemed references to the
Collateral Agent.
(e) With respect to each Interest Settlement Period, on the last
Business Day of such Interest Settlement Period, the Collateral Agent shall
notify each Lender of the average daily unpaid principal amount of Loans that
are the subject of such Interest Settlement Period. In the event that such
amount is greater than the average daily unpaid principal amount of such Loans
outstanding during the immediately preceding Interest Settlement Period for such
Loans (or if such Interest Settlement Period is the initial Interest Settlement
Period for such Loans, greater than the principal amount of such Loans on the
Business Day prior to the Borrower Notification Date), each Lender shall
promptly pay to the Collateral Agent its Revolving Credit Percentage of such
difference, together with interest on the amount of such difference at the
Federal Funds Effective Rate for such Interest Settlement Period. In the event
that such amount is less than the average daily unpaid principal amount of such
Loans during the immediately preceding Interest Settlement Period (or if such
Interest Settlement Period is the initial Interest Settlement Period for such
Loans, less than the principal amount of Loans on the Business Day prior to the
Borrower Notification
32
Date), the Collateral Agent shall promptly pay to each Lender its Revolving
Credit Percentage of such difference, together with interest on the amount of
such difference at the Federal Funds Effective Rate for such Interest Settlement
Period. The obligations of each Lender under this subsection 4.9(e) shall be
absolute and unconditional without defense, setoff or counterclaim. Each Lender
shall only be entitled to receive interest on its Revolving Credit Percentage of
the Loans that have been funded by such Lender.
(f) With respect to each Principal Settlement Period, on the last
day of such Principal Settlement Period, the Collateral Agent shall notify each
Lender of the principal amount of Loans outstanding at the end of such Principal
Settlement Period. In the event that such amount is greater than the principal
amount of Loans outstanding at the end of the immediately preceding Principal
Settlement Period (or if such Principal Settlement Period is the initial
Principal Settlement Period, greater than the principal amount of Loans on the
Business Day prior to the Borrower Notification Date), each Lender shall
promptly pay to the Collateral Agent its Revolving Credit Percentage of such
difference. In the event that such amount is less than the principal amount of
Loans outstanding at the end of the immediately preceding Principal Settlement
Period (or if such Principal Settlement Period is the initial Principal
Settlement Period, less than the principal amount of Loans on the Business Day
prior to the Borrower Notification Date), the Collateral Agent shall promptly
pay to each Lender its Revolving Credit Percentage of such difference. In
addition, if the General Administrative Agent shall request at any time when a
Default or Event of Default has occurred and is continuing, or any other event
shall have occurred as a result of which the General Administrative Agent shall
have determined that it is desirable for the Lenders to present their claims
against the Borrower for repayment, each Lender shall promptly remit to the
Collateral Agent or, as the case may be, the Collateral Agent shall promptly
remit to each Lender sufficient funds to adjust the interests of each Lender in
the then outstanding Loans such that each Lender's interest in the Loans then
outstanding is equal to its Revolving Credit Percentage thereof. The obligations
of each Lender under this subsection 4.9 shall be absolute and unconditional
without defense, setoff or counterclaim.
4.10 ILLEGALITY. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Loans as contemplated by this Agreement, (i) the commitment of such Lender
hereunder to make LIBOR Loans, continue LIBOR Loans as such and convert Base
Rate Loans to LIBOR Loans shall forthwith be canceled and (ii) such Lender's
Loans then outstanding as LIBOR Loans, if any, shall be converted automatically
to Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a LIBOR Loan occurs on a day which is not the
last day of the then current Interest Period with respect
33
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 4.13.
4.11 REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application THEREOF or
compliance by any Lender with any request or directive (whether or not having
the force of law, but with which similarly-situated entities generally comply)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit or any LIBOR Loan
made by it, or change the basis of taxation of payments to such Lender
in respect thereof (except for Non-Excluded Taxes covered by Section
4.12 and changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise included in
the determination of the LIBOR Rate; or
(iii) shall impose on such Lender any other condition, the cost
of which is not otherwise included in the determination of the LIBOR
Rate;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or issuing or participating in Letters of
Credit, or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender on an after-tax basis for such
increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law, but with which
similarly-situated entities generally comply) from any Governmental Authority
made subsequent to the date such Lender becomes a party hereto shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender on an after-tax basis for such reduction.
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(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the Borrower (with a
copy to the General Administrative Agent of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this Section submitted by such Lender to the Borrower (with a copy to the
General Administrative Agent) shall be conclusive in the absence of manifest
error. The agreements in this Section shall survive the termination of this
Agreement, the payment of the Loans, and all other amounts payable hereunder.
4.12 TAXES. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the General Administrative Agent,
Collateral Agent or any Lender as a result of a present or former connection
between the General Administrative Agent, Collateral Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the General Administrative Agent, Collateral
Agent or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees deductions or withholdings ("NON-EXCLUDED TAXES") are required to be
withheld from any amounts payable to the General Administrative Agent,
Collateral Agent, or any Lender hereunder or under any Note, the amounts so
payable to the General Administrative Agent, Collateral Agent or such Lender
shall be increased to the extent necessary to yield to the General
Administrative Agent, Collateral Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, PROVIDED, HOWEVER, that the
Borrower shall not be required to increase any such amounts payable to any
Lender if such Lender fails to comply with the requirements of paragraph (b) of
this Section. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter such Borrower shall send to the General
Administrative Agent or Collateral Agent for its own account or for the account
of such Lender, as the case may be, a certified copy of an original official
receipt or other documentary evidence received by such Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Administrative
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the General Administrative Agent, Collateral Agent and the
Lenders for any incremental Non-Excluded Taxes or interest or penalties thereon
that may become payable by the General Administrative Agent, Collateral Agent or
any Lender as a result of any such failure. The agreements in this subsection
shall survive the termination of this Agreement, the payment of the Loans, and
all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) in the case of a Lender other than a Lender described in
subsection 4.12(b)(ii);
35
(A) deliver to the Borrower and the General Administrative Agent
(A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case
may be, and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be;
(B) deliver to the Borrower and the General Administrative Agent
two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(C) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower
or the General Administrative Agent; and
(D) file amendments to such forms as and when required; and
(ii) in the case of a Lender that is not a "bank" under Section
881(c)(3)(A) of the Code and that is legally unable to comply with the
requirements of subsection 4.12(b)(i);
(A) at least five Business Days before the date of the initial
payment to be made by the Borrower under this Agreement to such
Lender, deliver to the Borrower and the General Administrative Agent
(I) a statement that such Lender (x) is not a "bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated
as a bank for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application made to
a rating agency or qualification for any exemption from tax,
securities law or other legal requirements, (y) is not a 10-percent
shareholder within the meaning of Section 881(c)(3)(B) of the Code and
(z) is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code
and (II) a properly completed and duly executed Internal Revenue
Service Form W-8 or applicable successor form; and
(B) deliver to the Borrower and the General Administrative Agent
two further properly completed and duly executed copies of said Form
W-8, or any successor applicable form at least five Business Days on
or before the date that any such Form W-8 expires or becomes obsolete
or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower or upon the
request of the Borrower or the General Administrative Agent; and
36
(C) obtain such extensions of time for filing and completing such
forms or certifications as may be reasonably requested by the Borrower
and the General Administrative Agent; and
(D) file amendments to such forms as and when required;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the General
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
4.13 INDEMNITY. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of LIBOR Loans after the Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after such
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of LIBOR Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) OVER (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
4.14 CHANGE OF LENDING OFFICE; REPLACEMENT LENDER. Each Lender
agrees that if it makes any demand for payment under Section 4.11 or 4.12(a), or
if any adoption or change of the type described in Section 4.10 shall occur with
respect to it, (i) it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different
37
lending office if the making of such a designation would reduce or obviate the
need for the Borrower to make payments under Section 4.11 or 4.12(a), or would
eliminate or reduce the effect of any adoption or change described in Section
4.10; PROVIDED, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and (ii) such Lender may be
replaced involuntarily through an amendment approved by the Required Lenders,
the General Administrative Agent and the Borrower and upon payment in full of
all amounts owed to such Lender, PROVIDED, that nothing in this Section 4.14
shall affect or postpone any of the obligations of the Borrower or the rights of
any Lender pursuant to Section 4.11 or 4.12(a).
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the General Administrative Agent and the Lenders to
enter into this Agreement and to make the Extensions of Credit hereunder, the
Borrower hereby represents and warrants to the General Administrative Agent and
each Lender that:
5.1 ACCURACY OF INFORMATION, ETC. Except for financial statements
concerning dates or periods ended before March, 2000, no statement or written
information contained in this Agreement, any other Loan Document or any other
document, certificate or written statement furnished to the General
Administrative Agent or the Lenders or any of them, by or on behalf of any Loan
Party for use in connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. Except for financial
statements concerning dates or periods ended before March, 2000, the projections
and PRO FORMA financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
such Loan Party to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
by such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the General Administrative
Agent and the Lenders for use in connection with the transactions contemplated
hereby and by the other Loan Documents.
5.2 NO CHANGE. Since the Petition Date there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each Loan Party (a)
except as otherwise set forth in the legal opinion of general counsel to the
Borrower, is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) subject to applicable
provisions of the Bankruptcy Code requiring Bankruptcy Court approval, has the
corporate power and authority, and the legal right, to own and operate its
property, to
38
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except where the failure to be so qualified would not reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Upon
entry of the Interim Order, each Loan Party shall have the corporate power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the Borrower, to borrow and obtain
letters of credit hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement, the
Orders and any Notes and to authorize the execution, delivery and performance of
the Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority (other than entry of the Orders) or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents. This Agreement
has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of each Loan Party which is a party thereto.
Upon entry of the Interim Order, this Agreement will constitute, and each other
Loan Document to which it is a party when executed and delivered will
constitute, a legal, valid and binding obligation of the Loan Party which is a
party thereto enforceable against such Loan Party in accordance with its terms
and the Orders.
5.5 NO LEGAL BAR. The execution, delivery and performance of the
Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law
applicable to any Loan Party and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any such Requirement of Law (other than the Liens created by the
Security Documents and the Orders).
5.6 NO MATERIAL LITIGATION. Except for the Cases or as set forth
in Schedule 5.6, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of any Loan
Party, threatened by or against any Loan Party or against any of its properties
or revenues (i) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (ii) which could reasonably be
expected to have a Material Adverse Effect.
5.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect which could have a Material Adverse Effect during the Cases. No Default
or Event of Default has occurred and is continuing.
5.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real
39
property, and good title to, or a valid leasehold interest in, all its other
property, and none of such property is subject to any Lien except as set forth
in Schedule 5.8 or otherwise permitted hereunder.
5.9 INTELLECTUAL PROPERTY. Each Loan Party owns, or is licensed
to use, all trademarks, trade names, copyrights, technology, know-how and
processes necessary for the conduct of its business as currently conducted (the
"INTELLECTUAL PROPERTY"). Except as set forth in Schedule 5.9, no claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Loan Party know of any valid basis for any
such claim. The use of such Intellectual Property by each Loan Party does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. An adverse determination of any or all of the matters set forth
on Schedule 5.9 could not reasonably be expected to have a Material Adverse
Effect.
5.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
5.11 TAXES. Each Loan Party has filed or caused to be filed all
tax returns which, to the knowledge of such Loan Party, are required to be filed
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any taxes, fees or other charges, the amount or validity of which
are currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of such Loan Party except, with respect to the performance by the Loan
Parties of the foregoing requirements where such performance is subject to the
automatic stay); no tax Lien has been filed, and, to the knowledge of such Loan
Party, no claim is being asserted, with respect to any such tax, fee or other
charge.
5.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans
will be used in violation of Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect.
5.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower
40
nor any Commonly Controlled Entity would become subject to any liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits by an amount in excess of $2,000,000.
5.14 INVESTMENT COMPANY ACT; OThER REGULATIONS. No Loan Party is
an "investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Indebtedness.
5.15 AFFILIATES. Schedule 5.15 sets forth a complete list of the
Canadian Subsidiaries and other Affiliates of the Borrower on the Closing Date.
5.16 PURPOSE OF LOANS. The proceeds of the Loans shall be used to
pay expenses in the Cases, including professional fees approved by the
Bankruptcy Court, finance the ongoing working capital needs of the Borrower and
its Subsidiaries in the ordinary course of business and capital expenditures in
accordance with the terms hereof and of the Budget, to pay interest, fees and
other expenses hereunder, to repay the Elgin Loan Obligations and to fund the
adequate protection payments as provided in the Orders.
5.17 ENVIRONMENTAL Matters.
Other than exceptions to any of the following that could not, individually
or in the aggregate, reasonably be expected to give rise to a Material Adverse
Effect and except as set forth on Schedule 5.17:
(a) Each Loan Party (i) is, and within the period of all applicable
statutes of limitation has been, in compliance with all applicable
Environmental Laws; (ii) holds all Environmental Permits (each of which is
in full force and effect) required for any of their current or intended
operations or for any property owned, leased, or otherwise operated by any
of them; (iii) is, and within the period of all applicable statutes of
limitation has been, in compliance with all of their Environmental Permits;
and (iv) reasonably believes that: each of its Environmental Permits will
be timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of it will be timely
obtained and complied with, without material expense; and compliance with
any Environmental Law that is or is expected to become applicable to it
will be timely attained and maintained, without material expense.
41
(b) Materials of Environmental Concern have not been transported,
disposed of, emitted, discharged, or otherwise released or threatened to be
released, to or at any real property now or formerly owned, leased or
operated by any Loan Party or at any other location, which could reasonably
be expected to (i) give rise to liability of such Loan Party under any
applicable Environmental Law, (ii) interfere with the continued operations
of such Loan Party, or (iii) impair the fair saleable value of any real
property owned or leased by such Loan Party.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating
to any Environmental Law to which any Loan Party is, or to the knowledge of
such Loan Party will be, named as a party that is pending or, to the
knowledge of such Loan Party, threatened.
(d) No Loan Party has received any written request for information, or
been notified that it is a potentially responsible party under or relating
to the Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. ss.ss. 9601 ET SEQ., or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(e) No Loan Party has entered into or agreed to any consent decree,
order, or settlement or other agreement, nor is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative,
arbitral, or other forum, relating to compliance with or liability under
any Environmental Law.
(f) No Loan Party has assumed or retained, by contract or operation of
law, any liabilities of any kind, fixed or contingent, known or unknown,
under any Environmental Law or with respect to any Materials of
Environmental Concern.
5.18 SECURITY DOCUMENTS. The Guarantee and Collateral Agreement
and the Orders, taken as a whole, are effective to create in favor of the
General Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein and proceeds
thereof. Upon entry of the Interim Order, the Guarantee and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person other than as permitted by the Guarantee and Collateral Agreement or the
Orders.
5.19 BANK ACCOUNTS. All bank ACCOUNTS of any Loan Party
constitute Blocked Accounts. The Blocked Accounts identified on Schedule 1.1C
constitute all the bank accounts of any Loan Party that feed directly into the
Concentration Account.
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SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO INITIAL EXTENSIONS OF CREDIT. The agreement of
each Lender to make the initial Extension of Credit requested to be made by it
is subject to the satisfaction, immediately prior to or concurrently with the
making of such Extension of Credit on the Closing Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS. The General Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower and each Lender, with a counterpart
for each Lender, (ii) the Guarantee and Collateral Agreement, executed
and delivered by a duly authorized officer of the parties thereto,
with a counterpart or a conformed copy for each Lender, and (iii) if
requested by a Lender, a Note for the account of each relevant Lender,
conforming to the requirements hereof and executed and delivered by a
duly authorized officer of the Borrower.
(b) FINAL ORDER. The Final Order shall have been entered, shall
be in full force and effect, shall not have been stayed, reversed,
vacated, rescinded, modified or amended in any respect and shall be in
form and substance satisfactory to the Underwriters.
(c) CASH COLLATERAL. The Bankruptcy Court shall have entered and
the General Administrative Agent shall have received a copy of, a
final order or orders, in form and substance reasonably satisfactory
to the General Administrative Agent, pursuant to Section 363(c)(2)(B)
of the Bankruptcy Code, authorizing the use by the Borrower and the
Guarantors of any Cash Collateral in which the Prepetition Lenders
under the Prepetition Credit Agreement may have an interest and
providing for Super-Priority Claims, Liens and other adequate
protection, which order(s) shall not have been stayed, reversed,
vacated, rescinded, modified or amended in any respect without the
prior written consent of the General Administrative Agent or, in the
alternative, that the Prepetition Lenders have consented or are deemed
to have consented to such priming and use of cash collateral on the
terms specified herein. The Liens, Super-Priority Claims and adequate
protection described in this paragraph, and the other rights granted
in respect of the use of Cash Collateral, may be contained in the
Final Order.
(d) BLOCKED ACCOUNT AGREEMENTS. The Underwriters shall have
received, in counterparts executed by the relevant Loan Parties and
each bank where a Blocked Account is maintained, agreements in form
and substance satisfactory to the Underwriters, providing for the
creation and maintenance of the Blocked Accounts.
(e) CLOSING CERTIFICATE. The General Administrative Agent shall
have received, with a copy for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit D,
with appropriate insertions and attachments and such changes as the
General Administrative Agent shall approve, otherwise, satisfactory in
form and substance to the General Administrative Agent, executed by
the chief executive officer or any chief financial officer and the
Secretary or Assistant Secretary of such party.
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(f) LEGAL OPINIONS. The General Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel to the Borrower and the other
Loan Parties, in form and substance reasonably satisfactory to
the General Administrative Agent; and
(ii) the executed legal opinion of general counsel to the
Borrower and the Guarantors, in form and substance reasonably
satisfactory to the General Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the General
Administrative Agent may reasonably require.
(g) APPROVALS. All governmental and third party approvals
necessary in connection with the continuing operations of the Loan
Parties and the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(h) AVAILABILITY. The Underwriters shall be satisfied that (on a
PRO FORMA basis after giving effect to the initial Extension of
Credit), the Borrowing Base is adequate to ensure sufficient
availability for the Loan Parties to carry on their operations and
perform their obligations in the ordinary course of business.
(i) REPAYMENT OF LOANS FROM INTERIM PERIOD. If any Loans were
made under the Interim Credit Agreement, the proceeds of the Loans
made in the initial Extension of Credit shall be sufficient, and shall
be used, to repay all such Loans made under the Interim Credit
Agreement.
(j) LIEN SEARCHES. The General Administrative Agent shall have
received the results of a recent search by a Person satisfactory to
the General Administrative Agent, of the Uniform Commercial Code,
judgment and tax lien filings which may have been filed with respect
to personal property of the Loan Parties, and the results of such
search shall be satisfactory to the General Administrative Agent.
(k) INSURANCE. The Underwriters shall have received evidence in
form and substance satisfactory to it that all of the requirements of
Section 7.6 of this Agreement and Section 5.3 of the Guarantee and
Collateral Agreement shall have been satisfied.
(l) ELGIN LOAN. The Elgin Loan Obligations shall have been repaid
or shall be refinanced with the proceeds of such Extension of Credit.
(m) ADDITIONAL MATTERS. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with
the transactions contemplated by this Agreement and the other Loan
Documents shall be satisfactory in form and substance
44
to the Underwriters, and the Underwriters shall have received such
other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as they
shall reasonably request.
6.2 CONDITIONS TO EXTENSION OF CREDIT. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, unless otherwise specified herein, its initial
Extension of Credit) is subject to the satisfaction of the following conditions
precedent:
(a) NOTICE. The General Administrative Agent shall have received
a borrowing notice (of the type described in Section 2.2) or the
Issuing Lender shall have received an Application, as the case may be,
in accordance with Section 3.2.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date.
(c) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Extensions of Credit requested to be made on such date.
(d) BORROWING CERTIFICATE. The General Administrative Agent shall
have received, with a copy for each Lender, a certificate executed by
a Responsible Officer of the Borrower, substantially in the form of
Exhibit E, certifying that (i) the requested Extension of Credit and
the intended use thereof are consistent with the Budget and the other
terms of this Agreement and are necessary, after utilization and
application of the available cash of the Loan Parties (other than
Excess Cash), in order for the Loan Parties to satisfy their
obligations in the ordinary course of business or as otherwise
permitted under this Agreement, (ii) all of the representations and
warranties contained in Section 7 are true and correct in all material
respects as required by Section 6.2(b), (iii) each Loan Party has
observed and performed in all material respects all applicable
covenants and agreements contained herein and in the other Loan
Documents and the Orders (as applicable), and satisfied each condition
to the making of such Extension of Credit contained herein or in the
other Loan Documents or in the Orders (as applicable), to be observed,
performed or satisfied by it, (iv) the making of the requested
Extension of Credit would not cause (A) the aggregate Extensions of
Credit then outstanding at such time to exceed the lesser of (I) the
aggregate Revolving Credit Commitments then in effect and (II) the
Borrowing Base at such time and (B) in the case of a Letter of Credit,
the aggregate L/C Obligations then outstanding to exceed the limits
set forth in Section 3.1 and (v) such Responsible Officer has no
knowledge of any Default or Event of Default.
(e) USE OF PROCEEDS OR LETTER OF CREDIT. The Underwriters shall
be satisfied that the proposed Extension of Credit and its intended
use are consistent with the Budget and the other terms of this
Agreement and are necessary, after utilization and application of the
45
available cash to satisfy their obligations in the ordinary course of
business or as otherwise permitted under this Agreement.
(f) FEES AND EXPENSES. The Underwriters shall have received
payment of all documented fees, costs and expenses owing hereunder at
the time of such Extension of Credit.
(g) BUDGET. The General Administrative Agent and the Lenders
shall have received a detailed budget covering the period from the
Closing Date through the Maturity Date (the "BUDGET") itemizing (on a
weekly basis for the 13 weeks immediately following the Closing Date,
and on a monthly basis thereafter) all revenues projected to be
received and all material expenditures proposed to be made during such
periods and other cash flow and financial projections, all in form and
substance reasonably satisfactory to the Underwriters.
(h) BORROWING BASE CERTIFICATE. The Underwriters shall have
received a Borrowing Base Certificate (dated no more than 3 days
before the date of the Extension of Credit), executed and delivered by
a Responsible Officer of the Borrower.
(i) DUE DILIGENCE. In the case of an Extension of Credit at a
time when less than 25% of the Revolving Credit Commitments are
available to the Borrower, if at such time there is any outstanding
due diligence request, the Borrower shall have fulfilled such request
to the Underwriters' reasonable satisfaction.
(j) MANAGEMENT. The Borrower shall have entered into employment
agreements with the present chief executive officer and chief
operating officer that are satisfactory in form and substance to the
Underwriters.
(k) TURNAROUND FIRM. In the case of any Extension of Credit
requested on or after September 12, 2000, the Bankruptcy Court shall
have entered an order satisfactory in form and substance to the
Underwriters approving the retention of Jay Alix & Associates or
another turnaround firm satisfactory to the Underwriters and such
retention order shall be in full force and effect.
Each request by the Borrower for an Extension of Credit hereunder shall
constitute a representation and warranty by the Borrower as of the date thereof
that the conditions contained in this subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Loan or L/C Obligation remains outstanding or
any amount is owing to any Lender, the General Administrative Agent hereunder or
under any other Loan Document, the
46
Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries and, where applicable,
each of its Canadian Subsidiaries to:
7.1 FINANCIAL STATEMENTS. Furnish to the General Administrative
Agent, and each Lender:
(a) (i) as soon as available, but in any event by September 30,
2000, copies of consolidated balance sheets and the related
consolidated statements of income and retained earnings and cash flow,
for the year ended August 31, 1999, and (ii) as soon as available, but
in any event by October 31, 2000, copies of consolidated balance
sheets and the related consolidated statements of income and retained
earnings and cash flow for the quarters ended November 30, 1999,
February 29, 2000, and May 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;
(b) as soon as available, but in any event within 90 days after
the end of each fiscal year of Holdings, a copy of the consolidated
balance sheet of Holdings and its consolidated subsidiaries as at the
end of such year and the related consolidated statement of income and
retained earnings and of cash flows for such year, 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 other independent certified public
accountants of nationally recognized standing, and consolidating
schedules and supporting analysis in form and substance reasonably
satisfactory to the Underwriters; and
(c) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each
fiscal year of Holdings, commencing with the fiscal year beginning
September 1, 2000, the unaudited consolidated balance sheets of
Holdings and its consolidated subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income
and retained earnings and of cash flows of Holdings and its
consolidated subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, 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);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
7.2 CERTIFICATES; OTHER INFORMATION. Furnish to the General
Administrative Agent and each Lender, or, in the case of clause (i), to the
relevant Lender:
(a) as soon as available but no later than (i) the last Business
Day of each week, commencing with the week in which the Final Order is
entered, an update to the Budget
47
for such week and the following four weeks itemizing on a weekly basis
during such period all revenues projected to be received and material
expenditures proposed to be made during such period, consistent with
the Budget delivered pursuant to Section 6.2(i), in the form of the
Budget delivered pursuant to Section 6.2(g) or otherwise in form and
substance reasonably satisfactory to the Underwriters, and (ii)
thereafter, no later than 10 days before the end of each fiscal month,
an update to the Budget for the following month, itemizing on a weekly
basis for such month with a certificate of a Responsible Officer of
the Borrower stating that such update to the Budget is based upon
reasonable estimates and is accurate to the best knowledge of such
Responsible Officer and detailing the material assumptions on which
such update was based;
(b) on the last Business Day of every calendar week, commencing
with the week in which the Final Order is entered, a comparison of (i)
actual receipts to receipts forecasted in the Budget for the preceding
week and (ii) actual disbursements to disbursements forecasted in the
Budget for the preceding week, with an explanation of any significant
variances;
(c) concurrently with the delivery of each report pursuant to
Section 7.1(c), a certificate of a Responsible Officer stating that,
to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed in all material respects
all of its covenants and other agreements, and satisfied in all
material respects every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in
such certificate;
(d) as soon as available but no later than the fifteenth day of
each fiscal month, commencing in December, 2000, 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;
(e) deliver to Simpson Thacher & Bartlett, counsel to the General
Administrative Agent, Weil, Gotshal & Manges LLP, counsel to the
Steering Committee, Otterbourg, Steindler, Houston & Rosen, P.C.,
counsel to CIT and promptly after the same is available, copies of all
pleadings, motions, applications, judicial information, financial
information or other documents filed on or on behalf of any Loan Party
with the Bankruptcy Court or the United States Trustee in the Cases,
or distributed to any official committee appointed in the Cases;
(f) within five days after the same are sent, copies of all
financial statements and reports that Holdings sends to the holders of
any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports that the Holdings may make to, or file with,
the SEC;
48
(g) promptly, all information requested by the General
Administrative Agent or its representatives concerning the assets,
liabilities, business, operations, cash flow or other aspects of the
Canadian Subsidiaries; and
(h) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
7.3 COLLATERAL REPORTS. Furnish to the Underwriters:
(a) as soon as available but in any event on or before the last
Business Day of each week, a Borrowing Base Certificate, certified as
true and correct in all material respects by a Responsible Officer of
the Borrower setting forth the Borrowing Base and the calculation
thereof as of the close of business of the last Business Day of the
preceding week and accompanied by such supporting detail and
documentation as shall be requested by the Underwriters in their
reasonable discretion; and
(b) such other reports, statements and reconciliations with
respect to the Borrowing Base or Collateral as the Underwriters shall
from time to time request in their reasonable discretion.
7.4 COLLATERAL AUDIT. Permit employees, representatives and/or
agents of any Underwriter, at any time upon such Underwriter's reasonable
request, during normal business hours, to enter into the premises of the
Borrower and any of its Subsidiaries to conduct audits, the reasonable cost and
expense of which will be borne by the Borrower, of (a) the assets of the
Borrower and its Subsidiaries that comprise the Collateral and (b) the
Borrower's and the Guarantors' practices in the computation of the Borrowing
Base.
7.5 CONDUCT OF BUSINESS AND Maintenance OF EXISTENCE. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to Section 8.5; comply with all Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business (including, but not limited to, property and casualty insurance
in an amount of at least $100,000,000 and a deductible of not more than
$5,000,000 per occurrence).
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and
49
activities; and permit representatives of either Underwriter (or, with the
coordination of the General Administrative Agent, the Lenders) to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
7.8 NOTICES. Promptly give notice to the General Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between any Loan Party and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be,
could have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Loan Party in
which the amount involved is $1,000,000 or more and not covered by
insurance or in which criminal sanctions, injunctive or similar relief
is sought and that is not subject to the automatic stay of Section 362
of the Bankruptcy Code;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) the occurrence or expected occurrence of any event that is
reasonably likely to result in any Loan Party being unable to obtain,
renew, retain or comply with any Environmental Permit, the absence of
which could reasonably be expected to have a Material Adverse Effect,
or being unable to comply with any Environmental Law in a manner that
could reasonably be expected to have a Material Adverse Effect
including, without limitation, any notice that any Governmental
Authority may deny any application for an Environmental Permit sought
by, or revoke or refuse to renew any Environmental Permit held by, any
Loan Party; and
(f) any other Material Adverse Effect.
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Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.9 ENVIRONMENTAL LAWS. (a) (i) Comply with all Environmental
Laws applicable to it, and obtain, comply with and maintain any and all
Environmental Permits necessary for its operations as conducted and as planned;
and (ii) take all reasonable efforts to ensure that all of its tenants,
subtenants, contractors, subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and maintain any and all
Environmental Permits, applicable to any of them insofar as any failure to so
comply, obtain or maintain reasonably could adversely affect any Loan Party;
PROVIDED, no Loan Party shall be required by this Agreement to comply with
demands for financial assurance. For purposes of this Section 7.9(a),
noncompliance by any Loan Party with any applicable Environmental Law or
Environmental Permit shall be deemed not to constitute a breach of this
covenant; provided that, upon learning of any actual or suspected noncompliance,
each Loan Party shall promptly undertake all reasonable efforts to achieve
compliance; and provided further that, in any case, such non-compliance, and any
other noncompliance with any Environmental Law, individually or in the
aggregate, could not reasonably be expected to give rise to a Material Adverse
Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders
and directives as to which an appeal has been timely and properly taken in good
faith and provided that the pendency of any and all such appeals does not give
rise to a Material Adverse Effect; PROVIDED, no Loan Party shall be required by
this Agreement to comply with demands for financial assurance.
(c) Prior to acquiring any ownership or leasehold interest in
real property for which a permit would be required for operation as a hazardous
waste facility, or any other real property or other interest in any real
property that could reasonably be expected to give rise to any Loan Party being
found to be subject to potential liability under any Environmental Law: (i)
obtain a written report by a reputable environmental consultant of the
environmental consultant's assessment of the presence or potential presence of
significant levels of any Materials of Environmental Concern on, under, in, or
about the property, or of other conditions or operations that could give rise to
potentially significant liability under or violations of Environmental Law
relating to such acquisition; and (ii) inform the Underwriters of its plans to
acquire such interest in real property and, upon either Underwriters's request,
afford the Underwriters a reasonable opportunity to review and discuss the
contents of such report with the environmental consultant who prepared it and a
knowledgeable representative of the Borrower.
(d) Promptly upon either Underwriter's request if there has been
an Event of Default which has not been fully and timely cured, permit an
environmental consultant whom the Underwriters in their discretion designates to
perform an environmental assessment (including, without limitation: reviewing
documents; interviewing knowledgeable persons; and sampling and analyzing soil,
air, surface water, groundwater, building materials, and/or other media or
substances) in or about property owned or leased by the Borrower or any of its
Subsidiaries, or on which operations of the Borrower or any of its Subsidiaries
otherwise take place. Such
51
environmental assessment shall be in form, scope, and substance satisfactory to
the Underwriters. The Borrower and its Subsidiaries shall cooperate fully in the
conduct of such environmental assessment, and shall pay the costs of such
environmental assessment immediately upon written demand by the Underwriters.
Pursuant to this Section 7.9(d), the Underwriters shall have the right, but
shall not have any duty, to request and/or obtain any such environmental
assessment.
7.10 FURTHER ASSURANCES. Upon the request of the Underwriters,
promptly perform or cause to be performed any and all acts and execute or cause
to be executed any and all documents (including, without limitation, financing
statements and continuation statements) for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or
advisable to maintain, in favor of the General Administrative Agent, for the
benefit of the Lenders, Liens on the Collateral that are duly perfected in
accordance with all applicable Requirements of Law.
7.11 FINANCIAL CONDITION COVENANTS. On or before September 30,
2000 the Borrower shall provide each Lender with a draft of the Business Plan,
and, on or before October 31, 2000, 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. On or before
November 15, 2000 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.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Petition
Date, so long as the Revolving Credit Commitments remain in effect, any Loan,
Reimbursement Obligation, or Letter of Credit remains outstanding or any amount
is owing to any Lender or the General Administrative Agent hereunder or under
any other Loan Document, the Borrower shall not, and shall not permit any
Subsidiary or Canadian Subsidiary to, directly or indirectly:
8.1 PROCEEDS OF REVOLVING CREDIT LOANS. (a) Make (except in the
case of any Canadian Subsidiary) any expenditures, including without limitation,
by using the proceeds of Revolving Credit Loans, for purposes other than those
detailed in the Budget (except with respect to the initial Extension of Credit);
or (b) use any portion of the proceeds of the Revolving Credit Loans, the
Carve-Out, the Collateral, or the Prepetition Lenders' cash collateral to
commence or prosecute any adversary proceeding or contested matter (i) against
the General Administrative Agent, the Lenders, the Prepetition Agent or the
Prepetition Lenders or (ii) with respect to the amount, validity,
enforceability, perfection or priority of (x) the claims of the Prepetition
Lenders against the Borrower or the Prepetition Lenders' Liens which secure the
Prepetition Obligations or (y) the Super-Priority Claims or Liens granted to the
Administrative Agent and the Lenders pursuant to this Agreement, the Guarantee
and Collateral Agreement and the Orders.
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8.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the Petition Date to be listed on
Schedule 8.2(b);
(c) Indebtedness incurred after the Petition Date of the Borrower
to any wholly owned Guarantor and, to the extent permitted by Section
8.8, of any wholly owned Guarantor to the Borrower or any other wholly
owned Guarantor, PROVIDED that such Indebtedness shall be evidenced by
a promissory note which shall be pledged to the General Administrative
Agent;
(d) Indebtedness incurred after the Petition Date to finance the
acquisition of fixed or capital assets (whether pursuant to a loan, a
Financing Lease or otherwise) in an aggregate principal amount not
exceeding as to the Borrower, its Subsidiaries and the Canadian
Subsidiaries $5,000,000 any one time outstanding; and
(e) Indebtedness in the form of Guarantee Obligations permitted
by Section 8.4.
8.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, PROVIDED that adequate reserves
with respect thereto are maintained in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested or otherwise stayed in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Subsidiary;
53
(f) Liens in existence on the Petition Date to be listed on
Schedule 8.3(f), PROVIDED that no such Lien is spread to cover any
additional property after the Closing Date and that the amount of
Indebtedness secured thereby is not increased PROVIDED FURTHER that,
if any such Liens are not permitted under the Prepetition Credit
Agreement, such Liens shall not be material in amount;
(g) Liens securing Indebtedness of the Borrower, its Subsidiaries
and the Canadian Subsidiaries permitted by Section 8.2(d) incurred to
finance the acquisition of fixed or capital assets, PROVIDED that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any property other than the property financed by
such Indebtedness and (iii) the amount of Indebtedness secured thereby
is not increased; and
(h) Liens created pursuant to the Security Documents and the
Orders.
8.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Petition Date and
to be listed on Schedule 8.4(a);
(b) Guarantee Obligations in respect of, or in the nature of,
performance bonds or performance letters of credit or similar
obligations incurred in the ordinary course of business;
(c) Guarantee Obligations in respect of the obligations of
Subsidiaries incurred in the ordinary course of business;
(d) the Guarantee Obligations under any Loan Document or Order;
and
(e) Guarantee Obligations constituting indemnities to an bank
party to a Blocked Account Agreement to the extent such indemnity
relates to performance by such bank under such Blocked Account
Agreement.
8.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except that Ryan and Patrick Holdings, Inc. and its subsidiaries may
be amalgamated into Safety-Kleen Canada, Inc.
8.6 LIMITATION ON DISPOSITION OF ASSETS. Dispose of any of its
property, business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the case
of any Subsidiary, issue or sell any shares of such
54
Subsidiary's or Canadian Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale or other Disposition of inventory, materials and
equipment and uneconomical, obsolete or worn out property in the
ordinary course of business;
(b) the sale of the Elgin Loan Collateral, provided that the net
proceeds thereof are applied in accordance with subsection 4.3(e);
(c) the sale or Disposition of property, business or assets in
addition to other sales permitted under this Section 8.6 in an
aggregate amount not to exceed $5,000,000; and
(d) the sale of the remaining equity interest in Safety-Kleen
(Europe) Limited for fair market value, provided that the net proceeds
thereof are applied as provided in subsection 4.3(d).
8.7 LIMITATION ON DIVIDENDS. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any of its Subsidiaries or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "RESTRICTED
PAYMENTS"), except that (a) any Subsidiary may make Restricted Payments to the
Borrower or any wholly owned Subsidiary of the Borrower and so long as, on the
date of such Restricted Payment, both before and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing and (b) the
Borrower may make Restricted Payments to Holdings to provide for payment in the
ordinary course of business of taxes, directors' fees, stock exchange fees, and
other DE MINIMIS costs and expenses of its operations as a public company
permitted by the Guarantee and Collateral Agreement.
8.8 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make, forgive
or exchange any advance, loan, extension of credit or capital contribution to,
or purchase any stock, bonds, notes, debentures or other securities of or any
assets constituting a business unit of, or make any other investment in, any
Person, except any Loan Party may make:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries who are not on administrative leave for travel,
entertainment and relocation expenses in the
55
ordinary course of business in an aggregate amount for the Borrower
and its Subsidiaries not to exceed $1,000,000 at any one time
outstanding;
(d) investments by the Borrower and its Subsidiaries in the
Subsidiaries of the Borrower that are parties to the Guarantee and
Collateral Agreement;
(e) investments in existence on the Petition Date and to be
listed on Schedule 8.8;
(f) investments in the form of securities received as a result of
bankruptcy proceedings involving customers or suppliers; and
(g) hardship advances to employees of the Borrower or its
Subsidiaries who are not on administrative leave in the ordinary
course of business in an aggregate amount for the Borrower and its
Subsidiaries not to exceed $50,000.
8.9 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
8.10 LIMITATION ON SALES AND LEASEBACKS. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary or Canadian Subsidiary of real or personal property which has been or
is to be sold or transferred by the Borrower or such Subsidiary or Canadian
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of the Borrower or such Subsidiary or Canadian Subsidiary, except
(a) the sale and leaseback of transportation equipment in the ordinary course of
business, provided that such sale and leaseback transactions occur within six
months of the purchase of such equipment and (b) without duplication, for any
such arrangements with respect to real or personal property with respect to
which the aggregate sales price shall not exceed $5,000,000.
8.11 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year
of the Borrower to end on a day other than August 31, unless the Borrower shall
have provided to the General Administrative Agent evidence satisfactory to it
that such change will have no effect on the calculation of, or compliance by the
Borrower with, the covenants established pursuant to Section 7.11; or permit the
fiscal years of the Borrower and Holdings to end on different days.
8.12 LIMITATION ON LINES OF BUSINESS. Enter to any substantial
extent in any line or lines of business activity other than businesses of the
same general type as those in which the Borrower and the Guarantors are engaged
on the date of this Agreement or which are directly related thereto.
56
8.13 CHAPTER 11 CLAIMS; PAYMENT OF PRE-PETITION DATE CLAIMS. (a)
Except for the Carve-Out and Liens permitted pursuant to subsection 8.3(g),
incur or create any other Super-Priority Claim or Lien which is PARI PASSU with
or senior to the claims of (i) the General Administrative Agent and the Lenders
granted pursuant to the Loan Documents and the Orders or (ii) other than for
claims referenced in clause (i), the Prepetition Agent and the Prepetition
Lenders granted pursuant to Sections 2 and 3 of the Guarantee and Collateral
Agreement and the Orders.
(b) Make any payments of pre-Petition Date obligations other than
(i) as permitted under the Orders, (ii) as permitted by the Bankruptcy Court
pursuant to the "First Day" Orders referred to in Section 6.1(d), including
pre-petition wages and benefits and other employee-related claims, and (iii) as
otherwise permitted or required under this Agreement.
8.14 RECLAMATION CLAIMS; BANKRUPTCY CODE SECTION 546(G)
AGREEMENTS. (a) Make any payments or transfer any property on account of claims
asserted by any vendors of the Borrower or any Guarantor for reclamation in
accordance with Section 2-702 of the Uniform Commercial Code and Section 546(c)
of the Bankruptcy Code.
(b) Enter into any agreements or file any motion seeking a
Bankruptcy Court order for the return of property of the Borrower or any
Guarantor to any vendor pursuant to Section 546(g) of the Bankruptcy Code.
8.15 EMPLOYMENT ARRANGEMENTS. Without the prior written consent
of the General Administrative Agent, (a) amend, extend, supplement or replace
the employment arrangements referred to in subsection 6.2(j), or (b) enter into
any employment or consulting agreement with any individual providing for
compensation (including without limitation, incentive or contingency payments)
in excess of $1,000,000 over the term of such contract.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrower
shall fail to pay any interest on any Loan, or any other amount
payable hereunder, within one (1) Business Day after any such interest
or other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection
with this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made
or deemed made; or
57
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 7.11
of this Agreement or Section 5 of the Guarantee and Collateral
Agreement; or
(d) The Borrower or any other Loan Party shall default in the
performance or observance of any covenant or agreement contained in
Section 7.2(a) or 7.3(a) and such default shall contain unremedied for
one (1) Business Day; or
(e) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (d) of this Section), and such default shall
continue unremedied for a period of 20 days; or
(f) (i) Any of the Cases shall be dismissed or converted to a
case under Chapter 7 of the Bankruptcy Code or (ii) an order of the
Bankruptcy Court shall be entered in any of the Cases appointing a
trustee under Chapter 11 of the Bankruptcy Code; or
(g) (i) Except for the Carve-Out, an order of the Bankruptcy
Court shall be entered granting another Super-Priority Claim or Lien
PARI PASSU with or senior to that granted (x) to the General
Administrative Agent (for the benefit of the Lenders) pursuant to this
Agreement and the Orders, or (y) to the Prepetition Lenders pursuant
to the Orders (other than pursuant to clause (x) above), (ii) an order
of a court of competent jurisdiction shall be entered staying,
reversing, vacating or otherwise modifying either of the Orders
without the General Administrative Agent's and the Required Lenders'
consent, or (iii) the Prepetition Lenders' cash collateral shall be
used in a manner inconsistent with the Orders; or
(h) An order of the Bankruptcy Court shall be entered in any of
the Cases appointing an examiner having enlarged powers (beyond those
set forth under Sections 1106(a)(3) and (4) of the Bankruptcy Code)
under Section 1106(b) of the Bankruptcy Code; or
(i) The entry of an order granting relief from the automatic stay
so as to allow a third party to proceed against any asset or assets of
any Loan Party which have a value in excess of $1,000,000 in the
aggregate; or
(j) The filing of any pleading by any Loan Party seeking, or
otherwise consenting to, any of the matters set forth in paragraphs
(f) through (i) of this Section; or
(k) Any Loan Party files any pleading seeking, or otherwise
consenting to, the invalidation, subordination or other challenging of
the Liens granted to secure the Obligations; or
(l) There shall occur after the Petition Date any event which
results in a Material Adverse Effect; or
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(m) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could have a Material Adverse Effect; or
(n) One or more judgments or decrees shall be entered after the
Petition Date against the Borrower or any of its Subsidiaries
involving for the Borrower and its Subsidiaries taken as a whole a
liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $1,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(o) Any Lien created by any Loan Document or Order shall cease to
be enforceable and of the same effect and priority purported to be
created thereby; or
(p) the Borrower shall have failed to (i) deliver to the
Underwriters by September 30, 2000, a draft of the Business Plan, (ii)
deliver to the Underwriters, by October 31, 2000, the Business Plan or
(iii) file a Plan of Reorganization consistent with the Business Plan
by December 31, 2000; or
(q) the Borrower shall have failed to hire by February 28, 2001,
a senior management team, including individuals necessary to effect a
restructuring, reasonably satisfactory to the Underwriters, to
implement the Plan of Reorganization;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the General Administrative Agent may, and, at the request of the Required
Lenders, the General Administrative Agent shall, by notice to the Borrower (with
a copy to counsel for any statutory committee of unsecured creditors appointed
in the Cases and to the United States Trustee), take one or more of the
following actions, at the same or different times (PROVIDED, that with respect
to clause (iii) below and the enforcement of Liens or other remedies with
respect to the Collateral under clause (iv) below, the General Administrative
Agent shall provide the Borrower (with a copy to counsel for
59
any statutory committee of unsecured creditors appointed in the Cases and to the
United States Trustee) with five Business Days' written notice prior to taking
the action contemplated thereby): (i) terminate forthwith the Revolving Credit
Commitments; (ii) declare the Revolving Credit Loans then outstanding to be
forthwith due and payable, whereupon the principal of the Revolving Credit
Loans, together with accrued interest thereon and any unpaid accrued fees and
all other Obligations of the Borrower and the Guarantors accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower and the Guarantors, anything contained
herein or in any other Loan Document to the contrary notwithstanding; (iii)
require each Letter of Credit to be replaced and returned to the Issuing Bank,
undrawn and marked "canceled", or to the extent that the Borrower is unable to
do so, require the Borrower to forthwith deposit in the Cash Collateral Account
cash in an amount equal to 105% of the face amount of each unpaid Letter of
Credit, such cash to be remitted to the Borrower upon the expiration,
cancellation or other termination or satisfaction of the Borrower's
Reimbursement Obligations in respect of any such Letter(s) of Credit and all
other obligations then outstanding under this Agreement, (iv) set-off amounts in
the Cash Collateral Account and the Concentration Account or any other accounts
of the Borrower and apply such amounts to the Obligations of the Borrower and
the Guarantors hereunder and under the other Loan Documents; and (v) exercise
any and all remedies under this Agreement, the Orders, and applicable law
available to the General Administrative Agent and the Lenders.
Except as otherwise expressly provided above in this Section 9,
the Borrower waives presentment, demand, protest or other notice of any kind.
SECTION 10. THE GENERAL ADMINISTRATIVE AGENT AND COLLATERAL AGENT
10.1 APPOINTMENTS. Each Lender hereby irrevocably designates and
appoints Toronto Dominion (Texas), Inc. as the General Administrative Agent of,
and CIT as the Collateral Agent of, such Lender under this Agreement, the other
Loan Documents and in the Cases, and each such Lender irrevocably authorizes the
General Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Loan Documents and in the Cases and to
exercise such powers and perform such duties as are expressly delegated to the
General Administrative Agent and Collateral Agent by the terms of this
Agreement, the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the General Administrative Agent nor the
Collateral Agent shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement, any Loan Document or Order or
otherwise exist against the General Administrative Agent or Collateral Agent.
The Issuing Lender shall act on behalf of the Lenders with
respect to Letters of Credit issued by it under this Agreement and the documents
associated therewith. It is
60
understood and agreed that the Issuing Lender (a) shall have all of the benefits
and immunities (i) provided to an Administrative Agent in this Section 10 with
respect to acts taken or omissions suffered by such Issuing Lender in connection
with Letters of Credit issued by it under this Agreement and the documents
associated therewith as fully as if the term "General Administrative Agent" as
used in this Section 10 included the Issuing Lender with respect to such acts or
omissions and (ii) as additionally provided in this Agreement and (b) shall have
all of the benefits of the provisions of Section 10.7 as fully as if the term
"General Administrative Agent," as used in Section 10.7, included the Issuing
Lender.
10.2 DELEGATION OF DUTIES. The General Administrative Agent and
the Collateral Agent may execute any of their respective powers and duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact, may delegate any or all such powers and duties to each other
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Neither the General Administrative Agent nor the Collateral Agent
shall be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS. Neither the General Administrative
Agent nor the Collateral Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with any Loan Document or Order (except for its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Loan Party or any officer thereof contained in any Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the General Administrative Agent or the Collateral Agent
under or in connection with, any Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Loan Document
or for any failure of the Borrower to perform its obligations hereunder or
thereunder. Neither the General Administrative Agent nor the Collateral Agent
shall be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, any Loan Document, or to inspect the properties, books or records of any
Loan Party or other Person.
10.4 RELIANCE BY GENERAL ADMINISTRATIVE Agent AND COLLATERAL
AGENT. The General Administrative Agent and the Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the General Administrative Agent or
Collateral Agent. The General Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
General Administrative Agent. The General Administrative Agent and the
Collateral Agent shall be fully justified in failing or refusing to take any
action under this Agreement, any other Loan Document or in the Cases unless they
61
shall first receive such advice or concurrence of the Required Lenders, as they
deem appropriate or shall first be indemnified by the Lenders against any and
all liability and expense which may be incurred by reason of taking or
continuing to take any such action. The General Administrative Agent and the
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement, the other Loan Documents or in the
Cases in accordance with a request of the Required Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and all future holders of the Loans.
10.5 NOTICE OF DEFAULT. Neither the General Administrative Agent
nor the Collateral Agent shall be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the General
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the General
Administrative Agent receives such a notice, the General Administrative Agent
shall give notice thereof to the Lenders. The General Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; PROVIDED that unless and until the
General Administrative Agent shall have received such directions, the General
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.6 NON-RELIANCE ON THE GENERAL ADMINISTRATIVE AGENT, COLLATERAL
AGENT AND OTHER LENDERS. (a) Each Lender expressly acknowledges that neither the
General Administrative Agent nor the Collateral Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the General Administrative Agent or Collateral Agent hereinafter taken,
including any review of the affairs of any Loan Party shall be deemed to
constitute any representation or warranty by the General Administrative Agent or
Collateral Agent to any Lender. Each Lender represents to the General
Administrative Agent and the Collateral Agent that it has, independently and
without reliance upon the General Administrative Agent, Collateral Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will, independently and
without reliance upon the General Administrative Agent, Collateral 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 analysis, appraisals
and decisions in taking or not taking action under this Agreement, the other
Loan Documents and in the Cases, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the General Administrative Agent or Collateral Agent hereunder,
neither the General Administrative Agent nor the Collateral Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of
62
any Loan Party which may come into the possession of the General Administrative
Agent, Collateral Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
(b) For purposes of determining compliance with the conditions
specified in Section 6.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the General Administrative Agent or any
Loan Party to such Lender prior to the Closing Date, or required thereunder to
be consented to or approved by or acceptable or satisfactory to such Lender.
10.7 INDEMNIFICATION. The Lenders agree to indemnify the General
Administrative Agent and Collateral Agent, each in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Revolving Credit
Percentages in effect on the date on which indemnification is sought, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the General Administrative Agent or Collateral Agent in any way relating
to or arising out of, the Revolving Credit Commitments, this Agreement, the
other Loan Documents, the Cases or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the General Administrative Agent or Collateral Agent
under or in connection with any of the foregoing; PROVIDED that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from, respectively, the General Administrative
Agent's or Collateral Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
10.8 AGENTS IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES. The
General Administrative Agent, Collateral Agent and their respective Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though the General Administrative Agent or
Collateral Agent were not the General Administrative Agent or Collateral Agent
hereunder and under the other Loan Documents. With respect to the Loans made by
it and with respect to any Letter of Credit issued or participated in by it, the
General Administrative Agent and Collateral Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the General Administrative Agent or
Collateral Agent, and the terms "Lender" and "Lenders" shall include the General
Administrative Agent and Collateral Agent in their individual capacity.
10.9 SUCCESSOR AGENT. The General Administrative Agent or
Collateral Agent may resign upon 10 days' notice to the Lenders. If the General
Administrative Agent or Collateral Agent shall resign under this Agreement and
the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent, shall succeed
to the rights, powers and duties of the General Administrative
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Agent or Collateral Agent hereunder. Effective upon such appointment and
approval, the term "General Administrative Agent" or "Collateral Agent",
respectively, shall mean such successor agent, and such former General
Administrative Agent's or Collateral Agent's rights, powers and duties as
General Administrative Agent or Collateral Agent shall be terminated, without
any other or further act or deed on the part of such former General
Administrative Agent or Collateral Agent or any of the parties to this Agreement
or any holders of the Loans. After any retiring General Administrative Agent's
or Collateral Agent's resignation, the provisions of this Section 10 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
General Administrative Agent or Collateral Agent under this Agreement and the
other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except as set forth in Section 7.11 or in accordance with the
provisions of this Section or another Section hereof expressly specifying the
method of amendment. The Required Lenders may, or, with the written consent of
the Required Lenders, the General Administrative Agent may, from time to time,
(a) with the Borrower, enter into written amendments, supplements or
modifications hereto and to the other Loan Documents or the Orders for the
purpose of adding any provisions to this Agreement, the other Loan Documents or
the Orders or changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the General Administrative Agent, as the case may be,
may specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or the Orders or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitment,
increase the total amount of Commitments by more than $10,000,000 or extend the
expiry date of any Letter of Credit beyond the date referred to in Section
3.1(a), or modify the provisions of Section 4.9, in each case without the
consent of each Lender affected thereby, (ii) amend, modify or waive any
provision of this Section or reduce the percentage specified in the definition
of Required Lenders, or consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement, the other Loan Documents
and the Orders or release all or substantially all of the Collateral, or amend
or modify Section 3 of the Guarantee and Collateral Agreement to include as
additional Collateral, or otherwise take Liens on or security interests in,
Materials of Environmental Concern or real or personal property utilized in the
transport, storage or processing of Materials of Environmental Concern, or
release all or substantially all of the Guarantors from their obligations under
the Guarantee and Collateral Agreement, in each case without the written consent
of all the Lenders, (iii) waive any Event of Default under Sections 9(p) or 9(q)
without the written consent of the holders of 50.1% of the Revolving Credit
Commitments (or, if the Revolving Credit Commitments shall have terminated,
50.1% of the Extensions of Credit then outstanding), (iv) amend, modify or waive
any provision of subsection 4.9(d) or Section 10 without the written
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consent of the General Administrative Agent and Collateral Agent, (v) amend,
modify or waive Sections 4.9(d), (e) and (f) without the consent of the
Collateral Agent or (vi) amend, modify or waive any provision of Section 3
without the written consent of the Issuing Lender. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the General Administrative
Agent and Collateral Agent and all future holders of the Loans. In the case of
any waiver, the Borrower, the Lenders and the General Administrative Agent and
Collateral Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon. If the Borrower requests an amendment or waiver
that requires all Lenders' consent, and the consent of the Required Lenders is
obtained but the consent of all Lenders is not obtained, the Lender or Lenders
which withheld consent may be replaced involuntarily through an amendment
approved by all Required Lenders, the General Administrative Agent and upon
payment in full of all amounts owing to such non-consenting Lender.
11.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the General Administrative Agent, and as
set forth in Schedule 1.1B in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Safety-Kleen Services, Inc.
1301 Gervais Street, 3rd Floor
Columbia, South Carolina 29201
Attention: Chief Executive Officer
Larry Singleton, Chief Financial Officer
Henry Taylor, Esq., General Counsel
Fax: (803) 933-4346
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
333 West Wacker Drive
Chicago, Illinois 60606
Attention: David Kurtz, Esq.
Fax: (312) 407-0411
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The General Administrative
Agent: Toronto Dominion (Texas), Inc.
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attention: Jano Mott
Fax: (713) 951-9921
with a copy to:
TD Securities (USA) Inc.
31 W. 52nd Street
New York, New York 10019
Attention: Peter S. Spielman
Fax: (212) 827-7233
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mark Thompson, Esq.
Fax: (212) 455-2502
and
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Harvey R. Miller, Esq. and
John J. Rapisardi, Esq.
Fax: (212) 310-8007
PROVIDED that any notice, request or demand to or upon the General
Administrative Agent or the Lenders pursuant to Sections 2.2, 2.4, 4.2, 4.3 and
4.4 shall not be effective until received.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the General Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or
66
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
11.5 PAYMENT OF EXPENSES AND TAXES. The BORROWER agrees (a)
subject to the terms of the Final Order, to pay or reimburse the General
Administrative Agent, the Collateral Agent and Steering Committee for all their
respective out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement, the other Loan Documents, the Orders and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
Simpson Thacher & Bartlett, counsel to the General Administrative Agent,
Otterbourg Steindler Handler & Rosen, P.C., counsel to CIT, and Weil, Gotshal &
Manges LLP, counsel to the Steering Committee, (b) subject to the terms of the
Final Order, to pay or reimburse each Lender for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the fees and disbursements of counsel to each
Lender and of counsel to the General Administrative Agent and Collateral Agent,
(c) to pay, indemnify, and hold each Lender, the Collateral Agent and the
General Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, (d) subject to the terms of the Final Order, to pay all the actual
and reasonable expenses of the General Administrative Agent, the Collateral
Agent and the Steering Committee related to this Agreement, the other Loan
Documents, the Orders, the Revolving Credit Loans, the Letters of Credit or in
connection with the Cases (including, without limitation, the on-going
monitoring by the General Administrative Agent, each Underwriter and the
Steering Committee of the Cases, including attendance by the General
Administrative Agent, each Underwriter and the Steering Committee, and their
respective counsel at hearings or other proceedings and the on-going review of
documents filed with the Bankruptcy Court) and (e) to pay, indemnify, and hold
each Lender, the Collateral Agent and the General Administrative Agent harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower or any of its
Subsidiaries or any of the facilities or properties owned, leased or operated by
the Borrower or any of its Subsidiaries (all the foregoing in this clause (e),
collectively, the "indemnified liabilities"), PROVIDED that the Borrower shall
have no obligation hereunder to any person seeking indemnification with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of such person. Without limiting the foregoing, and to the extent
permitted by applicable law, the Borrower agrees, and shall cause each of its
Subsidiaries to agree, not to assert, and hereby waives and agrees to cause each
of its Subsidiaries to waive, all rights for
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contribution or any other rights of recovery with respect to all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of whatever kind or nature whatsoever, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against each Lender and the General Administrative Agent. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the General Administrative Agent, all future holders of the
Extentions of Credit and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking or institutional financial business and in accordance with applicable
law, at any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan or other interest for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the General Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Loan
Document except for those specified in clauses (i) and (ii) of the proviso to
Section 11.1. The Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, PROVIDED that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
11.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 4.11, 4.12, and
4.13 with respect to its participation in the Revolving Credit Commitments and
the Loans and other amounts outstanding from time to time as if it was a Lender;
PROVIDED that, in the case of Section 4.12, such Participant shall have complied
with the requirements of said Section and PROVIDED, FURTHER, that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
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(c) Any Lender may, in the ordinary course of its commercial
banking or institutional financial business and in accordance with applicable
law, at any time and from time to time assign to any Lender, an Approved Fund of
any Lender, or any affiliate thereof or, with the consent of the Borrower and
the General Administrative Agent (which in each case shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or fund (an
"ASSIGNEE") all or any part of its rights and obligations under this Agreement
and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit H, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender, an
Approved Fund of any Lender, or an affiliate thereof, by the Borrower and the
General Administrative Agent) and delivered to the General Administrative Agent
for its acceptance and recording in the Register, PROVIDED that no such
assignment to an Assignee (other than any Lender, any Approved Fund of any
Lender, or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 and, PROVIDED, further, that the assigning Lender shall
retain a Commitment, after giving effect to such assignment, not less than
$5,000,000, (other than in the case of an assignment of all of a Lender's
interests under this Agreement) in each case unless otherwise agreed by the
Borrower and the General Administrative Agent. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this paragraph (c) and paragraph (e) of this
Section, the consent of the Borrower shall not be required, and, unless
requested by the Assignee and/or the assigning Lender, new Notes shall not be
required to be executed and delivered by the Borrower, for any assignment which
occurs at any time when any Event of Default shall have occurred and be
continuing.
(d) The General Administrative Agent, on behalf of the Borrower,
shall maintain at the address of the General Administrative Agent referred to in
Section 11.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Revolving Credit Commitments of, and principal amounts of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the General
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender, an Approved Fund of any Lender, or an affiliate thereof, by the
Borrower and the General Administrative
69
Agent) together with payment to the General Administrative of a registration and
processing fee of $3,500, the General Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee,
subject to the provisions of Section 11.15, any and all financial information in
such Lender's possession concerning the Borrower and its Subsidiaries and
Affiliates which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Subsidiaries and Affiliates prior to becoming
a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 ADJUSTMENTS; SET-OFF. (a) Except as provided in subsection
4.3(i), if any Lender (a "BENEFITTED Lender") shall at any time receive any
payment of all or part of its Extensions of Credit, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit, or interest thereon such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Extensions of Credit, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders (to the extent required by the foregoing clause (i)) PROVIDED, HOWEVER,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. The General Administrative Agent shall use its best efforts to
provide calculations and documentation needed to effect such participations and
to arrange a simultaneous closing of such participations.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch,
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agency or Affiliate thereof to or for the credit or the account of the Borrower.
Each Lender agrees promptly to notify the Borrower and the General
Administrative Agent after any such set-off and application made by such Lender,
PROVIDED that the failure to give such notice shall not affect the validity of
such set-off and application.
(c) Notwithstanding the foregoing provisions of this subsection
11.7, no Lender shall institute any proceeding to collect any amounts owed
hereunder or exercise any remedies (including setoff) with respect to the
amounts owed to it unless such Lender shall comply with the notice procedures
and time periods applicable to the exercise of remedies contained in the Orders.
11.8 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the General Administrative Agent.
11.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such JURISDICTION,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the General Administrative Agent, and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the General
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 SUBMISSION TO JURISDICTION; WAIVERS. Each party to this
Agreement hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general
jurisdiction of the Bankruptcy Court and, if the Bankruptcy Court does
not have (or abstains from) jurisdiction, courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
71
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in Section 11.2 or
Schedule 1.1C or at such other address of which each Administrative
Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
11.13 ACKNOWLEDGMENTS. Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the General Administrative Agent nor any Lender has
any fiduciary relationship with or duty to the Borrower arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the General Administrative
Agent and Lenders, on one hand, and the Borrower, on the other hand,
in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among such Borrower and the
Lenders.
11.14 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE GENERAL
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 CONFIDENTIALITY. Each Lender agrees to keep confidential
all non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential;
PROVIDED that nothing herein shall prevent any Lender from disclosing any such
information (i) to its affiliates, the General Administrative Agent or any other
Lender, (ii) to any Transferee which agrees to comply with the provisions of
this subsection, (iii)
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to its employees, directors, agents, attorneys, accountants and other
professional advisors, or to direct or indirect contractual counterparts in swap
agreements relating to swaps with the Borrower or such contractual
counterparties' professional advisors provided that any such contractual
counterparty or its professional advisors shall agree to keep such confidential
information confidential, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or is currently publicly available or is in
the possession of a Lender on a nonconfidential basis or is disclosed to a
Lender on a nonconfidential basis by a person who in so doing has not violated a
duty of confidentiality owing to the Borrower (vii) to the National Association
of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender or (viii) in connection with the exercise of any remedy hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
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/ Henry H. Taylor
--------------------------------------
Name: Henry H. Taylor
Title: President
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent, Underwriter
and Lender
By: /s/ Warren Finlay
--------------------------------------
Name Warren Finlay
President
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By: /s/ Warren Finlay
--------------------------------------
Name: Warren Finlay
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, Underwriter and Lender
By: /s/ Peter L. Skavla
--------------------------------------
Name Peter L. Skavla
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ William Crawford
--------------------------------------
Name William Crawford
Title: Managing Director
BANK ONE, NA
By: /s/ illegible
--------------------------------------
Name illegible
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: /s/ Kevin Ulrich
--------------------------------------
Name Kevin Ulrich
Title: Authorized Signatory
SCHEDULE 1.1A TO
CREDIT AGREEMENT
COMMITMENTS OF LENDERS
Lender Commitment
Toronto Dominion (Texas), Inc. $45,000,000
The CIT Group/Business Credit, Inc $30,000,000
Bank of America, N.A. $5,000,000
Bank One, NA $5,000,000
Goldman Sachs Credit Partners, L.P. $15,000,000
===========
Total Commitments $100,000,000
SCHEDULE 1.1B TO
CREDIT AGREEMENT
ADDRESSES FOR NOTICE
TORONTO DOMINION (TEXAS), INC. BANK ONE, N.A.
909 Fannin, Suite 1700 Southeast States
Houston, Texas 77010 One Bank One Plaza
Attention: Jano Mott 17th Floor
Telephone: 713-653-8231 Mail Code IL 1-0361
Facsimile: 713-951-9921 Chicago, IL 60670
Attention: Richard Babcock
Telephone: 312-732-3022
with a copy to Facsimile: 312-732-1775
GOLDMAN SACHS CREDIT PARTNERS, L.P.
TD SECURITIES (USA) INC. 85 Broad Street
31 West 52nd Street New YOrk, NY 10004
New York, NY 10019 Attention: Jason Colodne
Attention: Peter S. Spielman Telephone: 212-375-7869
Telephone: 212-822-7660 Facsimile: 212-902-3757
Facsimile: 212-827-7233
THE TORONTO-DOMINION BANK, HOUSTON
AGENCY
909 Fannin, Suite 1700
Houston, Texas 77010
Attention: Jano Mott
Telephone: 713-653-8231
Facsimile: 713-951-9921
THE CIT GROUP/BUSINESS CREDIT, INC.
1211 Avenue of the Americas
New York, New York 10036
Attention: Mark Long
Telephone: 212-536-1274
Facsimile: 212-536-1295
BANK OF AMERICA, NA
335 Madison Avenue
New York, NY 10017
Attention: William Crawford
Telephone: 212-503-7529
Facsimile: 212-503-7080
SCHEDULE 1.1C TO
CREDIT AGREEMENT
BLOCKED ACCOUNTS
------------------------------------------------------------------
Bank Account Number
--------------------------------------- -------------------------
Bank of America, NA 3750844212
(Nationsbank)
--------------------------------------- -------------------------
Bank of America, NA 8188002446
(Nationsbank)
--------------------------------------- -------------------------
Bank One, N.A. 1035872
-------------------------------------- -------------------------
Bank One, N.A. 1064716
--------------------------------------- -------------------------
Northern Trust 99740
--------------------------------------- -------------------------
Wachovia Bank, N.A. 320652738
- ---------------------------------------------------------------------
SCHEDULE 5.6 TO
CREDIT AGREEMENT
LITIGATION
Schedule 5.6
LOG # NAME OF ACTION COURT/CASE NUMBER
042 Part B Permit Appeal - GSX Services of South Carolina, Inc. v. South State of South Carolina, Court of Appeals
Carolina Department of Health and Environmental Control, Citizens Trial Court Case No.: 94-CP-43-175
Asking for A Safe Environment, Energy Resource Foundation, Consolidated Cases: 94-CP-43-178, 94-CP-40-
Environmentalists, Inc. County of Sumter and Sumter County Legislative 1412, 94-CP40-1859
Delegation, Sierra Club
045 Hazardous Waste Treatment Council vs. State of South Carolina, Carroll Federal District Court of South Carolina -
A. Campbell, Jr., in his official capacity and SCDHEC and SC Board of Columbia Division - On Appeal to the 4th
Health and Environmental Control Circuit Court
089 Spectron, Spectron/Galaxy - Superfund Site Elkton, MD
090 Combustion, Inc. Site - Superfund Site Denham Springs, LA
091 Four County Landfill - Superfund Site Cleveland, Ohio
138 Union Chemical Site - Superfund Site Southope, Maine
147 Resolve Site - Superfund Site North Dartmouth, MA
148 H & M Drum Sites - Superfund Site Dartmouth and Freetown, Mass.
161 Laidlaw Environmental Services (TS), Inc. v Enviropact, Inc. Circuit Court for the 6th Judicial Circuit
Pinellas County, FL - Civil Division
169 TERI v. Slocum Equipment Harris County, Texas District Court
176 Friends of the Earth, Inc. and Citizens Local Environmental Action Federal Court Civil Action No. 3:92-1697-17
Network, Inc. v. Laidlaw Environmental Services (TOC), Inc. Supreme Court Civil Action No. 98-822
202 USA v. Allen-Bradley Co. et al. CAM-OR Superfund Site, Westville, US District Court for Northern District of
Indiana Indiana, S. Bend Division Civil Action No. S90-
00593
240 Jumonville Pipe & Machinery Co., Inc. v. Laidlaw Environmental State of Louisiana, Parish of Iberville 18th
Services of White Castle, Inc. (f/k/a Briscoe Maphis, Inc.) Judicial District Court, No. 44,713
241 The City of Tullahoma, Tennessee and the City of Shelbyville, Chancery Court of Tennessee, Seventeenth
Tennessee, et al. v. Bedford County, Tennessee and Kathy K. Prater, Judicial District, at Shelbyville No. 17,515
County Clerk, Bedford County, Tennessee
247 City of Hilliard, Ohio and Candy Thomas, Hilliard Zoning Officer v. Franklin County Municipal Court - Environmental
Division - Case No.
Schedule 5.6
Laidlaw Environmental Services (WT), Inc. 9410EVH-073703
251 Padres Hacia una Vida Mejor, et al v. Laidlaw, Inc., et al. Before the United States EPA and United States
HUD
252 Donald R. Palla, et al. v. County of Kern, et al. Laidlaw Kern County Superior Court, Case No.: 227735
Environmental Services Local Committee, et al. v. County of Kern, et NFT
al. Padres Hacia una Vida Mejor, et al. v. County of Kern, et al. Fresno County Superior Court, Case No.:526493-2
Fresno County Superior Court, Case No.:526433-8
256 Peak Oil - Superfund Site Tampa, Florida
260 Douglas K. Dieter v. The Regents of the University of California, et. United States District Court for The Eastern
al. District of California Case No.: CIV-S-95-686
DFL GGH
270 In Re: Louisiana Department of Environmental Quality & Laidlaw Compliance Order No. HE-C-94-0444 (10/18/95)
Environmental Services, Inc. Penalty Notice No. HE-P-94-0445 (10/18/95)
275 Tangee E. Daniels, Individually, etc., et al., Pltfs. v. Akzo Nobel 193rd Judicial District Court, Dallas County,
Chemicals, Inc. f/k/a Akzo Chemicals, Inc., et al., including Laidlaw Texas
Environmental Services (TES), Inc. f/k/a Technical Environmental Case Number 95-9149-L
Services, Inc.; Solvent Service Company, Inc.; and United States
Pollution Control, Inc.
276 Marti Williams, Individually, etc., et al., Plaintiffs v. Akzo Nobel 241st Judicial District Court, Smith County,
Chemicals, Inc. f/k/a Akzo Chemicals, Inc., et al., including Laidlaw Texas
Environmental Services (TES), Inc., f/k/a Technical Environmental Case Number 94-2771-C
Services, Inc. Defendants, Solvent Service Company, Inc. and United
States Pollution Control, Inc.
295 Wichita North Industrial District - Superfund Site Wichita, Kansas
297 Hardage - Superfund Site McClain County, Oklahoma
298 Ekotek - Superfund Site Salt Lake City, Utah
299 Casmalia Resources - Superfund Site California (Between Los Angeles &
San Francisco)
303 United States Pollution Control, Inc. v. United States of America and United States District Court of Utah
U.S. Army (Tooele Army Depot) No. 93-C-951B
336 Laidlaw Environmental Services (GS), Inc. v. United States of America Docket No. 95-302C (Judge Gibson) U.S. Court of
Federal Claims
338 Crowley Global Settlement - In re: Laidlaw Environmental (Recovery) &
Louisiana Department of Environmental Quality
Compliance Order No. HE-C-88-0654 (3/7/89)
Schedule 5.6
Compliance Order No. HE-C-89-0344 (10/16/89)
Compliance Order No. HE-C-91-0569 (3/25/92)
Compliance Order No. HE-C-91-0120 (3/25/92)
Compliance Order No. HE-C-91-0588 (3/30/92)
Compliance Order No. HE-C-91-0204 (4/3/92)
Compliance Order No. HE-C-90-0613 (4/3/92)
Compliance Order No. HE-C-92-0057 (12/28/92)
Compliance Order No. HE-C-92-0138 (1/7/93)
Compliance Order No. HE-C-92-0475 (3/29/93)
Compliance Order No. HE-C-93-0129 (9/13/93)
Compliance Order No. HE-C-92-0325 (12/2/93)
Compliance Order No. HE-C-93-0701 (8/29/94)
Compliance Order No. HE-C-94-0191 (10/7/94)
Penalty Notice: HE-P-94-0062A (2/21/94)
Docket No.: AHD-HP-94040A
Compliance Order No. HE-C-95-0139 (10/26/95)
Docket No. AHD-HC-95161
Compliance Order No. HE-C-95-0363 (10/26/95
Docket No: AHD-HC-95163
Penalty Notice No. HE-P-95-0140 (10/26/95)
Docket No. AHD-HP-95162
Compliance Order No. HE-C-94-0444 (10/18/95)
Penalty Notice No. HE-P-94-0445 (10/18/95
Compliance Order No. HE-C-95-0378 (2/26/96)
Penalty Notice No. AE-P-95-0379 (3/15/96)
Compliance Order No. HE-C-95-Compliance Order No. HE-C-94-0419 (4/3/95)
Penalty Notice No. HE-P-94-0420 (4/3/95)
Compliance Order No. HE-C-94-0422 (6/30/95Compliance Order
No. HE-C-94-0525 (6/30/95)
Penalty Notice No. HE-P-94-0454 (6/30/95Compliance Order No.
HC-C-96-0260 (11/12/
Compliance Order No. HC-C-96-0261 (11/12/96
362 Virgie Adams et al. v. American Ecology Environmental Services 236th Judicial District Court - Tarrant County,
Corporation et al. TX
Case Number 236-165224-96
365 Missouri Generator/Hazardous Waste Tax MDNR NOV 10/3/96 Tulsa -- EPA Circuit Court of Cole County, Missouri: 19th
ID# OKD 000632737; MO ID #012159 San Antonio -- EPA ID# TXD 052649027; Judicial Circuit
MO ID #013325
Schedule 5.6
Crowley -- EPA ID# LAD 079464095; MO ID #012256 Millington -- EPA ID#
TND 000614321; MO ID #011053 Case Name: Excell TSD. Inc. et al. v.
Missouri Department of Natural Resourcesb
367 Koshrow B. Semnani, d/b/a S.K. Hart Engineering v. United States United States District Court, District of Utah,
Pollution Control, Inc. and USPCI, Inc. Central Division
No. 295 CV 638S Judge Tena Campbell
370 Sheridan Transportation Company v. ECDC Environmental, L.C. 96 Civ. 6304 (MGC)
380 ECDC Environmental, L.C. v. New York Marine and General Insurance 96 Civ. 6033
Company
382 Hosannah Kate Gordon v. Tahoe City Public Utility District et al. Superior Court of California, County of Placer
incl. Laidlaw Environmental Services SEE Related matter 402 Case No. CV 5281
383 Gary St. Hilaire v. State of Arizona, et al., incl. Disposal Control U.S. District Court, District of Arizona
Services, Inc. CIV 95-1071-PHX-PGR(MS)
388 Vicki McBrayer, Dennis McBrayer, Adam McBrayer, and Alex McBrayer vs. Court of Common Pleas, Hilliard County, Ohio
Laidlaw Environmental Services (WT), Inc., Beaver Adhesives, Inc., OSF Case No. 97CVC-01-2057
America, Inc., Medex, Inc., City of Hilliard, Ohio, and Board of
Education of the Hilliard City School District
389 Frank Manchak v. Chemical Waste Management, Laidlaw Environmental US District Court for the District of Delaware;
Services, Inc. and Rollins Environmental Services, Inc., et al. Docket No. 95-709-RRM
398 Appeal of Hong Environmental, Inc. Contract No. N62472-92-D-2025 ASBCA NO. 49990 & 50432
400 United States Fidelity and Guaranty Corporation v. Avondale Industries United States District Court Southern
Incorporated, et al. Mississippi, Eastern Division
Case Number: 4:97CV80LN
402 James R. Courshon, Jr. v. Tahoe City Public Utility District, ET AL. SCV 5426 Superior Court of California, County
including Laidlaw Environmental Services, Inc. of Placer
414 Re: Ville Mercier, Quebec Lagoon Remediation Quebec Superior Court, Montreal
418 Application to Access Information Commission re: Ministry of the Quebec Access to Information Commission
Environment of Quebec Investigation Results and Report Regarding Ville Cour du Quebec
Mercier Lagoons and re: documents from government files relating to
the Mercier lagoons
430 Lake Hemet Water District v. Beaumont Concrete Co. Beaumont Concrete Riverside County Superior Court
Company, Inc. v. JTM Industries, Jim Johnson, Chuck Anderson and Does Court Case No. 28-89-99
1-10
440 Bridgeport Rental and Oil Services (BROS) - Superfund Site (placed on United States District Court for District of
NPL in 1983 for remediation) NJ,
Civil Action # 92-1253, among many others
442 Carlton Gene Rineheart v. Ciba-Geigy Corp. et al. United States District Court Middle District of
Louisiana
Schedule 5.6
Docket No. 96-517
443 PJP Landfill - Superfund Site Bridgeport, NJ
444 McDonnell Douglas Corporation v. Chester Engineers, Inc., Laidlaw U.S. District Court for the District of North
Environmental Services, Inc. and U.S. Pollution Control, Inc. Oklahoma
445 Allen vs. Rollins Environmental Services of Louisiana, Inc. 18th Judicial District Court, Iberville Parish,
Louisiana
Docket No. 47,254
447 Kevin Gaudet v. Phillip Industrial Services of Texas, Inc., f/k/a Civil No. 98-2095
Allwaste Environmental Services of Texas, Inc. 14th Judicial District Court for the Parish of
Calcasieu, Louisiana
Scott Donaldson and Mikelyn Donaldson v. Allwaste Environmental Civil No. 98-0796-LC
Services of Texas, Inc. S. District Court for the Western District of
Louisiana
Kennard P. Stelly and Anthony Stelly v. Allwaste Environmental Civil No. 98-0844-LC U.S.
Services of Texas, Inc., Reliance National Indemnity Co. and Arthur District Court for the Western District of
Lee LaFour Louisiana
Joe Thomas, Jr. And Kathleen Thomas v. Phillip Services/Louisiana, Civil No.98-1709
Inc. and Reliance National Indemnity Company 14th Judicial District Court for the Parish of
Calcasieu, Louisiana
Debra Jackson and James Jackson, individually, and Debra Jackson on Civil No. 98-0779
behalf of her three minor children, Shravin Guillory, Shemire Guillory U.S. District Court for the Western District of
and Shawna Guillory v. Reliance National Indemnity Company, Allwaste Louisiana
Environmental Services of Texas, Inc., and Arthur Lee LaFour
Jeanette Ortego, individually, and on behalf of Joseph Edwin Ortego, a Civil No. 98-2047
minor, and Brandon Keith Wayne Ortego, a minor and Palmer Clint Lewis 14th Judicial Court for the Parish of
individually v. Allwaste Environmental Services of Texas, Inc., Calcasieu, Louisiana
Allwaste Environmental Services of Louisiana, Inc., Allwaste
Environmental Services, Inc., Philip Services of Texas, Inc., Philip
Services/Louisiana, Inc., Walter Binning and Arthur Lee LaFour
Edith Paulette Webb and Denise Michelle Templeton v. Allwaste
Schedule 5.6
Environmental Services of Texas, Inc., Reliance National Indemnity Civil No. 98-1857
Company, Arthur Lee LaFour and Rubicon, Inc. 14th Judicial District Court for the Parish of
Calcasieu, Louisiana
Michael Edward White v. Allwaste Environmental Services of Texas, Civil No. 98-2027
Inc., Reliance National Indemnity Company and Arthur Lee LaFour 14th Judicial District Court for the Parish of
Calcasieu, Louisiana
Jennifer L. White, Amanda McLelland, Shirley Jo Medley, Gary and Civil No. 98-1697
Sharla Lumpkin, individually and on behalf of their minor children, 14th Judicial District Court for the Parish of
Joshua Lumpkin, Caleb Lumpkin and Phillip Lumpkin, William O. Murray, Calcasieu, Louisiana
Mary Kolwyck, Brenda Joubert, Vickie Broussard, individually and on
behalf of her minor daughter, Jasmine Anderson, Avery E. Pickett, Eric
Swope, Chuck and Jackie Long, individually and on behalf of their
minor daughter, Jessica Long, Brian Grey, Edith Paulette Webb, Charles
Webb, Christy Templeton, Gloria Harris, Charles Cole, John Fears,
Joseph Greer and Alice Braxton v. Allwaste Environmental Services of
Texas, Inc., Reliance National Indemnity Company, Arthur Lee LaFour
and Rubicon, Inc.
Robert W. Moore and Laura D. Moore, et ux, both individually and as Civil No. 98-2060
next friends of Robert M. Moore, their minor child; Jeffrey Allen 14th Judicial District Court for the Parish of
Moore and Angela Teresa Moore, et ux, both individually and as next Calcasieu, Louisiana
friends of Jennifer Michelle Moore, Janie Morgan Moore and Jeffrey
Paul Moore, their minor children; Albert June Moore and Janet Lynn
Moore, et ux, both individually and as next friends of Debra Lynn
Moore, Annette Inez Moore and Chad Albert Moore, their minor children;
Harold W. Gardenhire, III, Richard Selas; Dennis W. Bass, III; all
motorists traveling on I-10 at the time of the accident; all
landowners and users affected by the accident; and all other persons,
natural and otherwise, known and unknown, injured by this accident v.
Rubicon, Inc., Allwaste, Inc., Allwaste Environmental Services, Inc.,
Allwaste Environmental Services of Texas, Inc., Philip
Services/Louisiana, Inc. (f/k/a Allwaste Environmental Services of
Louisiana, Inc.), Reliance National Indemnity Company, Arthur Lee
LaFour and City of Vinton
Schedule 5.6
Leah Sterlene Shelton and Larry Shelton v. Allwaste Environmental Civil No. 98-1822
Services of Texas, Inc. and Rubicon, Inc. 14th Judicial District Court for the Parish of
Calcasieu, Louisiana
Deshan Joseph, Randy Martin, Randy White, Billy Joseph, Archie Tate, Civil No. 98-1822
Raul Gillen and New Orleans Auction Galleries, Inc. v. Allwaste 14th Judicial District Court for the Parish of
Environmental Services of Texas, Inc. and ABC Insurance Company Calcasieu, Louisiana
Alton Bert Clark, and wife Sandra Clark, Michael Ezell, Sr. And wife, Civil No. 17102
Tina Ezell and Herbert Fountain v. Allwaste Environmental Services of 344 Judicial District, Chambers County, Texas
Texas, Inc., Arthur Lee LaFour and William Water Binning
Donovan Troy Fontenot and Angela Fontenot v. Phllip Industrial Civil No. 98-2106
Services of Texas, Inc., formally known as Allwaste Environmental 14th Judicial District Court for the Parish of
Services of Texas, Inc. Calcasieu, Louisiana
George Hartfield, et al. v. Allwaste, Inc. and Reliance National Civil No. 98-1352
Indemnity Company United States Western District of Louisiana
Hulen W. Lovelady and Laura Lovelady v. Allstate Environmental Civil No. 98-2082
Services of Texas, Inc., et al. 14th Judicial District Court for the Parish of
Calcaseiu, Louisiana
Safety-Kleen (Encotec), Inc. v. Aon Risk Services of Texas, Inc. f/k/a Civil No. 98-42540 280th District Court of
Alexander & Alexander of Texas, Inc. Harris County, Texas
448 Caudill v. Clark Equipment Company, et al. 13th Judicial Court for Evangeline Parish,
Louisiana
Third party complaint against Safety-Kleen
(Plaquemine), Inc.
Claim No. 03-05128
453 Florence Robinson, et al. v. Board of Commerce, et al. 19th Judicial District Court
Parish of East Baton Rouge, Louisiana
Rollins Environmental Services (LA), Inc. v. Elmer B. Litchfield, East Action No. 412,867 "D"
Baton Rouge Parish Sheriff and Tax Collector Action No. 366,285 "M"
Action No. 374,389 "M"
Rollins Environmental Services (LA), Inc. v. Louisiana Board of Their File No. 830-21
Commerce and Industry No. 366,285 "M"
Schedule 5.6
19th Judicial District Parish of East Baton Rouge, Louisiana Their
File No. 830-21
CONSOLIDATED WITH
Rollins Environmental Services (LA), Inc. v. Louisiana Board of
Commerce and Industry No. 374,389 "M" 19th Judicial District Parish of
East Baton Rouge, Louisiana Their File No. 830-21
CONSOLIDATED IN ONE COURT, DEAL WITH IDENTICAL ISSUES.
455 MSOF Corporation, et al. v. Exxon Corporation, et al. United States District Court for the Middle
District of Louisiana
C/A No. 94-990-B-M2
consolidated with C/A No. 94-991-BM2
(Their file no. 830-34)
461 United States v. Helen Kramer, et al. and State of New Jersey U.S. District Court for District of New Jersey
Department of Environmental Protection v. Almo Anti-Pollution Services C/A No 89-4340 and C/A No. 89-4380
Corp. et al. RES (NJ) - Third party defendant
462 Gulf States Utility vs. Safety-Kleen (Baton Rouge) Before Louisiana Public Service Commission
463 Infinity Enterprises v. Rollins Environmental Services, Inc. Cause No. 96G2466; 239th District Court of
Brazoria County, Texas
466 U.S. Department of Transportation v. RES (TX) Notice of Probable FRA No. ZROE 97-1 (HMT)
Violation (NPV)
469 Allen Ray Cochran v. Air Products Manufacturing Corp., et al. 129th Judicial District Court of Harris County,
Texas
Cause No. 97-10585
470 In the Matter of Rollins Environmental Services (TX), Inc. v. U.S. EPA Administrative Proceeding at EPA Regional
Region 6, Dallas, Texas Office
Docket No. RCRA VI - 106-H
471 USA ex rel William Hesser v. Aptus, Inc., George A. Jacobson, et al. Civil No. 95-00464 DAE
U.S. District Court, District of Hawaii
472 City of Bremerton vs. Laidlaw Environmental Services (GS), Inc. Superior Court of Washington for Kitsap County
Case Number 972027308
479 Melvin Beuford v. Rollins Company, et al incl. Laidlaw Environmental Municipal Court of California, County of
Services of California Inc. Los Angeles
Case No. 97K21123
480 Tara Nicole Dowd, individually and on behalf of her minor daughter, 19th Judicial District Court Parish of East
Taylor Dowd v. Rollins Chempak Inc., Ron Chandler, Continental Baton Rouge, LA
Insurance Company and ABC Insurance Company No. C 431314 Div: C
483 Quang Pham v. Keith Gehring and Laidlaw Environmental Services, Inc. State of Washington, Superior Court for King
County
98-2-03737-7SEA
484 Estate of Juan Carlos Alvarez, et al v. Manuel Lucas Olivera, et al Superior Court of California, Los Angeles
incl. Laidlaw Environmental Services of California, Inc. County
No. BC182134
Schedule 5.6
485 Hanh Thi Kim Nguyen v. Laidlaw Environmental Services of California, Municipal Court of California, County of Los
Inc., et al Angeles, Burbank
Judicial District, No. 97C01444
489 Bareis et al. v. Reynolds Metals Company Circuit Court of Saline County, Ark.- 97-703-02
490 OSHA v. JTM Industries, Inc. RE: Inspection 116485137 OSHA Review Commission (Little Rock, Ark.)
495 Balfour Beatty Construction v. Metro North Commuter Railway Supreme Court of the State of New York, County
of New York
Index No. 98-606355
496 Hollis Road Site-Groundwater contamination. Full Caption as of 6-1-00: South Carolina Department of Health and
South Carolina Department of Health and Environmental Control vs. Environmental Control
Western Atlas, Inc. (f/k/a Litton Industrial Automation Systems, Inc., Effective 6-1-00: Court: United States District
and successor-in-interest to Litton Business Systems, Inc.), David Court, Columbia Division, Civil Action No.:
Bright, individually and d/b/a Superior Container Service, 3:00-1760
Safety-Kleen (TG), Inc., Safety-Kleen Systems Inc., and Hoover
Building Systems, Inc.
506 Frank A. Ciramella v. Basic, Inc., a subsidiary of Combustion Court of Common Please of Lawrence County,
Engineering, Inc., a corporation; AP Green Services, Inc. and Pennsylvania
Bigelow-Liptak Company, a corporation; Koppers Industries, Inc., a Civil Division
subsidiary of Koppers Holdings Corporation, a corporation;
Safety-Kleen Corp., a corporation; Union Carbide Corp., Chemicals and Ciramella - No. 10961-95 CA
Plastics Distribution Division, a corporation; Gojer, Inc., a Ranshaw - No. 10963-95 CA
corporation, Beaver Alkali Products, a division of Davidson Jeanette - No. 10962-95 CA
Industries, a corporation; Calgon Corporation, a subsidiary of Merck, Senko - No. 17-96 CA
Inc.,; English China Clays, Inc., a corporation; Bostik, Inc., a
corporation; Bearings, Inc., a subsidiary of Neill-Lavielle Supply
Co., Inc., a corporation; Hazen Petroleum, Inc., a corporation;
Atlantic-Richfield Co., a corporation; Gulf Oil Co., a subsidiary of
Chevron Corp., a corporation
Claudette Ranshaw, as Administratrix of the Estate of Joseph S. Palka
(deceased) v. Safety-Kleen Corp. et al.
Andrew Jeanette and Antoinette Jeanette v. Safety-Kleen Corp. et al.
Senko v. Basic, Inc., et al.
507 Stanley Clark v. Safety-Kleen Corp. Superior Court of New Jersey, Law Division
Burlington County
Schedule 5.6
Docket No. BUR-L-980-94
Superior Court of New Jersey (03/17/00)
Appellate Division
Docket No.: A-1671-99T2
508 William P. Bennett v. Evans Oil of LA, et al. 14th JUDC, Parish of Calcasieu, Louisiana
Case No. 95-2573
511 Genevieve B. Wiech, as Executrix of the Estate of Sylvester E. Wiech, Court of Common Pleas of Lawrence County
Deceased, Genevieve B. Wiech, as Personal Representative of the Estate Pennsylvania, Civil Division
of Sylvester E. Wiech, Deceased, Genevieve B. Wiech, as Trustee Ad No. 145 of 1997
Litem on behalf of all those persons so entitled on behalf of
Sylvester E. Wiech, Deceased and Genevieve B. Wiech in her own right
v. A. P. Green Services, Inc., Safety-Kleen Corporation, et al.
512 Jorge Talley v. Safety-Kleen OCSC Case No. 784605
514 Ronald K. Soos, Sr. and Mina Soos v. Con-Lux Coatings Inc. a New Superior Court of New Jersey, Law Division,
Jersey Corp., Gulf Oil, a Texas Corporation; AP Green Refractories Hunterdon County
Co., a Missouri Corp., Allied Corporation, a New Jersey Corporation; Docket No. HNT-L-154-95
Safety-Kleen Corp., a Illinois Corp., Able Co., Inc., Baker Co. Inc.
Charley Corp.; Dog Co. Inc.; Easy Co. Inc.; Fox Co. Inc.; George Co.
Inc.; all Fictious Corporations, or other Legal Entities, locations
unknown at present; and Magnesium Elektron, Inc., a New Jersey
Corporation.
517 Alan W. Leighton and Pamela Leighton v. Lori Selstad, in her capacity Commonwealth of Massachusetts, Superior Court,
as Manager of Safety-Kleen Envirosystems, Co., of Marlboro, Worcester County
Massachusetts, Safety-Kleen Envirosystems Co. and John Doe, in his Civil Action No. 98-0210C
capacity as Manager of Safety-Kleen Envirosystems Co. of Marlboro,
Massachusetts Claim No. 55510-00204
523 United States v. Allegheny Ludlum et al. - Breslube Penn Superfund Civil Action Number 97-1863
Site
524 Caldwell Systems - Superfund Site Lenoir, Caldwell County, North
Carolina
527 Marco P. Colasuono v. Safety-Kleen Corp. Supreme Court of the State of New York, County
of Queens
Index No. 012480/97
531 Bres-Penn - Superfund Site (Coraopolis, PA) United States v. Allegheny United States District Court- Western District
Ludlum Corp, et al. of Pennsylvania: Civil Action # 97-1865
Schedule 5.6
532 SRSNJ - Bayonne Barrel & Drum - Superfund Site Newark, NJ
536 San Gabriel Valley El Monte Operable Unit - Superfund site El Monte,
California
537 Safety-Kleen Envirosystems Company of Puerto Rico, Inc. v. Humberto E. Commonwealth of Puerto Rico, Court of First
Escabi Trabal, his wife Irma Trabal, etc. Instance, Superior Court of Mayaguez, Civil
No. IAC 95-0345 (202A)
538 Estes Landfill Contribution Claim - Superfund Site Phoenix, Arizona
540 Kin-Buc Landfill - Superfund Site - or Transtech Industries et. al. U.S. District Court for the District of New
vs. A & Z Septic Clean et. al. ) Jersey / Civil Action No. 2-90-2578 (HAA
541 Administrative Order and Notice of Civil Penalty Assessment New Jersey Department of Environmental
Protection
Log Number: MRO960145
543 Omega Chemical Company - Superfund Site Whittier, California U.S. EPA Region IX
544 Petroleum Products - Superfund Site U.S. EPA
545 Malvern TCE (Petrocon) - Superfund Site CERCLA Action
U.S. EPA Region III
546 SP 35 L.P. vs Kwang Son Kim, Youngye Kim, US Dry Cleaners and Superior Court of New Jersey County of Hudson
Safety-Kleen Corp. #L 3762-98
548 J.C. Pennco - Superfund Site San Antonio, TX TNRCC
550 Marcon Erectors, Inc. - Liability for Additional Clean-up NY State Department of Environmental
Conservation
Consent Order 98-12, R9-4583-98-02
554 In the Matter of Laidlaw Environmental Services, Inc. Administrative New Jersey Department of Environmental
Order and Notice of Civil Administrative Penalty Assessment Protection
Air & Environmental Quality Compliance &
Enforcement
Log #A980153 SRA
557 Construction of Railspur Township of Logan, Gloucester County, New
Jersey Performance Bond No. B1595745 for
Construction of Railspur
562 Taryn Gremillion v. Rollins Environmental Services, et al. No. 37,568, Division "K", 19th Judicial
District Court, Parish of East Baton Rouge,
State of Louisiana
566 Timothy R. E. Keeney, Commissioner of Environmental Protection v. Connecticut Superior Court
Safety-Kleen Corp. Judicial District of Hartford - New Britain at
Hartford
567 Charles T. Nevins, Deborah McCandless Nevins and McCandless Fuels, Superior Court of New Jersey, Gloucester County
Inc. v. Progressive Fuel Oil Co., Rollins Environmental Services (NJ), Chancery Division/General Equity
Inc., et al. a/k/a (Franklinville, New Jersey) Docket No. C-107-91
568 Notice of Violation dated June 19, 1998 and August 6, 1998 Utah Utah Department of Environmental Quality
Department of Environmental Quality, Division of Solid and UTD980957088
Schedule 5.6
Hazardous Waste Warning Letter No. 9808017 - Transporter Requirements
575 City of Hammond Enforcement Matter in re: Safety-Kleen Oil Recovery City of Hammond Department of Environmental
Company Management Cause No.: HDEM 082797
579 Booth Oil Administrative Group v. Safety-Kleen Corp et al. Robinson United States District Court - Western District
Road Remediation Site of New York Case # 98-CV-0696A
581 Three Sisters Ranch Enterprises v. Laidlaw Environmental et al. C-9820683JF
582 Cheri Warner-Friend & Mark D. Friend v. Laidlaw Environmental Superior Court, State of Washington, Yakima
County
# 98-3-0056408
586 Hector R. Rivas vs. SK Corporation et al. (See Talley - #512 & Montiel Case # VC 026692
- #587) Division 4, Second Appellate District, Court of
Appeals
587 Hector Hernandez Montiel vs. Safety-Kleen Corporation (See Talley - Case #: EC 022324
#512 & Montiel - #587) Division 4, Second Appellate District, Court of
Appeals
589 PRC Patterson - Superfund Removal Site Paterson, California U. S. EPA Docket # 98-12
590 In the Matter of Safety-Kleen Corporation (SEP Settlement) United States Environmental Protection Agency,
Region 5 Pesticides and Toxics Enforcement
Section 5-TSCA-96-014
591 Notice of Violation dated July 9, 1998 South Carolina Department of Health and
Environmental Control
593 Laidlaw Environmental Services (TOC), Inc. v. The South Carolina Administrative Law Judge Division
Department of Health and Environmental Control (Appeal of No. 98-ALJ-07-0478-CC
Administrative Order 98-32-HW)
594 Pacific Western Extruded Plastics Company v. Lilyblad, Inc. and United States District Court, Western District
Sol-Pro v. Safety-Kleen - Superfund Site of Washington at Tacoma
Case No.: C97-5217 FDB
595 Sydney Mines - Superfund Site Tampa Area, Florida
596 Operating Industries, Inc. (OII) - Superfund Site Monterey Park,
California
597 FMC Indemnification Matter-Port Of Redwood City - Superfund Site, Port
of Redwood City, California
599 River Cement Company v. Safety-Kleen Systems, Inc. et al. Circuit Court of Jefferson County, Missouri
Case Number CV1994269CCJ3
600 Notices of Violation dated September 17, 1998 - APC ID #: 55005 New Jersey Department of Environmental
Protection
Air & Environmental Quality Compliance &
Enforcement
601 James J. DeMarco v. Safety Kleen Corporation, and John Doe 1-20 Superior Court of New Jersey, Law Division,
Gloucester County
Docket No. GLO-L-1686-96
602 Rosalen Vineberg, Executrix of the Estate of Norman Vineberg v. Commonwealth of Massachusetts
Schedule 5.6
Package Chemical Co., Inc., Brenner Paper & Chemical Co., & Benda Superior Court Department
Products, Inc. v. Package Chemical Co., Inc. v. Vulcan Chemicals, a Civil Action No. 94-4441H
division of Vulcan Materials Company, and PPG Industries, Inc., and
Safety-Kleen Corporation
604 Crystal Flash Limited Partnership of Michigan v. Safety-Kleen State of Michigan, Circuit Court for the County
Corporation of Kent
Case No. 98-08989
605 Administrative Order and Notice of Civil Administrative Penalty New Jersey Department of Environmental
Assessment dated July 1, 1999 Protection
Air & Environmental Quality Compliance &
Enforcement
606 Sandra J. Clay, Individually and as the Administratrix of the Estate West Virginia, Circuit Court of Marshall County
of Francis Allen Clay, deceased v. Safety-Kleen, Corporation, E.I. Civil Action No. 96-C-231M
DuPont De Nemours & Co., Sherwin-Williams Company, Davis & Wilmar,
Inc., Exxon Corp., A. And I. Supply Company, Columbia Paint Corp., RMS
Automotive Paint & Supplies, Big "A" Auto Parts, Inc., Markay Tornado
Products, Inc., John Doe Manufacturers One Through Twenty, and John
Doe Suppliers One Through Twenty.
612 Safety-Kleen Corp. v. Electric Apparatus Company Circuit Court - County of Livingston, MI No.
97-16038 CK
613 In Re: Safety-Kleen Systems, Inc. Complaint, Compliance Order, United States Environmental Protection Agency,
Proposed Civil Penalty and Notice of Opportunity for Hearing Region 5
5-RCRA-010-98; Case Number: ILD980613913
614 Investigation into the cause of a fire at our Avon (NY) Accumulation The New York State Department of Environmental
Center Conservation
625 Stickney/Tyler Administrative Group et al v. Safety-Kleen Enviro U.S. District Court, Northern District of Ohio,
Systems Company Western Division
3:98CV7538
628 SRSNE - Superfund Site Southington, Connecticut
631 Rowley Industrial Park Corp. and Roy G. Ferreira v. Laidlaw Commonwealth of Massachusetts, Superior Court
Environmental Systems (Northeast), Inc. Civil Action No. 98-1853-D
632 William C. Whitehead v. Allied Signal, Inc. et al. (Hardage Superfund CIV-97-1877-C
Site)
634 Lloyd E. Speight v. Tricil Environmental Response, Inc. et al. 60th Judicial District Court, Jefferson County,
including Laidlaw Environmental Services (FS), Inc. Texas
Case Number B155522
636 Ignes Guillory, et al. v. Triad Transportation, Union Carbide 14th Judicial District Court, Calcasieu Parish
Corporation, et al. Guillory: Court Docket No. 97-7987
Theresa Barrett et al. v. Triad Transportation, Union Carbide Barrett: Court Docket No. 97-7864
Corporation, et al.
637 Estate of Victor Lawrence McDonald and Cheryl Duplantier McDonald v. Civil District Court for the Parish of Orleans,
Dixie Web Graphic Corporation, Safety-Kleen State of Louisiana
Case Number 199517301
Schedule 5.6
Corp., et al.
638 Florida Petroleum Reprocessors (FPR) - Superfund Site Davie, Florida
641 SK Services (East), LLC, a Utah Limited Liability Company v. United States District Court, District of New
Consolidated Rail Corporation, a Delaware Corporation Jersey
98cv5831(JCL)
644 Ramon Gomez v. Safety-Kleen Systems, Inc.
646 Hershberger Landfill - Superfund Site Plain City, Ohio
647 Northside Sanitary Landfill - Superfund Site Zionsville, Indiana
650 Bayou Sorrel - Superfund Site Louisiana
651 Kings Road Landfill - Superfund Site Toledo, Ohio
652 Jonas Sewell Transfer Station - Superfund Site Deptford Township,
Gloucester County, New Jersey
653 Seaboard Chemical - Superfund Site Jamestown, North Carolina
654 Envirotek II - Superfund Site Tonawanda, New York
655 Beede Waste Oil Corporation - Superfund Site
657 Notice of Violation dated January 13, 1999 - Subpart CC United States Environmental Protection Agency,
Region 5
658 Dragerton Investments, Inc. v. ECDC Environmental, L.C. and USPCI, Third Judicial District Court, Salt Lake
Inc. County, Utah
Case No. 970909686
659 Mobile Tank Car Site - Superfund Louisville, Kentucky
660 The Housing Authority of The City of Miami Beach v. Virogroup, Inc. a Circuit Court of the 11th Judicial Circuit in
Florida Corporation & Joseph A. Alvarez, P.G., in his individual and for Miami-Dade County, Florida, General
capacity. Jurisdiction Division
Case No. 98-10668 (25)
664 Third Site Enviro-Chem - Superfund Site Zionsville, Indiana
666 McDonnell Douglas Corporation v. Rollins OPC N/K/A SK (LA) Inc.
671 California Prop 65/B & P Code 17200 - Michael R. White et al v. AAD California Superior Court
Disposal et al.
672 California Prop 65\ B & P Code 17200 - Toxic Injuries Corporation California Superior Court
(TIC) vs. SK
Schedule 5.6
673 Joseph P. Kerlicker and Carol Kerlicker v. Safety-Kleen Systems, Inc., Commonwealth of Pennsylvania, County of
and Safety-Kleen Corp. Westmoreland
Court of Common Pleas, No. 6458 of 1998
674 Notice of Violation (NPDES) dated June 26, 1998 South Carolina Department of Health and
Environmental Control
Bureau of Water, Water Enforcement Division
Administrative Order No. 99-079-W dated June 15, 1999 South Carolina Administrative Law Judge
Division
Docket No. 99-ALJ-07-0357-CC, Judge Carolyn C.
Matthews
675 Sicoli & Massaro, Inc. v. Laidlaw Environmental Services, Inc.
677 Adler et al v. Southern California Water Co.-Case # BC 169 892 Superior Court of State of California for
Anderson et al v. Suburban Water Systems et al-Case # KC 028524 County of Los Angeles
Boswell et al v. Suburban Water Systems et al-Case #KC 027318 Case BC169892
Celi et al v. San Gabriel Valley Water Co et al-Case # GC 020622
Criner et al v. San Gabriel Valley Water Co.-Case # GC 021658
Demciuc et al v. Suburban Water Systems et al-Case # KC028732
Dominguez et al v. Southern Ca. Water Co. et al Case# GC 021657
678 Notice of Violation dated November 6, 1998 Violation Notice Illinois Environmental Protection Agency
#L-1998-01526
679 The United States for the Use and Benefit of The Dutra Group and the U.S. District Court, District of New Jersey
Dutra Group, individually v. ECDC Environmental, L.C., SK Services
(East), LC, Safety-Kleen Corp. and American Home Assurance Co.
681 Western Processing - Superfund Site Kent, Washington
682 Holland Custom Cleaners v. Safety-Kleen Systems, Inc.
685 Ex Parte, Plaintiff Bill Rogers, Wilma Rogers, William L. Rogers, Jr., 160th Judicial District Court of Dallas County,
and Beverly Rogers Blackerby v. Safety-Kleen et al. Texas
Cause No. DV98-7806
689 M & J Solvent Company - Superfund Site Atlanta, GA
692 Frederick G. Sutton, on behalf of himself and all other similarly Case No. 99-006140, Supreme Court of the State
situated individuals v Texaco and Safety-Kleen Corp. of New York,
County of Nassau
694 Tides Associates Ltd. etc v. Virogroup, Inc. 99-3081
695 Divex Site- Superfund Site Columbia, SC
697 Administrative Order and Notice of Civil Administrative Penalty New Jersey Department of Environmental
Assessment dated April 21, 1999 Protection Air & Environmental Quality
Compliance & Enforcement, Log No. D990028
Schedule 5.6
699 Administrative Order and Notice of Civil Administrative Penalty New Jersey Department of Environmental
Assessment dated April 21, 1999 Protection Air & Environmental Quality
Compliance & Enforcement, Log No. D990027
701 James & Linda Mills et al v. SK Corp., SK Encotec, Inc. Commonwealth of Ma. Civil Action # 99-2281B
702 Jessie L. Edwards, Debra S. Edwards, Krystal McCright Individually and District Court of Bowie County, Texas
as Representative of the Estate of David C. McCright, Melanie Case No. 99C0613-102
McCright, and Leisa Carole McCright v. Safety-Kleen Corp. et al. (73
defendants)
704 Signature Combs, Inc. et al v. United States of America et al. Civil Action # 98-2968
706 Randy Meadows v. SK Corporation et al. Superior Court of California for County of
Orange
Case No.: 810229
707 Phillip Vavro and Karen Vavro, his wife, Plaintiffs vs. E+E (US), Inc. In Court of Common Please of Butler County,
t/d/b/a a Chemply, PPG Industries, Inc., Fisher Scientific, Pennsylvania
Chemtronics, Inc., Shell Oil Company, Pennzoil Company t/d/b/a AD No. 9-10526
Penreco, Safety-Kleen Corp., McKesson Chemical Company, and John Doe
Corporation, Defendants.
708 Ashley Enterprises, Inc. d/b/a Ashley Marina v. Owens Corning f/k/a Court of Common Pleas, Ninth Judicial Circuit
Owens Corning Fiberglass, Corp., Containment Solutions, Inc. d/b/a Case No.: 99-CP-10-210
Fluid Containment, Inc. and Safety-Kleen (Encotec), Inc., f/k/a
Laidlaw Environmental, f/k/a GSX Tank Management, Inc.
710 Environmental Transportation Services, Inc. v. LES et al. 99-1057BH - In the United States Bankruptcy
Court For the Western District of Oklahoma
711 State of Florida Dept. of Environmental Protection v. Wildcat Run 99-2520 in the Circuit Court of the Second
Venture Corporation (a dissolved Florida Corporation) Judicial Circuit in and For Leon County
712 Kem Bros. Trucking, Inc. v. Darrell L. Twisselman, et al, incl. LES, SC 003404 In The North Kem Municipal Court
Inc. Shafter-Wasco Branch, State of Ca
714 United States Department of Transportation Federal Railroad Federal Railroad Administration No. ZSAF 1999-1
Administration Notice of Probable Violation (HMT)
715 Administrative Order and Notice of Civil Administrative Penalty New Jersey Department of Environmental
Assessment dated May 28, 1999 Protection
Air & Environmental Quality Compliance &
Enforcement
Log # D990044
716 Notice of Violation issued June 1, 1999 Ohio Environmental Protection Agency
721 Hudson County Improvement Authority (HCIA) v. S.K. Services East, LC, Superior Court of New Jersey, Law Division,
Safety-Kleen Corporation, American Home Assurance Company and Hudson County
Hackensack Meadowlands Development Commission Docket No. L-5635-99
736 In the Matter of Safety-Kleen (Pinewood) , Inc. US EPA Region 4, Docket No. CWA 04-99-1020
Schedule 5.6
737 Continued Use Program - State of Michigan Michigan Department of Environmental Quality
741 Municipality of St. Paul de Chateauguay vs. Safety-Kleen Services
(Mercier) Ltd. - (re Lagoon Matter)
742 Municipality of St Martine v. Safety-Kleen Services (Mercier) Ltd. -
(re Lagoon Matter)
743 Municipality of Ville de Mercier v. Safety-Kleen Services (Mercier)
Ltd. - (re Lagoon Matter)
744 Municipality of Ville de Chateauguay v. Safety-Kleen Services
(Mercier) Ltd. - (re Lagoon Matter)
772 Regina v. Harry Wilson Ontario Ministry of Transportation
Offense Notice Number: 60030368
773 Regina v. Services Safety-Kleen (Quebec) Ltd Ontario Ministry of Transportation
Offense Notice Number: 50681114
776 Regina v. Brian Delaney Ontario Ministry of Transportation
Offense Notice Number: 50549036
777 Regina v. Mark Casey Ontario Ministry of Transportation
Offense Notice Number: 42029147
778 Regina v. Safety-Kleen Ltd. Ontario Ministry of Transportation
Offense Notice Number: 50449752
796 Regina v. Safety-Kleen Ltd. Ontario Court of Justice
Offense Notice Number: 50449752
798 Regina v. Laidlaw Environmental Services, Ltd. and Regina v. Cor Ontario Court of Justice
Vanderheyden Offense Notice Number: 40713306
824 Arkansas DEQ Compliance Evaluation Inspection of 02/02/99 EPA ID # Arkansas Department of Environmental Quality
ARD054575238; Notice of Violation LIS 00-018 issued 02/07/00
825 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII
Docket No. TSCA-8-99-12
826 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Complaint & Notice of
Opportunity for Hearing
827 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-03
828 Utah Department of Environmental Quality (UDEQ) Stipulation & Consent UDEQ Notice of Violation (NOV) No. 9812033
Order No. 9907021 UTD No. 981552177
829 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-06
830 U.S. EPA Region 9, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-06
Schedule 5.6
831 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-14
833 Regina v. Safety-Kleen Ltd and Mark Harding Ontario Court of Justice
Offense Notice Number: 5022244
835 Regina v. Safety-Kleen Ltd. (Charges against Safety)
836 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-16
837 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-20
838 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-19
839 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-22
840 William L. Aaron vs. ViroGroup, Inc.
841 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-15
842 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-17
843 U.S. EPA Region VIII, Complaint & Notice of Opportunity for Hearing U.S. EPA Region VIII, Docket No. TSCA-8-99-21
845 Safety-Kleen Systems, Inc. v. Commonwealth of Pennsylvania, Department Environmental Hearing Board
of Environmental Protection EHB Docket No. 99-223-R (General Permit
WMGR-040)
846 Pennsylvania Dept. of Environmental Protection vs. SK Systems Pennsylvania EPA
847 Safety-Kleen Oil Recovery Company v. Erie Malleable Iron Works U.S. District Court for Western District of
Pennsylvania
Civil Action No.: Erie
849 Regina v. Safety-Kleen Ltd. Ontario Court of Justice
Offense Notice Number: 42088955
850 Regina v. Safety-Kleen Ltd. (Operating Overweight Vehicle - Dorchester Ontario Court of Justice
#1) Offense Notice Number: 42088955
851 Regina v. Safety-Kleen Ltd. Ontario Court of Justice
Offense Notice Number: 3995500041
852 Regina v. Safety-Kleen Ltd. Ontario Court of Justice
Offense Notice Number: 60030420
853 Regina v. Garry Quinn Ontario Court of Justice
Offense Notice Number: 50528766
854 Regina vs. Safety-Kleen Ltd. Failure to Maintain Commercial Motor Ontario Court of Justice
Vehicle as Required by Regulations on July 7, 1999
Schedule 5.6
855 Regina v. Safety-Kleen (Quebec) Ltd. - Failure to Ensure Commercial Ontario Court of Justice
Motor Vehicle Conforms to Standards o May 28, 1999
856 Regina v. John Alexander Ontario Court of Justice
Offense Notice Number: 53103476
857 Rotadyne Corporation v. Safety-Kleen, Corp. Circuit Court, State of Wisconsin, Waukesha
County
Case Number: 99CV1479
859 TNRCC Notice of Enforcement Action, Solid Waste Registration No. 50225 Texas Natural Resources Conservation
against Safety-Kleen LaPorte, TX Facility Commission, Region 12
Docket No. 1999-0832-IHW-E; Enforcement ID No.
1575
860 Notice of Violation and Potential Penalty, LAD 000 778 514 Enforcement State of Louisiana Department of Environmental
Tracking # HE-NP-99-0223 Quality
Docket No. HE-P-99-0223
861 Larry J. Green, Sr. and Sheila Green v. Safety-Kleen Corp., ET AL. Okaloosa County Circuit Court, Florida
Case Number 99-2256-CA
862 Part B Permit Proceedings (Compliance History Issues) State of Ohio Hazardous Waste Facility Board
Case No. 98-M-0518
863 Environmental Counsel - Issues related to violations of the Consent Ohio EPA
Order between the Ohio Environmental Protection Agency and
Safety-Kleen Corp. dated December 12, 1994
870 Travelers Insurance Company ASO 134 Newbury Street Trust v. Salem District Court
Safety-Kleen Corp. and North Shore Lincoln Mercury, Inc. Commonwealth Civil Action No. 9936CV1112
of Massachusetts District Court of Massachusetts case #: 99 36CV1112
874 Stephen Metz vs. Safety-Kleen Corp. Superior Court for the State of California,
County of Los Angeles
Case Number BC217746
875 Appeal of Administrative Order / Notice of Civil Administrative NJ Department of Environmental Protection
Penalty Assessment from New Jersey Department of Environmental
Protection dated September 7, 1999
876 State of Nebraska, ex. rel. Michael J. Linder, Directori, Nebraska Nebraska Department of Environmental Quality
Department of Environmental Quality v. Safety-Kleen Systems, Inc. DEQ/EPA Identification Number NED053316535, 1IS
#59398)
877 Bank One, Colorado, N.A. v. Steven M. Gibson and Carmen Gibson Case No. 98CV6932, Div. 14
District Court, City and County of Denver,
Colorado
878 US DOT Notice of Probable Violation RSPA Ref. No. 99-347-SB-EA US Department of Transportation
879 Safety-Kleen (TS), Inc., Safety-Kleen (Pinewood), Inc., and Safety-Kleen United States District Court for the District
Corp. v. Douglas E. Bryant, Commissioner, South of South Carolina
Columbia Division
Schedule 5.6
Carolina Department of Health and Environmental Control, In His CA No.: 3-99-3322
Official Capacity, South Carolina Department of Health and Environmental
Control, and State of South Carolina
880 Administrative Order and Notice of Civil Administrative Penalty New Jersey Department of Environmental
Assessment dated October 6, 1999 Protection
883 Complaint and Compliance Order dated September 24, 1999 United States Environmental Protection Agency,
Region V
Docket No.: RCRA-5-99-007
884 Notice of Proposed Civil Penalty dated September 15, 1999 United Federal Aviation Administration
States Department of Transportation No.: 98SO730037
885 Bryson Adams, et al. v. Environmental Purification Advancement U.S. District Court, Western District
Corporation, et al. Louisiana, Lafayette-Opelousas
Division, C.A. No. 99-1998
886 Notice of Violation dated September 28, 1999 New Jersey Department of Bureau of Hazardous Waste Compliance and
Environmental Protection Enforcement
Transportation Oversight Unit
887 Notice of Violation (NOV) 99-1151 HWM, N.D.C.C. 23-20.3 North Dakota Department of Health,
Environmental Health Section
888 Notice of Violation and Request for Information dated September 22, United States Environmental Protection Agency,
1999 Region 5
889 Karl Stearns and Helene Stearns v. Hazmat Environmental, et al. Superior Court of New Jersey, Law Divisoin -
Passaic County
Civil Action, Docket No. 60389911
890 Notice of Violation dated November 3, 1999 County of Anoka, Minnesota Community Health &
Environmental Services Department
891 McDonnell Douglas Corporation vs. Oil Process Company, et al. United States District Court for the Central
District of California, Case Number 99-10159WMB
(Mcx)
892 David Trebil and Jamie Trebil v. Safety-Kleen Corporation, et al. Superior Court for the State of California,
County of Los Angeles, Case No.: BC219569
893 Norman Reed and Roberta Reed vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles, Central District
Case Number: BC219843
894 Terry Brown and Wendy Brown vs. Safety-Kleen Corporation, et al. Superior Court for the State of California,
County of Los Angeles, Case No. BC219568
895 Antonio Giosa and Ana Maria Giosa vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Orange, Case Number 816071
896 Jose and Guadelia Cruz v. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles-Central District.
Case #BC219901
897 Jesus Delaluz vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles-Central District.
Case #BC219902
Schedule 5.6
898 The People of the State of California vs. Michael Patrick Demay Municipal Court of East Los Angeles Judicial
District, County of Los Angeles, State of
California
Case Number: BA190253
899 Notice of Violation dated November 15, 1999 Illinois Environmental Protection Agency
Violation Notice, L-1999-01439
900 West County Landfill, Inc., a California Corporation; and West Contra U.S. District Court for the Northern District
Costa Sanitary Landfill, Inc., a California Corporation vs. Allied of California
Chemical Corporation, Solvent Service Company, Inc., et al. C99-4965VRW
902 Russell L. Whitesides vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles, Case Number BC218919
903 Avik & Karen Avedisian vs. Safety-Kleen Corporation, et al. Superior Court for the State of California,
County of Los Angeles, Case Number BC220402
904 Steve Panagotacos vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC220594
908 Safety-Kleen v. AIG, Continental Insurance, et al. Superior Court for the State of California,
County of Los Angeles, Case Number BC216723
912 R. v. Safety-Kleen Ltd. et al. Department of Justice - Canada
Saskatchewan Regional Office
Occ.# 24030836
913 Estate of Eddie Jones, Jr. and Glynis Ardis Jones v. Dixie Web Graphic Civil District Court for the Parish of Orleans,
Corporation, Safety-Kleen Corp., et al. State of Louisiana
Case Number 99-18444
914 Laidlaw Environmental Services (TOC), Inc. v. The South Carolina Appeal of Board Decision dated December 9, 1999
Department of Health and Environmental Control to the Circuit Court of South Carolina
915 Raygar Environmental Systems International, Inc. vs. Laidlaw Inc., United States District for the Southern
Laidlaw Investments, Ltd., Laidlaw Transportation, Inc., Laidlaw District of Mississippi
Environmental Services, Inc., LES, Inc., Laidlaw Environmental Civil Action No. 2:99CV376PG
Services (US), Inc., Laidlaw Osco Holdings, Inc., Laidlaw
International, Safety-Kleen Corp.. Safety-Kleen Corp. d/b/a
Safety-Kleen MS, Safety-Kleen Corp. d/b/a Safety-Kleen AL,
Safety-Kleen Corp. d/b/a Safety-Kleen LA
918 Environmental Assessment to Approve the Expansion of the Lambton Ministry of the Environment
Hazardous Waste Landfill
919 Safety-Kleen (TS), Inc. v. South Carolina Department of Health and South Carolina Department of Health and
Environmental Control - Appeal of Administrative Order 99-50-HW and Environmental Control
99-51-HW
Schedule 5.6
920 RCRA Part B Permit Renewal Application - Notice of Deficiencies dated South Carolina Department of Health and
November 30, 1999 Environmental Control
Bureau of Land and Waste Management
Operations Engineering Section
921 Various contract claims in connection with Army Corps of Engineers U.S. Army Corps of Engineers
Contract No. DACW51-97-C-0032 and Contract No. DACW51-98-C-0004
922 Continued Use Program - State of Pennsylvania Pennsylvania Department of Environmental
Protection
924 Appeal of Post Closure Permit Conditions Maryland Department of the Environment
928 Notice of Violation and Penalty Assessment dated December 30, 1999 Division of Environmental Health and Emergency
from County of Union New Jersey (Unpermitted Discharge) Management
Department of Public Safety
929 Mark D. Hansen v. Safety-Kleen Systems, Inc. Third District Court, State of Utah, Salt Lake
County
Case Number 000900125
930 Cornelson Estate vs. Safety-Kleen Ltd., et al.
931 Willie Morris and Annie Morris, Martha Carlie a/k/a Martha Lenard, Court of Common Pleas
Brian K. Banks and Betty Delores Banks, Beverly Williams and Eugene County of Cuyahoga, State of Ohio
Williams, Rueben Little, Martha E. Johnson and Robert D. Johnson, Ruth Case Number: 391834
Cox, James Mabrey, Gloria McNeal, Charles E. Kennerly and Cammilla
Kennerly, Catherine Karel, Ronnie Cross, and Woodrow Wilson v. Metcalf
& Eddy, Inc. and John Does, Contractors who removed contaminated
materials from the General Motor Plant on East 139th and 140 Streets,
Cleveland, Ohio (addresses and names unknown).
932 NOV / Ticket # 97-018811 (Winnipeg, Manitoba) Provincial Court of Manitoba
933 Frank Yee vs. Safety-Kleen Corporation, et al.. Superior Court of the State of California,
County of Los Angeles,
Case #223244
934 John Dilk and Kathie Dilk vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC223247
935 Willis Harrison and Mary Harrison vs. Safety-Kleen Corp., et al. Superior Court of the State of California,
County of Los Angeles, Case
#BC223246
936 Randy Johnson and Kathryn Johnson vs. Safety-Kleen Corporation, et al.. Superior Court of the State of California,
County of Los Angeles,
Case #BC223249
937 Robert Edelman and Geri Edelman vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC223248
938 John Loughran and Peggy Loughran vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC223250
939 Lee Paulin and Judy Paulin vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Schedule 5.6
Case #BC223353
940 Manuel Garcia and Donna Garcia vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC223351
941 James MacDougall and Donna MacDougall vs. Safety-Kleen Corporation, et Superior Court of the State of California,
County of Los Angeles,
Case #BC223354
al.
942 James Henricksen and Lynn Henricksen vs. Safety-Kleen Corporation, et Superior Court of the State of California,
County of Los Angeles,
Case #BC223352
al.
944 Notice of Violation and Enforcement Conference dated January 13, 2000 S. C. Department of Health & Environmental
(Reidsville, NC) Control
945 Notice of Violation and Enforcement Conference dated January 13, 2000 S. C. Department of Health & Environmental
(Pinewood, SC) Control
946 RCRA 3007 Information Request dated December 8, 1999 United States Environmental Protection Agency
Region 5
947 Notice of Violation dated January 13, 2000 New Jersey Department of New Jersey Department of Environmental
Environmental Protection Protection
Hazardous Waste Compliance and Enforcement
949 Safety-Kleen (GS), Inc. vs. United States of America U.S. Armed Services Board of Contract Appeals
950 60,000 Gallon Oil Spill at Little Rock Port, Arkansas Arkansas Department of Environmental Quality
951 Donald Pannel and Edith Pannel vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225448
952 David Cavener and Martie Cavener vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225444
953 Robert Conley and Sandra Conley vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225443
954 Michael Gillen and Valerie Gillen vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225445
955 Gonzalo Roldan vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225449
956 Robert Paulson and Rosemarie Paulson vs. Safety-Kleen Corporation, et al. Superior Court of the State of California,
County of Los Angeles,
Case #BC225446
959 First Union National Bank as Indenture Trustee for the Registered Richland County Court of Common Pleas
Holders of HomeGold Home Equity Loan Asset Backed Notes, Series 1999-1 Civil Action No.: 00CP400867
v. Thomas Montgomery, Germaine R. Montgomery, Richland Memorial
Hospital, Inc.
960 David Ball vs. Safety-Kleen Corporation, et al. In the Court of Common Pleas, Hamilton County,
Ohio
Case #A0001475
961 TNRCC Enforcement - NOV against SK (LaPorte), TX TNRCC ID #50225, Enforcmeent ID # 1575
Docket No. 1999-0832IHWE
962 Notice of Enforcement for Compliance Schedule Evaluation TNRCC ID No. 50089, EPA ID No. TXD055141378
Schedule 5.6
conducted between October 13 & 25, 1999 (Deer Park, TX)
963 Keith Atkins and Judy Atkins vs. Safety-Kleen Corporation, Laidlaw Superior Court of the State of California,
Environmental, et al. County of Los Angeles,
Case #BC227017
964 Norbert Villanyi vs. Safety-Kleen Corporation, Laidlaw Environmental, Superior Court of the State of California,
et al. County of Los Angeles,
Case #BC227018
965 Shareholder Litigation See attached chart)
966 US DOT Notice of Probable Violation RSPA Ref. No. 00-008-SIT-HQ US Department of Transportation
967 Notice of Proposed Civil Penalty issued by FAA regarding alleged FAA Case No. 96-GL-76--0046
shipment on or about December 20, 1995 by Rollins' Bridgeport, NJ
facility to Encotec's Ann Arbor, Michigan facility
968 David & Ruth Gendron v. Safety-Kleen Systems, Inc. Circuit/County Court In and For Volusia County,
Florida
Case Number 99-10351-CIDL
969 RAMP Industries - Superfund Site Denver, Colorado
970 Angelillo Transshipment Site - Superfund Site New Jersey
971 T.G. Capital, LLC & IMEX Partners, LP v. ECDC, L.C., SK Services District Court of Dallas County, Texas, I-162nd
(East), L.C. et al. Judicial District
Case No. Dvooo25221
973 Handy & Harmon Refining Group, Inc. (Bankruptcy)
974 Reedley Wastewater Discharge Issue NPDES Compliance Evaluation US EPA Region IX
Inspection Report
976 Complaint & Penalty against SK Denton, TX Facility US EPA Region 6
Docket No. RCRA-VI-011-00
977 American Mat & Timber Co., Inc. v. Safety-Kleen (FS), Inc. Harris County, TX Court, CCCL #1
Docket No. 732889
978 Rojnald Heninger et ux v. Lucent Technologies, Inc. et al. including Superior Court of New Jersey, Law Division,
Safety-Kleen Monmouth County
Case # MON-L-2607-99
980 United Companies Lending Corporation v. State of Florida, Bureau of Duval County Circuit Court, Florida
Ctrimes Compensation et al including Safety-Kleen Case No. 98-2733-CA
981 IA Consulting, LLC v. Safety-Kleen Corp., Safety-Kleen Systems, Inc., Massachusetts Trial Court, District Court
Laidlaw, Inc. and Laidlaw Environmental Services, Inc. Department
Haverhill Division
982 Jessie T. Pierson v. American Cyanamid Company, et al.
983 Deffenbaugh Industries, Inc. vs. Safety-Kleen Systems, Inc.
990 Energy Systems Maintenance, LLC v. Safety-Kleen Systems, Inc. Marion County Court, State of Indiana
Case No. 49D100004CP000612
992 Red-L Distributors Ltd. v. Safety-Kleen Canada, Inc. Provincial Court of Alberta
Schedule 5.6
Docket No. P00903030916
993 People of the State of Illinois, ex. rel. Robert B. Haida, St. Clair Circuit Court of the 20th Judicial Circuit, St.
County State's Attorney v. Safety-Kleen Systems, Inc. Clair County, IL
No. 00-CH-330
994 Builders Transport, Inc., et al., Debtor in Possession v. Safety-Kleen U.S. Bankruptcy Court, Northern District of
Systems, Inc. f/k/a Safety Kleen Corp. Georgia
Bankruptcy No. 98-68798-JEM
Adversary No. 00-6284
995 John M. Scaffidi, Trustee for Dickey Environmental Systems, LLC v. U.S. Bankruptcy Court, Eastern District of
Safety-Kleen Wisconsin
Bankruptcy No. 99-23442-MDM
Adversary No. 2000 2190
996 Hazmat Environmental Group, Inc. v. Laidlaw Environmental Services, Superior Court of New Jersey Law Division:
Inc., et al. Passaic County
Docket No. PAS-L-5552-99
997 State of Florida Department of Environmental Protection, Brevard County Circuit Court, FL
Petitioner/Counter-Respondent v. Barbara Lambert, Case Number 98-17739-CA
Respondent/Counter-Petitioner v. OHM Remediation Services Corp. and
Safety-Kleen (TG), Inc., et al., Counter-Respondents
998 FAA Investigation of 05/12/00 shipment from Little Rock International DFW Civil Aviation Security Field Office, FAA
Airport to Chicago O'Hare International Airport EIR: 2000SW710400
999 RACT, Inc. v. Safety-Kleen Services, Inc. and John G. McGregor U.S. District Court, District of South
Carolina, Columbia Divisoin
Case Number 3-00-1561-17
1013 SK Systems, Inc. - Oakland, CA Notice of Violation (CA EPA) dated June 6,2000
- based on facility inspections on February 28
and March 28, 2000
1014 SK Systems, Inc. - Elgin, IL (branch) Notice of Violation (IL EPA) dated July 27,
2000 - based on facility inspections on April,
25, 2000 Violation Notice M-2000-01044
1015 SK Systems, Inc. - Dolton, IL Notice of Violation (IL EPA) dated July 27,
2000 - based on facility inspections on April
26, 2000 Violation Notice M-2000-01045
1016 SK Systems, Inc. - Pekin, IL Notice of Violation (IL EPA) dated July 27,
2000 - based on facility inspections on May 3,
2000 Violation Notice M-2000-01047
1017 SK Systems, Inc. - Urbana, IL Notice of Violation (IL EPA) dated July 27,
2000 - based on facility inspections on April
26, 2000 Violation Notice M-2000-01046
1018 SK Systems, Inc. - Caseyville, IL Notice of Violation (IL EPA) dated July 27,
2000 - based on facility inspections on April
11, 2000 Violation Notice M-2000-01043
1019 SK (Aragonite), Inc. - Coffeyville, KS Notice of Violation (KS DHE) dated August 1,
2000 for alleged violation of KS Reg. 28-31-1
SK (Wichita), INc. - Wichita, KS [RCRA 40 CFR 264.136(b)(1)] regarding financial
assurance
SK Systems, Inc. - Edwardsville, KS
SK Systems, Inc. - Wichita, KS
SK Systems, Inc. - Dodge City, KS
1020 SK (Deer Trail), Inc. - Deer Trail, CO Notice of Violation (CO DPHE) dated July 11,
2000 - based on facility inspection on
Schedule 5.6
June 7, 2000
1021 SK (Encotec), Inc. Demand for payment of $12,280.44 plus interest
pursuant to contract - Severn Tren Labs v.
Encotec, Inc., and Safety-Kleen (Encotec), Inc.
1022 SK Systems, Inc. - Fairless Hills, PA Anathea Wright Horsey & Paul Horsey v. Safety-
Kleen Corp.
HR Deborah B. Yawn v. JTM Industries, Inc., ISG Resources, Inc., and EE0C
Safety-Kleen, Inc. Civil Action 1:9-CV-0259
HR Betty Bobbitt v. Laidlaw Environmental Services, Inc. U.S. District Court of Southern Texas
Civil Action No. H-99-2375
HR James Carr, John Johnson, Donald Bennett, Godwin Duru, Patsy Camron, U.S. District Court, Southern District of Texas
Sarah Allen and All Others Similarly Situated v. Safety-Kleen (Deer Docket No. H-00-1045
Park), Inc.
HR Eddie G. Cater v. Safety-Kleen (Deer Park), Inc., Pual Kimble, Paul 281st Judicial District, Harris County, Texas
Sandifer & Teamsters Local Union No. 988 Cause No. 98-45581
HR Nancy Drougas v. Safety-Kleen Corporation n/k/a Laidlaw, Inc. U.S. District Court, Northern District of
Illinois
Case Number 98-C-7959
HR Salvador Duran v. Safety-Kleen, Inc. and Does 1 through 5, inclusive U. S. District Court, Southern District of
California
Case No. 99CV25591GE-JFS
HR Dennis Glenn v. Safety-Kleen Systems, Inc. Probate Court of Denton City, Texas
Cause No. GC-2000-00245
HR Scott L. Hesseltine v. Safety-Kleen Corporation and Nicholas J. Hiller U.S. District Court of Texas
in his capacity as Plan Administrator of the Safety-Kleen Corporation's Case No. 5-99-CV0110-C
Severance Plan
HR Worker's Compensation Appeals Board, State of California WCAB No. SAC 0275523
HR Paul Kent v. Safety-Kleen Corporation Franklin County, Ohio Court of Common Pleas
Docket No. 00CVH-01
HR Mary-Anne Kocsis v. Laidlaw Environmental Services, Inc. and Laidlaw EEOC
Environmental Services, Ltd. Case No. 5:98-CV-60257-AA
HR Donald H. Lee, Sr. v. Safety-Kleen South Carolina Court of Common Pleas, County
of Sumter
Civil Action No. 99-CP-43-981
HR David F. Lucas v. Safety-Kleen Corp. U.S. District Court of South Carolina
Case No. 3:98-1951-10
HR Clyton Joseph Mitchell v. Laidlaw Environmental Services, Inc. Division "A" 19th Judicial District Court,
Parish of East Baton Rouge, Louisiana, No.
408,751
HR Ulyses Crockett and Trinidad Sheehan v. Safety-Kleen Corp., Stuart Superior Court of California, County of Alameda
Levang, Robert Arquilla, George Higgins and Does 1-20 Case Number 814155-0
HR Beverly smith v. Safety-Kleen Corp. and Liberty Mutual Insurance State of Wisconsin, Department of Workforce
Company Development
WC Claim No. 1998018018
Schedule 5.6
HR U.S. District Court, District of South Carolina, Columbia Division Court of Common Pleas
Civil Action No. 3:98-3325-10
HR Teresa Villarreal v. Laidlaw Environmental Services, Inc. U.S. District Court, Southern District of Texas
Docket No. H-99-1206
Schedule 5.6
PENDING SHAREHOLDER LITIGATION
AS OF AUGUST 2, 2000
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MICHAEL POTTS, Individually and on Behalf of all others United States 3/9/00 3/24/00 7/7/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Braganolo (Columbia
Division)
3:00-0769-17
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Marc A. Topaz
William J. Cook Schiffrin & Barroway, LLP
Ness Motley Loadholt Richardson Three Bala Plaza East
& Poole Suite 400
PO Box 365 Bala Cynwyd, PA 19004
Barnwell, SC 29812 and
803-224-8800 Paul J. Geller
803-541-9625 (fax Shepherd & Geller, LLC
7200 W. Camino Real
Suite 203
Boca Raton, FL 33433
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
KENNETH STEINER, Individually and on Behalf of all others United States 3/8/00 3/24/00 5/4/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0750-10
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Robert I. Harwood
William J. Cook Daniella Quitt
Ness Motley Loadholt Richardson Frederick W. Gerkens, III
& Poole Wechsler Harwood Halebain &
PO Box 365 Feffer LLP
Barnwell, SC 29812 488 Madison Ave 8th Fl
803-224-8800 New York, NY 10022
803-541-9625 (fax) 212-935-7400
212-753-3630 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
RACHEL SAMET, Individually and on Behalf of all others United States 3/7/00 3/24/00 7/7/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0739-10
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Steven G. Schulman
William J. Cook Samuel H. Rudman
Ness Motley Loadholt Richardson Milberg Weiss Bershad Hynes &
& Poole Lerach LLP
PO Box 365 One Pennsylvania Plaza
Barnwell, SC 29812 49th Floor
803-224-8800 New York, NY 10119
803-541-9625 (fax) 212-594-5300
212-868-1229 (fax)
and
Kenneth J. Vianale
Milberg Weiss Bershad Hynes & Lerach LLP
Town Center Road
Suite 900
Boca Raton, FL 33486
561-361-5000
561-367-8400 (fax)
and
Sandy Liebhard Bernstein
Liebhard & Lifshitz
10 E. 40th Street, 22nd Fl
New York, NY 10016
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
JERRY KRIM AND HIRSCH WEBER, Individually and on United States 3/9/00 3/24/00 10/5/99 - 5/3/00
behalf of all others Similarly Situated vs. District Court 3/3/00
Safety-Kleen Corp., Kenneth W. Winger, Paul R. (Columbia
Humphreys and Michael Bragagnolo Division)
3:00-0768-17
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Mark Levine
William J. Cook Stull, Stull & Brody
Ness Motley Loadholt Richardson 6 East 45th Street
& Poole New York, NY 10017
PO Box 365 212-687-7230
Barnwell, SC 29812 212-490-2022 (Fax)
803-224-8800 and
803-541-9625 (fax) Harvey Greenfield, Esq.
551 Fifth Avenue
New York, NY 10176 and
Harvey Greenfield, Esq.
551 Fifth Avenue
New York, NY 10176
212-949-5500
212-949-0049
and
Joseph H. Weiss
Weiss & Yourman
551 Fifth Avenue
Suite 1600
New York, NY 10176
212-682-3025
212-682-3010 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
D. SCOTT KELLEY, Individually and on Behalf of all United States 3/8/00 3/24/00 7/7/98 - 5/3/00
others Similarly Situated vs. Safety-Kleen Corp., District Court 3/6/00
Kenneth W. Winger, Paul R. Humphreys and Michael (Columbia
Bragagnolo Division)
3:00-0748-10
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Sherrie R. Savett
William J. Cook Douglas Risen
Ness Motley Loadholt Richardson Berger & Montague, PC
& Poole 1622 Locust Street
PO Box 365 Philadelphia, PA 19103
Barnwell, SC 29812 215-875-3000
803-224-8800 215-875-4636
803-541-9625 (fax) and
Ann Miller
Donoan Miller, LLC
1608 Walnut Street
Suite 1400
Philadelphia, PA 19103
215-732-6020
215-732-8060 (Fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MYRON H. SMITH, Individually and on Behalf of all others United States 3/15/00 3/24/00 7/7/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0829-17
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Sherrie R. Savett
William J. Cook Douglas Risen
Ness Motley Loadholt Richardson Berger & Montague, PC
& Poole 1622 Locust Street
PO Box 365 Philadelphia, PA 19103
Barnwell, SC 29812 215-875-3000
803-224-8800 215-875-4636 (fax)
803-541-9625 (fax) and
Richard A. Lockridge
Gregg M. Fishbein
Lockridge Grindal Nauen PLLP
100 Washington Ave S.
Suite 2200
Minneapolis, MN 55401
612-339-6900
and
Wallace A. Shownan
1350 Avenue of the Americas,
29th Fl
New York NY 10019
212-333-2322
212-581-8598 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
FAYE SCHER, Individually and on Behalf of all others United States 3/13/00 3/24/00 7/7/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
INSURANCE NOTIFICATION SENT 3/28/00 3:00-0791-17
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Andrew N. Friedman
William J. Cook Cohen Milstein & Hausfeld &
Ness Motley Loadholt Richardson Toll PLLC
& Poole 1100 New York Ave NW
PO Box 365 Suite 500 West Tower
Barnwell, SC 29812 Washington, DC 20005
803-224-8800 202-408-4600
803-541-9625 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MAURICE SUEDE, Individually and on Behalf of all others United States 3/13/00 3/24/00 10/6/98 - 5/3/00
Similarly Situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/3/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0792-17
INSURANCE NOTIFICATION SENT 3/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Fred Taylor Isquith
William J. Cook Gregory M. Nespole
Ness Motley Loadholt Richardson Wolf Haldenstein Adler Freeman
& Poole & Herz LLP
PO Box 365 270 Madison Ave.
Barnwell, SC 29812 New York, NY 10016
803-224-8800 212-545-4600
803-541-9625 (fax) and
Charles J. Piven, Esq
World Trade Center
401 E. Pratt Street
Suite 2525
Baltimore, MD 21202
410-332-0030
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
IZIDOR KLEIN, Individually and on Behalf of all other United States 3/8/00 3/10/00 7/7/98 - 4/19/00
Similarly Situated v. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Michael Bragagnolo and Paul R. Humphreys (Columbia
Division)
INSURANCE NOTIFICATION SENT 3/17/00 3:00-749-17
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
D. Garrison "Gary" Hill Stanley M. Grossman
Hill Wyatt and Bannister, LLP D. Brian Hufford
PO Box 2585 Pomerantz Haudek Block Grossman
Greenville, SC 29602 & Gross, LLP
864-242-5133 100 Park Avenue
864-235-0199 (fax) New York, NY 10017
212-661-1100
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
FRANK A. RICCOBONO, Individually and on Behalf of all United States 3/20/00 3/24/00 7/7/98 - 5/3/00
others Similarly Situated vs. Safety-Kleen Corp., Kenneth District Court 3/3/00
W. Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
INSURANCE NOTIFICATION SENT 3/28/00 3:00-0866-17
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Lynn L. Sarko
William J. Cook Elizabeth A. Leland
Ness Motley Loadholt Richardson Gretchen Freeman Cappio Keller
& Poole Rohrback LLP
PO Box 365 1201 Third Avenue
Barnwell, SC 29812 Suite 3200
803-541-9625 (fax) Seattle, WA 98101
803-224-8800 206-623-1900
206-623-3384 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
JOHN ULRICH, on behalf of himself and all others United States 3/30/00 3/31/00 10/6/98 - 4/20/00 (no
similarly situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/3/00 extension
Winger, Michael J. Bragagnolo and Paul R. Humphreys (Columbia obtained)
Division)
INSURANCE NOTIFICATION SENT 4/7/00 3:00-1005
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
D. Garrison "Gary" Hill Jeffrey C. Block
Hill Wyatt and Bannister, LLP Michael G. Lange
PO Box 2585 Patrick T. Egan
Greenville, SC 29602 Berman Devalerio & Pease LLP
864-242-5133 One Liberty Square
864-235-0199 (fax) Boston, MA 02109
617-542-8300
and
Wallace A. Showman, PC
1350 Avenue of the Americas -
29th Fl
New York, NY 10019
212-333-2322
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
JACK FORREST, on behalf of himself and all other United States 3/7/00 4/13/00 7/7/98 - Not Served
similarly situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Michael J. Bragagnolo and Paul R. Humphreys (Columbia
Division)
3:00-736
INSURANCE NOTIFICATION SENT 4/20/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
W. Gaston Fairey
J. Christopher Mills
Fairey Parise and Mills PA
PO Box 8443
Columbia, SC 29202
803-252-7606
803-254-5759
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MICHAEL SCHMELING, on behalf of himself and all other United States 3/20/00 4/13/00 7/9/97- 5/11/00
similarly situated vs. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Michael J. Bragagnolo and Paul R. Humphreys (Columbia
Division)
INSURANCE NOTIFICATION SENT 4/20/00 3:00-875
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
W. Gaston Fairey
J. Christopher Mills
Fairey Parise and Mills PA
PO Box 8443
Columbia, SC 29202
803-252-7606
803-254-5759
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
JOSEPH LYONS, GERALD V. CARSON & JACOB P. LEVIN, on United States 3/29/00 4/13/00 7/7/98- 5/11/00
behalf of himself and all other similarly situated vs. District Court 3/6/00
Safety-Kleen Corp., Kenneth W. Winger, Michael J. (Columbia
Bragagnolo and Paul R. Humphreys Division)
3:00-996
INSURANCE NOTIFICATION SENT 4/20/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
W. Gaston Fairey
J. Christopher Mills
Fairey Parise and Mills PA
PO Box 8443
Columbia, SC 29202
803-252-7606
803-254-5759
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
(SHAREHOLDER DERIVATIVE)
PETER FRANK, Plaintiff vs. Kenneth W. Winger, John W. Court of Chancery 3/24/00 3/29/00 5/2/00
Rollins, James R. Bullock, David E. Thomas, Jr., Leslie of the State of
W. Haworth, Henry B. Tippie, James L. Wareham, John Delaware (New
W. Rollins, Jr., Robert W. Luba and Grover C. Wren, Castle County)
Defendants and Safety-Kleen Corp. (Nominal Defendant) 17923-NC
INSURANCE NOTIFICATION SENT 4/7/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Norman M. Monhait Bull & Lifshitz, LLP
Rosenthal Monhait Gross & 246 West 38th Street
Goddess, PA New York, NY 10018
PO Box 1070 212-869-9449
Wilmington, DE 19899-1070
302-656-4433
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
(SHAREHOLDER DERIVATIVE)
HARBOR FINANCE PARTNERS, derivatively on behalf of Court of Chancery 3/30/00 Not Served as Not Served
Safety-Kleen Corp., Plaintiff against James R. Bullock, of the State of of 4/7/00
John W. Rollins, Sr., David E. Thomas, Jr., Kenneth W. Delaware (New
Winger, Leslie W. Haworth, Henry B. Tippie, James L. Castle County)
Wareham, John W. Rollins, Jr., Robert W. Luba, Peter 1974-NC
N.T. Widdrington and Grover C. Wrenn, Defendants and
Safety-Kleen Corp. (Nominal Defendant)
NO NOTIFICATION - NOT SERVED
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Norman M. Monhait Bull & Lifshitz, LLP
Rosenthal Monhait Gross & 246 West 38th Street
Goddess, PA New York, NY 10018
PO Box 1070 212-869-9449
Wilmington, DE 19899-1070
302-656-4433
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MUZINICH & CO., Individually and on Behalf of All Others United States 4/13/00 4/26/00 7/7/98 - To Be Determined
Similarly Situated v. Safety-Kleen Corp., Kenneth W. District Court 3/5/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
INSURANCE NOTIFICATION SENT 4/28/00 3:00-1145-17
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Jeffrey H. Squire
William J. Cook Ira M. Press
Ness Motley Loadholt Richardson Kirby McInerney & Squire, LLP
& Poole 830 Third Avenue
PO Box 365 10th Floor
Barnwell, SC 29812 New York, NY 10022
803-224-8800 212-317-2300
803-541-9625 (fax 212-751-2540 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
YONG GEN CAI, Individually and on Behalf of All Others United States 3/29/00 4/26/00 7/7/98 - To Be Determined
Similarly Situated v. Safety-Kleen Corp., Kenneth W. District Court 3/3/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0995-17
INSURANCE NOTIFICATION SENT 4/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Lynn L. Sarko
William J. Cook Elizabeth A. Leland
Ness Motley Loadholt Richardson Gretchen Freeman Cappio Keller
& Poole Rohrback LLP
PO Box 365 1201 Third Avenue
Barnwell, SC 29812 Suite 3200
803-224-8800 Seattle, WA 98101
803-541-9625 (fax) 206-623-1900
206-623-3384 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
RICHARD WEAVER, Individually and on Behalf of All Others United States 3/30/00 4/26/00 7/7/98 - To Be Determined
Similarly Situated v. Safety-Kleen Corp., Kenneth W. District Court 3/3/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-1012-17
INSURANCE NOTIFICATION SENT 4/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Marc H. Edelson
William J. Cook Hoffman & Edelson
Ness Motley Loadholt Richardson 45 W. Court Street
& Poole Doylestown, PA 18901
PO Box 365 215-230-8043
Barnwell, SC 29812 212-230-8735 (Fax)
803-224-8800
803-541-9625 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
JAMES K. HODGE, Individually and on Behalf of All Others United States 3/28/00 4/26/00 7/7/98 - To Be Determined
Similarly Situated v. Safety-Kleen Corp., Kenneth W. District Court 3/6/00
Winger, Paul R. Humphreys and Michael Bragagnolo (Columbia
Division)
3:00-0974-17
INSURANCE NOTIFICATION SENT 4/28/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Sherrie R. Savett
William J. Cook Douglas Risen
Ness Motley Loadholt Richardson Berger & Montague, PC
& Poole 1622 Locust Street
PO Box 365 Philadelphia, PA 19103
Barnwell, SC 29812 215-875-3000
803-224-8800 215-875-4636
803-541-9625 (fax) and
Ann Miller
Donoan Miller, LLC
1608 Walnut Street
Suite 1400
Philadelphia, PA 19103
215-732-6020
215-732-8060 (Fax)
and
Paul J. Scarlato
Mark S. Goldman
Weinstein Kitchenoff Scarlato &
Goldman, LTD
1608 Walnut Street
Suite 1400
Philadelphia, PA 19103
215-545-7200
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
MICHAEL A. COLLINS AND LAURIE COLLINS, on Behalf of United States 5/08/00 5/16/00 Holders of To Be Determined
Themselves and All Others Similarly Situated v. District Court RES shares
Safety-Kleen Corp., a Delaware Corporation, Kenneth W. (Columbia as of 5/3/97
Winger, Paul R. Humphreys, Michael Bragagnolo and Division)
James R. Bullock 3:00-1408-17
INSURANCE NOTIFICATION SENT 05/19/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Jules Brody
William J. Cook Aaron L. Brody
Ness Motley Loadholt Richardson Stull Stull & Brody
& Poole 6 East 4th Street
PO Box 365 New York, NY 10017
Barnwell, SC 29812 212-687-7230
803-224-8800 212-490-2022 (fax)
803-541-9625 (fax)
Joseph H. Weiss
Weiss & Yourman
551 Fifth Avenue
Suite 1600
New York, NY 10176
212-682-3025
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
WALTER E. RYAN, on Behalf of Himself and All Others United States 5/01/00 5/16/00 Holders of To be Determined
Similarly Situated v. Safety-Kleen Corp., a Delaware District Court RES shares
Corporation, Kenneth W. Winger, Paul R. Humphreys, (Columbia Amended as of 5/3/97
Michael Bragagnolo and James R. Bullock Division) Summons Filed
3:00-1343-17 5/10/00
INSURANCE NOTIFICATION SENT 05/19/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Clinton A. Krislov
William J. Cook Michael R. Karnuth
Ness Motley Loadholt Richardson Krislov & Associates, Ltd.
& Poole 222 North LaSalle Street
PO Box 365 Suite 2120
Barnwell, SC 29812 Chicago, IL 60601
803-224-8800 312-606-0500
803-541-9625 (fax) 312-606-0207 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 5.6
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
WALTER E. RYAN, JR., on Behalf of Himself and All Others United States 5/05/00 5/16/00 7/9/97 - To Be Determined
Similarly Situated v. Safety-Kleen Corp., a Delaware District Court 3/6/00
Corporation, Kenneth W. Winger, Paul R. Humphreys, (Columbia
Michael Bragagnolo and James R. Bullock Division)
3:00-1394-17
INSURANCE NOTIFICATION SENT 05/19/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Clinton A. Krislov
William J. Cook Michael R. Karnuth
Ness Motley Loadholt Richardson Krislov & Associates, Ltd.
& Poole 222 North LaSalle Street
PO Box 365 Suite 2120
Barnwell, SC 29812 Chicago, IL 60601
803-224-8800 312-606-0500
803-541-9625 (fax) 312-606-0207 (fax)
- -----------------------------------------------------------------------------------------------------------------------------------
COURT/CASE DATE OF DATE OF CLASS RESPONSE DUE
CASE CAPTION NO. FILING SERVICE PERIOD
KENNETH STEINER, on Behalf of Himself and All Others United States 5/01/00 5/16/00 11/13/97 - To be Determined
Similarly Situated v. Kenneth W. Winger, James R. District Court 4/17/98 for
Bullock, Paul R. Humphreys, Michael Bragagnolo and (Columbia Amended old SK
Safety-Kleen Corp. Division) Summons Filed share-holders
3:00-750-17 5/10/00
INSURANCE NOTIFICATION SENT 05/19/00
PLAINTIFF LOCAL COUNSEL PLAINTIFF LEAD COUNSEL
Terry E. Richardson, Jr. Robert I. Harwood
William J. Cook Daniella Quitt
Ness Motley Loadholt Richardson Frederick W. Gerkens, III
& Poole Wechsler Harwood Halebian &
PO Box 365 Feffer LLP
Barnwell, SC 29812 488 Madison Avenue
803-224-8800 New York, NY 10022
803-541-9625 (fax) 212-935-7400
- -----------------------------------------------------------------------------------------------------------------------------------
AMERICAN HIGH-INCOME TRUST AND STATE STREET RESEARCH United States 7/18/00 On or About 4/17/98- 9/16/00
INCOME TRUST SUING ON BEHALF OF THEMSELVES AND ALL District Court 7/25/00 3/6/00
OTHERS SIMILARLY SITUATED vs. Kenneth W. Winger, Laidlaw for the District
Laidlaw Inc., Pricewaterhousecoopers L.P., TD Securities, of Delaware
Raymond James & Associates, Inc., Arthur Andersen LLP, C.A. No. 00-66
James R. Bullock, Paul R. Humphreys, John W. Rollins, Sr.,
John W. Rollins, Jr., Leslie W. Haworth, Robert W. Luba,
David E. Thomas, Jr., Henry B. Tippie, James L. Wareham,
Grover C. Wrenn, Michael Bragagnolo and Henry H. Taylor
INSURANCE NOTIFICATION SENT
PLAINTIFF LOCAL COUNSEL
Stuart M. Grant
John C. Karris
Grant & Eisenhofer, P. A.
1220 N. Market Street
Suite 500
Wilmington, DE 19801
302-622-7000
- -----------------------------------------------------------------------------------------------------------------------------------
SK's Attorney: David D. Aufhauser, Esquire David Dukes, Esquire
Schedule 5.6
Williams & Connolly, LLP Nelson, Mullins, Riley & Scarborough, LLP
725 Twelfth Stree,t N.W. 1330 Lady Street, P. O. Box 11070
Washington, DC 20005-5901 Columbia, SC 29211
Phone # 202-434-5049 Phone # 803-799-2000
Fax # 202-434-5618 Fax # 803-256-7500
SCHEDULE 5.8 TO
CREDIT AGREEMENT
EXISTING LIENS
Schedule of Pre-Petition Liens:
Debtor Name Secured Party/ Type of File Collateral Description/
Amended or Assigned Jurisdiction Filing File Date Number Comments
Name
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp William Scotsman, Inc. New York - Erie UCC-1 09/29/99 Q55-8311 Leased 40'x 8' mobile
County office, serial #
CT-06062
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp William Scotsman, Inc. New York - Erie UCC-1 11/22/99 Q71-3982 Leased 40'x 8'mobile
County office, serial #CT-07-
144
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bartow), Inc. Toyota Motor Credit Florida- UCC-1 06/24/99 990000142 One truck model, 2
Corporation Secretary of 832 battery model
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Chesapeake Bank of New Jersey - UCC-1 Copy 1960862 L-EZ-GO Workhorse ST
Inc. Maryland Secretary of illegible Sport
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Citicorp Del Lease, South Carolina - UCC-1 11/17/98 981117- (2) Used Yale Model
Inc. Inc. Secretary of 102822A GDPO50 Serial #'s 545835
State & 545836 with 86" x 190
Mast/42" Forks/Sideshift
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Buttonwillow), Xerox Corporation California - UCC-1 10/08/98 98289600 Leased Xerox 5385 with
Inc. Secretary of 55 all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Buttonwillow), The Quinn Company California - UCC-1 12121/98 98362600 1998 Caterpillar
Inc. Secretary of 97 Model815F Compactor
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Chattanooga), Caterpillar Financial Tennessee- UCC-1 02/09/00 300-008 2 Caterpillar lift
Inc. Services Corporation Secretary of 408 trucks and substitu-
State tions, replacements,
additions and
accessions.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Chattanooga), Caterpillar Financial Tennessee - UCC-1 02/09/00 300-008409 1 Caterpillar lift truck
Inc. Services Corporation Secretary of and substitutions,
State replacements, additions
and accessions.
Safety-Kleen ENV Services, Cisco Systems Capital Ohio, Summit UCC-1 03/16/99 21029030 Leased computer network-
Inc. Corporation County ing equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Ohio, Summit UCC-1 08/20/99 21034722 Equipment under Master
Corporation County Agreement to Lease
Equipment and schedules
thereto, and related
rights and property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Pitney Bowes Credit Pennsylvania- UCC-1 11/15/99 30931728 Equipment subject to
Corporation Secretary of 5/18/99 lease between
the Commonwealth debtor and secured party
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Xerox Corporation California - UCC-I 10/08/98 9828960055 Leased Xerox 5385 with
Secretary of all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Massachusetts - UCC- 1 08-31-99 99657394 Equipment leased under
Corporation Norfolk County 1/14/98 Master Lease
between debtor and
secured party, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 11/10/98 981110- Leased computer
Corporation S/S 114422A networking equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 08/19/99 990819- Equipment leased under
Corporation S/S 100837A 1/11/98 Master Lease
between debtor and
secured party, and
related rights
and property
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 09/03/99 990903- Equipment leased under
Corporation S/S 105522A 1/14/98 Master Lease
between debtor and
secured party, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 11/10/98 981110- Leased computer network-
Corporation S/S 114431A- ing equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Texas- UCC-1 08/19/99 99-169602 Equipment leased under
Corporation Secretary of 1/14/98 Master Lease
State between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital New York- UCC-1 00/09/99 07879 Equipment leased under
Corporation Onondaga County 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Xerox Corporation California - UCC-1 10/08/98 9828960055 Leased Xerox 5385 with
Secretary of all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation Delaware- UCC-1 03/28/00 0019349 Leased computer equip-
(Lessor) Secretary of ment and peripheral
State equipment and goods
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 04/09/99 990409- Leased computer equip-
(Lessor) S/S 094504A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 04/28/99 990428- Leased computer equip-
(Lessor) S/S 144031A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 05/25/99 990525- Leased computer equip-
(Lessor) S/S 101127A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NMHG Financial South Carolina, 06/01/99 990601- Leased forklift and
Services, Inc. S/S 111005A related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. The Bank of Nova Scotia South Carolina, 06/04/99 990604- Collateral Account
Trust Company of New S/S 132846A in connection with the
York, as Trustee Company's 5/17/99 high
yield debt offering
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corporation Citicorp Del Lease, South Carolina, 06/16/99 990616- John Deere with backhoe
Inc. S/S 102834A equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NMHG Financial South Carolina, 09/13/99 990913- Leased forklift and
Services, Inc. 102041A related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 03/02/00 000302- Leased computer equip-
(Lessor) S/S 101446A ment and peripheral
equipment and goods
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/02/00 000302- Leased computer equip-
(Lessor) S/S 101528A ment and peripheral
equipment and good
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/06/00 000306- Leased computer equip-
(Lessor) S/S 145235A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/236/00 000323- Leased computer equip-
(Lessor) S/S 103615A ment and peripheral
equipment and good
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/10/00 687526 Two Toyota Cushion Tire
Toyota Lift of Boston Secretary of the Forklifts
Assignee: Toyota Motor Commonwealth
Credit Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/10/00 687527 Three Toyota Cushion
Toyota Lift of Boston Secretary of the Tire Forklifts
Assignee: Toyota Motor Commonwealth
Credit Corp
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/11/00 2015 Three Toyota Cushion
Toyota Lift of Boston North Andover Tire Forklifts
Assignee: Toyota Motor Town Clerk
Credit Corp
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/11/00 2016 Two Toyota Cushion Tire
Toyota Lift of Boston North Andover Forklifts
Assignee: Toyota Motor Town Clerk
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NBD Equipment Finance, Indiana - UCC-i 02/23/96 2035532 Leased Savin Model9013Z
Inc. F/K/A NBD Leasing, Secretary of Copier
Inc. State
Safety-Kleen Corp IBM Credit Corporation Indiana - UCC-1 03/31/00 2315298 Leased computer equip-
(LESSOR) Secretary of ment and peripheral
State equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Newcourt Communications Indiana - UCC-1 07/12/99 2267787 Leased equipment under
Finance Corporation Secretary of Lease No. M512054
(LESSOR) State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Indiana - UCC-1 09/01/99 2277884 Equipment leased under
Corporation Secretary of 1/14/98 Master Lease
State between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Pitney Bowes Credit Pennsylvania - UCC-1 11/15/99 30931728 Equipment subject to
Corporation Secretary of 5/18/99 lease between
the Commonwealth debtor and secured party
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Signet Leasing and Illinois, Kane UCC-1 10/24/95, SBI74466, 209 Ford trucks and
Financial Corporation County and 01/02/96 SB174925 Chevrolet vans and mini
UCC-3 vans
Amendment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NationsBanc Leasing Illinois, Kane UCC-1 06/17/97, SBI78591, 1 Cessna Citation VII
Corporation of North County and 07/01/97, Bl78688, aircraft and 120 leased
Carolina UCC-3 07/25/97, B178842, Chevrolet, GMC, Ford and
Amend- 09/08/97, Bl79110, Pete vans, trucks and
ments 06/03/98 B180497 wagon
and
Assignment
Safety-Kleen Corporation Caterpillar Financial Pennsylvania, UCC-1 04/14/97 97-1926 1 Caterpillar lift truck
Services Corporation Cumberland County and substitutions,
replacements, additions
and accessions
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Bank One Leasing Corp. Kentucky - Boyd UCC-1 06/21/99 9949761 1998/Astro Chevrolet
County Serial No. 1GCDM19WB
19400 Truck No. SK60391
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. General Electric Kentucky - Boyd UCC-1 01/11/00 2054097 1996 Chevrolet Serial
Capital Corporation County No. 1GCDM19W2TB176933
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Bank of America Leasing Kentucky - Boyd UCC-1 04/24/00 2056330 1995/ Astro Chevrolet
& Capital, LLC County Serial No. IGCDM19WlSB
181832
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. First Access/Toyota PA- Luzerne UCC-1 8/12/96 1393-96 Leased Forklift
Motor Credit County
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp IBM Credit Corporation Kentucky - UCC-1 04/05/00 200008235 Leased computer equip-
(Lessor) Fayette County ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp Bank of America Leasing Kentucky - UCC-1 04/20/00 200009702 1996 Ford Aerostar
& Capital, LLC Fayette County Serial No. 1 FTDA1
4U2TZB15183
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 03/24/00 200007129 1999 Peterbilt Serial
Financial Fayette County No. 1NPZLAOXlXD711154
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 03/31/00 200007810 1996 Peterbilt Serial
Financial Fayette County No. 1XPFL79X3TN400716
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 05/16/00 200012042 1993 Ford Serial No.
Financial Fayette County 1FCKE39HlPHB60727
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation SD- S/S UCC-1 4/28/00 001191000 Leased computer equip-
4260 ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation SD- S/S UCC-1 4/7/00 000981100 Leased computer equip-
269 ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital SD- S/S UCC-1 8/31/99 992430901 Equipment leased under
Corporation 600 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. as Newcourt Communications Indiana- Lake UCC-1 07/16/99 99002131 Leased equipment under
Lessee Finance Corporation as County Lease No. M512054
Lessor
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. NationsBank Leasing SC- S/S UCC-1 8/21/98 115702 A exhibit missing from
Corporation search results
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. General Electric SC- S/S UCC-1 12/31/98 130500A specific equipment; copy
Capital Corporation illegible
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Banc One Leasing SC- S/S UCC-1 6/10/99 102447A 42 leased Chevrolet vans
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Banc One Leasing SC- S/S UCC-1 6/10/99 102556A 98 leased Chevrolet
Corporation trucks and vans
Safety-Kleen Services, Inc. Cisco Systems Capital IA- S/S UCC-1 8/31/98 P038798 Equipment leased under
Corporation 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation IA- S/S UCC-1 3/28/98 P093030 Leased computer equip-
ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (GS), Inc. N/A California, - State 04/24/00 0012260433 State tax lien in the
Secretary of tax amount of $4267.08.
State lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen et al in Centry Constructors & Third Judicial Mechanics 5/16/00 Civil No. $132,718.83
respect of the Safety-Kleen Engineers, L.C. District Court lien 000300434CN
(Clive), Inc. facility for Toole County, fore-
State of Utah closure
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. W.E. Carlson IL Notice 4/27/00 N/A $10,800.00
Corporation and
claim of
mechanics'
lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (WT), Inc. Storage USA TN Notice 5/28/00 N/A $256.83;
of
warehouse
men's
lien and
foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Geo. P. Reintjes Co., NJ Const- 6/7/00 N/A 295,458.50
Inc. Inc. uction
lien
claim
Safety-Kleen (Roebuck), Inc. Cannon Roofing Co., SC Notice 6/14/00 N/A $25,630.00
Inc. and
certifi-
cate of
mechanics'
lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (WT), Inc. Holt Plumbing Heating TN: Davidson Notice 6/26/00 $10,500.00
and Cooling, Inc. County and affidavit
Register of of lien
Deeds
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Cornerstone Environ- CA: Contra Costa Claim of 6/14/00 $61,589.45
mental (Randy Fowler) County Recorder Mechan-
ics, lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. TXI Operations, LP TX: Denton County Mechan- 6/15/00 $150,903.88
d/b/a Texas Industries Clerk of Court ics' lien
affidavit
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Encotec), Inc. Western Atlas TX: Harris County TX Prop. 6/23/00 claim of $4,579.00
Intentional d/b/a Baker Code Art. secured by water wells
Atlas 56.021, and appurtenant property
56.023,
56.003
- ------------------------------------------------------------------------------------------------------------------------------------
See below** AIG Insurance Company South Carolina - UCC-1 03/27/00 000327- Security Agreement/
Secretary of 161840A General Indemnity
State Agreement relating to
the secured party's
issuance of construction
surety bonds
- ------------------------------------------------------------------------------------------------------------------------------------
**Dirt Magnet, Inc., Safety-Kleen (Altair), Inc., Safety-Kleen (California), Inc., Safety-Kleen (Chattanooga), Inc., Safety-Kleen
Chemical Services, Inc., Safety-Kleen (Clive), Inc., Safety-Kleen (Crowley), Inc., Safety-Kleen (Custom Transport), Inc.,
Safety-Kleen (Delaware), Inc., Safety-Kleen (Deer Park), Inc., Safety-Kleen (Deer Trail), Inc., [3E Company Environmental,
Ecological and Engineering,] Elgint Corp., Safety-Kleen Envirosystems Company, Safety-Kleen Envirosystems Company of Puerto Rico,
Safety-Kleen (Gloucester), Inc., Safety-Kleen Holdings, Inc., Safety-Kleen Osco Holdings, Inc., Safety-Kleen (LaPorte), Inc., LEMC,
Inc., Safety-Kleen (Los Angeles), Inc.,
Chemclear, Inc. of Los Angeles, Safety-Kleen (Lone and Grassy Mountain), Inc., The Midway Gas and Oil Co., Safety-Kleen
(Minneapolis), Inc., Safety-Kleen (Mt. Pleasant), Inc., Ninth Street Properties, Inc., Safety-Kleen Oil Recovery Co., Safety-Kleen
Oil Services, Inc., Safety-Kleen (Pecatonica), Inc., Petrocon, Inc., Safety-Kleen (Pinewood), Inc., Safety-Kleen (Placquemine),
Inc., Safety-Kleen (PPM), Inc., Safety-Kleen (Puerto Rico), Inc., Safety-Kleen (Roebuck), Inc., Safety-Kleen (Encotec), Inc.,
Safety-Kleen (Rosemount), Inc., Safety-Kleen (San Antonio), Inc., Safety-Kleen (San Jose), Inc., Safety-Kleen (Sawyer), Inc.,
Safety-Kleen Services, Inc., SK Real Estate, Inc., Safety-Kleen (Sussex), Inc., Safety-Kleen (Tipton), Inc., Safety-Kleen (Tulsa),
Inc., USPCI , Inc. of Georgia, Safety-Kleen, White Castle, Inc., Safety-Kleen (Wichita), Inc., Safety-Kleen (WT), Inc., Safety-Kleen
Corp, Inc., Safety-Kleen (NE), Inc., Safety-Kleen (TG), Inc., Safety-Kleen (FS), Inc., Safety-Kleen (TS), Inc.,
SCHEDULE 5.9 TO
CREDIT AGREEMENT
INTELLECTUAL PROPERTY MATTERS
SCHEDULE 5.9
1. Lawsuit styled DOUGLAS K. DIETER v. THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA, ET AL. (including Solvent Services, Inc. "SSI") filed in the
United States District Court for The Eastern District of California
(Case No.: CIV-S-95-686 DFL GGH) relative to patent rights in an
in-situ, steam injection, remedial technology patent claimed by
Plaintiff, a former employee of SSI while a student at the University of
California at Berkeley. Matter settled by settlement agreement and case
dismissed with prejudice October 12, 1999.
2. Lawsuit styled FRANK MANCHAK, JR. v. CHEMICAL WASTE MANAGEMENT, INC. ET
AL. (including Laidlaw Environmental Services, Inc. and Rollins
Environmental Services (TX) Inc.) filed in the U.S. District Court for
the District of Delaware (Case No.: 95-709) relative to patent rights
claimed by the Plaintiff in a stabilization process involving the
combination of sludge and a calcium oxide containing material through a
mixer.
3. Letter to USPCI dated 2/14/97 from Harding, Earley, Follmer & Frailey
representing Nittany Tarp, owner of US Patent No. 4,948,193, claiming
that USPCI is infringing upon the patent, offering opportunity to enter
into licensing agreement. Responded that letter was routed to our
supplier. Supplier's attorney, Laubscher & Laubscher responded by letter
dated 3/26/97 denying infringement, declining offer for license, stated
that matter considered closed.
4. Letter to Laidlaw Environmental Services, Inc. ("LESI") dated April 12,
1996 from McBride Baker & Coles, representing Software Publishers
Association ("SPA") claiming that LESI is utilizing unlicensed copies of
software on personal computers. Various correspondence has ensued.
Latest correspondence from LESI dated 10/9/96 offering to settle claims
on a reasonable basis. No response from SPA attorney.
5. Letter to LESI dated May 1, 1996 from Donahue, Gallagher, Woods & Wood
representing Business Software Alliance, alleging that LESI may have
installed more copies of software programs on its personal computers
than it is authorized to use. Various correspondence has ensued.
Settlement entered into on or about July 30, 1998.
6. Letter to Safety-Kleen Corp. dated June 16, 2000 from Lipman &
Biltekoff, LLP, representing Earthwatch Waste Systems, Inc., alleging
that Safety-Kleen (Deer Trail), Inc. infringes upon at least claims 1-4
of U.S. Patent No. 4,624,604 owned by Environmental Design, Inc., a
subsidiary of Earthwatch Waste Systems, Inc. Safet-Kleen denied
infringement and notied Earthwatch of bankruptcy stay by letter dated
July 13, 2000.
7. Administrative Proceeding pending in the Trademark office of Brazil.
Safety-Kleen filed an opposition against the registration of Brazilian
Trademark Application Serial No. 821633252 for the mark Safety-Clean,
filed by Saimatec Trading LTDA. The Opposition was filed in March 2000.
8. Administrative Proceeding pending in the Trademark office of Japan.
Safety-Kleen filed an opposition against the registration of Japanese
Trademark Application Serial No. 43337635 for the mark Safety & Clean
with Device. This application was filed by Gatsutekku Service Co., Ltd.
The opposition was filed March 27, 2000 and was assigned Opposition No.
2000-90262-1.
9. Administrative Proceeding pending in the Trademark office of Lebanon.
Safety-Kleen filed a Cancellation of the registration of the trademark
Safety Kleen that was filed by Youssef Namer Mansour Trading of Beirut,
Lebanon. This applciation was filed on November 6, 1998 for insecticides
and cleaning services in general.
SCHEDULE 5.15 TO
CREDIT AGREEMENT
AFFILIATES
CORPORATE ORGANIZATIONAL STRUCTURE
SAFETY-KLEEN CORP. - - NYSE: (SK)
THE FOLLOWING LIST SETS FORTH THE SUBSIDIARIES OF SAFETY-KLEEN CORP. AS OF MARCH 13, 2000. PARENT
SUBSIDIARY RELATIONS ARE INDICATED BY INDENTATIONS. UNLESS OTHERWISE INDICATED, 100% OF THE VOTING
SECURITIES OF EACH SUBSIDIARY IS OWNED BY THE INDICATED PARENT OF SUCH SUBSIDIARY.
- ------------------------------------------------------------------------------------ --------------
NAME OF CORPORATION STATE OF INCORPORATION
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN CORP. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SERVICES, INC. Delaware
- ------- -------------------------------------------------------------------------------------------
SAFETY-KLEEN (CONSULTING), INC. (7.8635%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LONE AND GRASSY MOUNTAIN), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TULSA), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SAN ANTONIO), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WICHITA), INC. Kansas
- ---------------------------------------------------------------------------------------------------
USPCI OF MISSISSIPPI, INC. (50%) Mississippi
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DELAWARE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SK SERVICES (EAST), L.C. Utah
- ---------------------------------------------------------------------------------------------------
SK SERVICES, L.C. Utah
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ROSEMOUNT), INC. Minnesota
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SAWYER), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PPM), INC. Georgia
- ---------------------------------------------------------------------------------------------------
NINTH STREET PROPERTIES, INC. Missouri
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SAN JOSE), INC. California
- ---------------------------------------------------------------------------------------------------
CHEMCLEAR, INC. OF LOS ANGELES Delaware
- ---------------------------------------------------------------------------------------------------
USPCI, INC. OF GEORGIA Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN HOLDINGS, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WESTMORLAND), INC. (50%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BUTTONWILLOW), INC. (23%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (NE), INC. New Hampshire
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CROWLEY), INC. Louisiana
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LAPORTE), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TG), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ROEBUCK), INC. South Carolina
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TS), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (COLFAX), INC. Delaware
- ---------------------------------------------------------------------------------------------------
GSX CHEMICAL SERVICES OF OHIO, INC. Ohio
- ---------------------------------------------------------------------------------------------------
LEMC, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN CHEMICAL SERVICES, INC. Massachusetts
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ALTAIR), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (FS), INC. (13%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BDT), INC. New York
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (FS), INC. (87%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (GS), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CLIVE), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WT), INC. Ohio
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN OSCO HOLDINGS, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (NASHVILLE), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
OSCO TREATMENT SYSTEMS OF MISSISSIPPI, INC. (50%) Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BARTOW), INC. Florida
- ---------------------------------------------------------------------------------------------------
Page 1
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CALIFORNIA), INC. California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BUTTONWILLOW), INC. (77%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WESTMORLAND), INC. (50%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CHATTANOOGA), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PECATONICA), INC. Illinois
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PINEWOOD), INC. South Carolina
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WHITE CASTLE), INC. Colorado
- ---------------------------------------------------------------------------------------------------
LAIDLAW ENVIRONMENTAL SERVICES DE MEXICO, S.A. DE C.V. Mexico
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PUERTO RICO), INC. Puerto Rico
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BRIDGEPORT), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DEER PARK), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BATON ROUGE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PLAQUEMINE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CUSTOM TRANSPORT), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LOS ANGELES), INC. California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TIPTON), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (GLOUCESTER), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DEER TRAIL), INC. Colorado
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (MT. PLEASANT), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (MINNEAPOLIS), INC. Minnesota
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ARAGONITE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SUSSEX), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ENCOTEC), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SYSTEMS, INC. Wisconsin
- ---------------------------------------------------------------------------------------------------
ECOGARD, INC. Delaware
- ---------------------------------------------------------------------------------------------------
CURBSIDE, INC. (49%) California
- ---------------------------------------------------------------------------------------------------
SK EUROPE, INC. Nevada
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN EUROPE LIMITED (44%) United Kingdom
- ---------------------------------------------------------------------------------------------------
DIRT MAGNET, INC. Colorado
- ---------------------------------------------------------------------------------------------------
THE MIDWAY GAS AND OIL CO. Colorado
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN CANADA INC. (1) New Brunswick
- ---------------------------------------------------------------------------------------------------
RYAN & PATRICK HOLDINGS INC. Ontario
- ---------------------------------------------------------------------------------------------------
ARDEE SOLVENT INC. Ontario
- ---------------------------------------------------------------------------------------------------
ARDEE RECYCLING INC. Ontario
- ---------------------------------------------------------------------------------------------------
ARDEE OIL INC. Ontario
- ---------------------------------------------------------------------------------------------------
ENVIRONNEMENT SERVICES ET MACHINERIE E.S.M. INC. Quebec
- ---------------------------------------------------------------------------------------------------
ELGINT CORP. Nevada
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN ENVIROSYSTEMS COMPANY California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN ENVIROSYSTEMS COMPANY OF PUERTO RICO, INC. Indiana
- ---------------------------------------------------------------------------------------------------
PETROCON, INC. Delaware
- ---------------------------------------------------------------------------------------------------
PHILLIPS ACQUISITION CORP. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CONSULTING), INC. (78.6349%) Delaware
- ---------------------------------------------------------------------------------------------------
SK REAL ESTATE INC. Illinois
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN INTERNATIONAL, INC. Delaware
- ---------------------------------------------------------------------------------- ----------------
SAFETY-KLEEN OIL RECOVERY CO. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN OIL SERVICES, INC. Delaware
- ---------------------------------------------------------------------------------------------------
(1) 3095-7146 Quebec Inc. holds 711,199 Class Z shares (however, they are physically held by
Safety-Kleen Canada Inc. and Safety-Kleen Systems, Inc. as collateral for payment of outstanding
loans).
Page 2
- ----------------------------------------------------------------------------------------------------
THE SOLVENTS RECOVERY SERVICE OF NEW JERSEY, INC. New Jersey
- ---------------------------------------------------------------------------------------------------
3E COMPANY ENVIRONMENTAL, ECOLOGICAL AND ENGINEERING (75.8%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN LTD. New Brunswick
- -------------------------------------------------------------------------------------- ------------
510127 N.B. INC. New Brunswick
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SERVICES (QUEBEC) LTD. Quebec
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SERVICES (MERCIER) LTD. Quebec
- ---------------------------------------------------------------------------------------------------
SK D'INCINERATION INC. Quebec
- ---------------------------------------------------------------------------------------------------
Page 3
SCHEDULE 5.17
ENVIRONMENTAL MATTERS
PRODUCTS LIABILITY CASES
From time to time, one or more of the Loan Parties is named as a
defendant in various lawsuits arising in the ordinary course of business
including proceedings wherein persons claim injury resulting from the use of the
Loan Party's parts cleaner equipment and/or cleaning products, other matters
involving personal injury and property damage claims and employment-related
claims. There are presently 48 such cases pending against the Loan Parties in
various jurisdictions (29 in California) which pose possible uninsured
liabilities for the Loan Parties.
CERCLA CASES
In the United States, CERCLA imposes financial liability on persons who
are responsible for the release of hazardous substances into the environment.
Present and past owner and operators of sites which release hazardous
substances, as well as generators and transporters of the waste material, are
jointly and severally liable for remediation costs and environmental damage.
Loan Parties have been notified that one or more of them is a potentially
responsible party in connection with approximately 50 locations in its hazardous
waste management and other businesses. The Loan Parties continually review their
status with respect to each location and the extent of their alleged
contribution to the volume of waste at the location, the available evidence
connecting the Loan Party to that location, and the numbers and financial
soundness of other potentially responsible parties at the location.
SAFETY-KLEEN (PINEWOOD), INC.
COMPLIANCE AND LEGAL PROCEEDINGS
A Loan Party, Safety-Kleen (Pinewood), Inc. ("Pinewood"), owns and
operates a hazardous waste landfill near the Town of Pinewood in Sumter County,
South Carolina. In January 2000, the South Carolina Court of Appeals issued a
decision which if it stands, presents negative consequences with respect to
financial assurance requirements and capacity for the facility.
FINANCIAL ASSURANCE
South Carolina law requires that hazardous waste facilities provide
evidence of financial assurance for potential environmental cleanup and
restoration in form and amount to be determined by the South Carolina Department
of Health and Environmental
Control ("DHEC"). In its order granting a Part B Permit for the Facility dated
May 19, 1994, the Board of DHEC (the "Board") decided that over a ten year
period Pinewood must establish a cash funded trust (GSX Contribution Fund) in
the amount of $133 million, adjusted for inflation, as financial assurance for
potential environment cleanup and restoration. In August 1994, Pinewood paid
approximately $14 million cash into the GSX Contribution Fund as a first
installment. The ash funded trust now stands at approximately $19 million.
Pinewood appealed to the South Carolina Circuit Court contesting the legality of
the Board's determination.
Thereafter, DHEC promulgated, and in June 1995 the South Carolina
Legislature approved, regulations governing financial assurance for
environmental cleanup and restoration giving owner/operators of hazardous waste
facilities the right to choose form among six options for providing financial
assurance. The options include insurance, a bond, a letter of credit, a cash
trust fund and a corporate guaranty with a financial test.
Under authority of the new regulations, Pinewood currently provides
financial assurance for potential environmental cleanup and restoration composed
of a combination of the existing State Permitted Sites Fund (this is a state of
South Carolina fund created by statute and funded by hazardous waste disposal
taxes at Pinewood) in the amount of approximately $9 million and the balance of
a total package of over $140 million by way of insurance policies. Pinewood has
left in place the GSX Contribution Fund in the amount of approximately $19
million. Parties opposing the facility appealed the validity of the regulations
to the South Carolina Circuit Court.
CAPACITY
In its May 19, 1994 Order, the DHEC Board established Pinewood's
hazardous waste capacity at 2,250 acre feet and determined that all waste
disposal (both hazardous and non-hazardous) would count against the capacity.
However, due to what the Board viewed as past confusion as to whether
non-hazardous should count against capacity at the facility, non-hazardous was
only counted prospectively (i.e. from the Board Order forward). At current
volumes, the Board Order gave the facility approximately 10 years of remaining
capacity from the date of the Order (approximately four years remaining at this
time). Pinewood and opposition parties appealed the Board determination of
capacity to the South Carolina Circuit Court.
COURT DECISIONS
A decision was issued by the Circuit Court on August 19, 1997 holding:
1. The regulations legally valid and applicable to financial assurance
requirements of the Pinewood landfill; and
2. Upholding the Board's decision as to capacity.
Pinewood and opposing parties appealed the decision to the South Carolina Court
of Appeals.
On January 17, 2000, the Court of Appeals issued its decision
declaring:
1. The regulations invalid due to insufficient public notice during the
promulgation procedure and ordering Pinewood to immediately comply
with the cash financial assurance requirements of the May 19, 1994
DHEC Board Order (this would require a present cash payment of
approximately $70 million).
2. That non-hazardous and hazardous waste counts against Pinewood
capacity from the beginning of waste disposal. The practical effect of
the decision would render Pinewood at 500 acre feet over its permitted
capacity at this time, notwithstanding the fact that under the DHEC
Board Order, Pinewood was prohibited from seeking additional capacity
until it was within three years of exhaustion of presently permitted
capacity, (Pinewood had at least four years remaining capacity at the
time of the decision).
On May 4, 2000, Pinewood petitioned the South Carolina Supreme Court
for a writ of certiorari from the state Court of Appeals decision.
On June 9, 2000 (on the same day but after Pinewood filed its petition
for bankruptcy protection in the United States District Court for the District
of Delaware), DHEC issued an Emergency Order finding that Frontier Insurance
Company - which is the issuer of bonds used to provide for Pinewood's closure
cost, post-closure cost, and third party liability financial assurance - no
longer meets regulatory standards for bond issuers. Based on this finding, DHEC
ordered that Pinewood cease accepting waste for disposal by August 28, 2000,
unless it could provide acceptable alternative financial assurance by June 27,
2000.
On June 13, 2000, the South Carolina Supreme Court denied Pinewood's
petition for a writ of certiorari and the decision of the Court of Appeals
became final.
On June 14, 2000, DHEC sent notice by letter to the Pinewood Facility
directing that Pinewood cease accepting waste for disposal in 30 days - by July
14, 2000 - and submit a closure plan. DHEC based this directive on the
then-final decision of the Court of Appeals that all non-hazardous waste
disposed at Pinewood should be counted against Pinewood's hazardous waste
capacity limit and DHEC's resulting conclusion that there is no remaining
permitted capacity at Pinewood.
On June 22, 2000, DHEC sent notice by letter to Pinewood that under the
Court of Appeals decision, financial assurance regulations for cleanup and/or
environmental impairment restoration at hazardous waste treatment, storage, and
disposal facilities were vacated and, therefore, this financial assurance for
Pinewood must be provided in
accordance with the DHEC Board Order dated May 19, 1994. The June 22, 2000
letter further directed that within 15 days Pinewood provide DHEC with
information on how Pinewood would comply with the May 19, 1994 DHEC Board Order
including payment into the GSX Contribution Fund. As of May 31, 2000, the GSX
Contribution Fund contained $18,748,552.05, which means that under the June 22,
2000 DHEC letter Pinewood would be required to currently pay approximately $68
million into the GSX Contribution Fund, as well as make payments of
approximately $14 million each year for the next four years to reach the full
funding requirement.
On July 7, 2000, Pinewood filed a legal action in the United States
District for the District of Delaware against the State of South Carolina, DHEC,
DHEC Board Chairman (Bradford W. Wyche) and DHEC Commissioner (Douglas Bryant)
under the caption: In Re: Safety-Kleen Corp., et al., Debtor-Chapter 11 Cases,
Case No. 00-2303 Jointly Administered - Adversary Proceeding No. A-00-698, C.A.
No. 00-637. In this action Pinewood seeks to stay and/or enjoin DHEC and the
State of South Carolina from enforcement of the previously-described directives
to Pinewood set forth in the June 9, 2000 DHEC Emergency Order, the June 14,
2000 DHEC letter to Pinewood, and the June 22, 2000 DHEC letter to Pinewood upon
the grounds that the actions of DHEC are invalid under various provisions of the
United States Constitution and/or violate the automatic stay provision of the
United States Bankruptcy Code and/or should be enjoined under the equitable
powers of the Bankruptcy Court. As an alternative cause of action, Pinewood
demanded that it be compensated for the taking of its property without just
compensation under provisions of the Constitutions of the United States and the
State of South Carolina.
On July 10, 2000, the United States District Court for the District of
Delaware issued an Order restraining DHEC and the State of South Carolina from
enforcing its anticipated closure of the Pinewood facility pursuant to the June
14, 2000 DHEC letter. On July 12, 2000 the United States District Court for the
District of Delaware issued an Order transferring the case to the United States
District Court for the District of South Carolina and ordering that the Order of
July 10, 2000 remain in full force and effect pending a ruling from the United
States District Court for the District of South Carolina on Pinewood's request
for a preliminary injunction against DHEC and the State of South Carolina. The
South Carolina Federal District Court will hear Pinewood's Motion for a
Preliminary Injunction on August 22, 2000.
FINANCIAL ASSURANCE
FRONTIER INSURANCE COMPANY
The Loan Parties have learned that Frontier Insurance Company was
removed from the Department of the Treasury's listing of approved sureties
(Department Circular 570) on June 1, 2000. Consequently, frontier Insurance
Company is no longer approved to issue surety bonds for closure, post closure
and third-party financial assurance. Currently, approximately 50% (approximately
$279 million in coverage) of the combined Loan Parties' financial assurance
surety bonds are with Frontier Insurance Company.
The Loan Parties are working closely with Marsh and McLennan Companies to obtain
new financial assurance surety bonds with sureties approved by the Department of
the Treasury. The Loan Parties are also working closely with the U.S. EPA and a
number of state regulatory agencies to obtain an extension of time for replacing
the Frontier coverages. It is not certain that the Loan Parties will be able to
obtain new financial assurance instruments to replace the Frontier coverages. If
the Loan Parties are unable to replace the Frontier coverages within the
allowable time frame (60 days in most cases unless an extension of time is
obtained), many of the Loan Parties may be in violation of their operating
Permits which could subject the Loan Parties to enforcement sanctions including
possible cessation of operation pending replacement of the financial assurance
coverage.
SCHEDULE 8.2(b) TO
CREDIT AGREEMENT
EXISTING INDEBTEDNESS
Section 8.2b
Schedule of Existing Indebtedness
June 9, 2000
Debt Principal Legal
Obligation Amount Entity
- ----------------------------------------------------- ----------- ---------------------------
Bank Debt
- ---------
Tranche A 351,750,000 Safety-Kleen Services, Inc.
Amended and Restated Credit Facility Dated 4/3/98
Tranche B 393,000,000 Safety-Kleen Services, Inc.
Amended and Restated Credit Facility Dated 4/3/98
Tranche C 393,000,000 Safety-Kleen Services, Inc.
Amended and Restated Credit Facility Dated 4/3/98
Revolver 340,000,000 Safety-Kleen Services, Inc.
Amended and Restated Credit Facility Dated 4/3/98
Canadian CDN$ 71,892,450 Safety-Kleen Ltd.
Amended and Restated Credit Facility Dated 4/3/98
High Yield
- ----------
Services High Yield 325,000,000 Safety-Kleen Services, Inc
9.25% Senior Sub. Notes Due 2008
Corp. High Yield 225,000,000 Safety-Kleen Corp.
9.25% Senior Notes Due 2009
Third Party
- -----------
Citibank ISDA 32,289,452 Safety-Kleen Services, Inc
Prime Note dated 3/17/00
Toronto Dominion ISDA 37,171,237 Safety-Kleen Services, Inc
Prime Note dated 3/16/00
Elgin Line 6,237,575 Safety-Kleen Systems, Inc.
Demand Note dated 3/14/00
Toronto Dominion Overdraft CDN$ 25,236,038 Safety-Kleen Ltd.
Canadian Operating Line
Westinghouse Note 60,000,000 Safety-Kleen Corp.
Westinghouse Promissory Note dated 5/15/97
RACT Note 1,943,260 Safety-Kleen Services, Inc
Ract, Inc. Promissory Note due 3/19/01
Semnani Note (USPCI - Grassy/Grayback) 58,182 Safety-Kleen (Lone & Grassy Mtn.), Inc.
Note due 4/15/01
Davis Note (LLE - Bryson) 44,202 Safety-Kleen (TG), Inc.
Note due 3/01/01
Toyota Motor Credit 522,443 Safety-Kleen Systems, Inc.
Forklift Capital Leases
GE Capital Aircraft 8,174,735 Safety-Kleen Systems, Inc.
Lease agreement dated 12/10/98
Miscellaneous 84,065
Industrial Revenue Bonds
- ------------------------
Aragonite 45,700,000 Safety-Kleen Corp.
Tooele County, Utah Due 7/01/27
California Polution Control 19,500,000 Safety-Kleen Corp.
Cal. Poll. Cont. Financing Auth. Due 7/01/07
Clive 10,000,000 Safety-Kleen (Clive), Inc.
Tooele County, Utah USPCI Due 8/10/10
7/28/00 Page 1
Osco 15,700,000 Safety-Kleen (Nashville), Inc.
Nashville and Davidson County Due 5/01/03
7/28/00 Page 2
SCHEDULE 8.3(f) TO
CREDIT AGREEMENT
EXISTING LIENS
Schedule of Pre-Petition Liens:
Debtor Name Secured Party/ Type of File Collateral Description/
Amended or Assigned Jurisdiction Filing File Date Number Comments
Name
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp William Scotsman, Inc. New York - Erie UCC-1 09/29/99 Q55-8311 Leased 40'x 8' mobile
County office, serial #
CT-06062
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp William Scotsman, Inc. New York - Erie UCC-1 11/22/99 Q71-3982 Leased 40'x 8'mobile
County office, serial #CT-07-
144
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bartow), Inc. Toyota Motor Credit Florida- UCC-1 06/24/99 990000142 One truck model, 2
Corporation Secretary of 832 battery model
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Chesapeake Bank of New Jersey - UCC-1 Copy 1960862 L-EZ-GO Workhorse ST
Inc. Maryland Secretary of illegible Sport
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Citicorp Del Lease, South Carolina - UCC-1 11/17/98 981117- (2) Used Yale Model
Inc. Inc. Secretary of 102822A GDPO50 Serial #'s 545835
State & 545836 with 86" x 190
Mast/42" Forks/Sideshift
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Buttonwillow), Xerox Corporation California - UCC-1 10/08/98 98289600 Leased Xerox 5385 with
Inc. Secretary of 55 all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Buttonwillow), The Quinn Company California - UCC-1 12121/98 98362600 1998 Caterpillar
Inc. Secretary of 97 Model815F Compactor
State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Chattanooga), Caterpillar Financial Tennessee- UCC-1 02/09/00 300-008 2 Caterpillar lift
Inc. Services Corporation Secretary of 408 trucks and substitu-
State tions, replacements,
additions and
accessions.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Chattanooga), Caterpillar Financial Tennessee - UCC-1 02/09/00 300-008409 1 Caterpillar lift truck
Inc. Services Corporation Secretary of and substitutions,
State replacements, additions
and accessions.
Safety-Kleen ENV Services, Cisco Systems Capital Ohio, Summit UCC-1 03/16/99 21029030 Leased computer network-
Inc. Corporation County ing equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Ohio, Summit UCC-1 08/20/99 21034722 Equipment under Master
Corporation County Agreement to Lease
Equipment and schedules
thereto, and related
rights and property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Pitney Bowes Credit Pennsylvania- UCC-1 11/15/99 30931728 Equipment subject to
Corporation Secretary of 5/18/99 lease between
the Commonwealth debtor and secured party
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Xerox Corporation California - UCC-I 10/08/98 9828960055 Leased Xerox 5385 with
Secretary of all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Massachusetts - UCC- 1 08-31-99 99657394 Equipment leased under
Corporation Norfolk County 1/14/98 Master Lease
between debtor and
secured party, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 11/10/98 981110- Leased computer
Corporation S/S 11443 1 A networking equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 08/19/99 990819- Equipment leased under
Corporation S/S 100837A 1/11/98 Master Lease
between debtor and
secured party, and
related rights
and property
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 09/03/99 990903- Equipment leased under
Corporation S/S 105522A 1/14/98 Master Lease
between debtor and
secured party, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital South Carolina, UCC-1 11/10/98 981110- Leased computer network-
Corporation S/S 114422A ing equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Texas- UCC-1 08/19/99 99-169602 Equipment leased under
Corporation Secretary of 1/14/98 Master Lease
State between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital New York- UCC-1 00/09/99 07879 Equipment leased under
Corporation Onondaga County 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Xerox Corporation California - UCC-1 10/08/98 9828960055 Leased Xerox 5385 with
Secretary of all parts, attachments,
State additions, replacements
and repairs
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation Delaware- UCC-1 03/28/00 0019349 Leased computer equip-
(Lessor) Secretary of ment and peripheral
State equipment and goods
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 04/09/99 990409- Leased computer equip-
(Lessor) S/S 094504A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 04/28/99 990428- Leased computer equip-
(Lessor) S/S 144031A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 05/25/99 990525- Leased computer equip-
(Lessor) S/S 101127A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NMHG Financial South Carolina, 06/01/99 990601- Leased forklift and
Services, Inc. S/S 111005A related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. The Bank of Nova Scotia South Carolina, 06/04/99 990604- Collateral Account
Trust Company of New S/S 132846A in connection with the
York, as Trustee Company's 5/17/99 high
yield debt offering
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corporation Citicorp Del Lease, South Carolina, 06/16/99 990616- John Deere with backhoe
Inc. S/S 102834A equipment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NMHG Financial South Carolina, 09/13/99 990913- Leased forklift and
Services, Inc. 102041A related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, 03/02/00 000302- Leased computer equip-
(Lessor) S/S 101446A ment and peripheral
equipment and goods
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/02/00 000302- Leased computer equip-
(Lessor) S/S 101528A ment and peripheral
equipment and good
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/06/00 000306- Leased computer equip-
(Lessor) S/S 145235A ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. (Lessee) IBM Credit Corporation South Carolina, UCC-1 03/236/00 000323- Leased computer equip-
(Lessor) S/S 103615A ment and peripheral
equipment and good
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/10/00 687526 Two Toyota Cushion Tire
Toyota Lift of Boston Secretary of the Forklifts
Assignee: Toyota Motor Commonwealth
Credit Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/10/00 687527 Three Toyota Cushion
Toyota Lift of Boston Secretary of the Tire Forklifts
Assignee: Toyota Motor Commonwealth
Credit Corp
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/11/00 2015 Three Toyota Cushion
Toyota Lift of Boston North Andover Tire Forklifts
Assignee: Toyota Motor Town Clerk
Credit Corp
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (NE), Inc. Brodie, Inc. d/b/a Massachusetts - UCC-1 01/11/00 2016 Two Toyota Cushion Tire
Toyota Lift of Boston North Andover Forklifts
Assignee: Toyota Motor Town Clerk
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NBD Equipment Finance, Indiana - UCC-i 02/23/96 2035532 Leased Savin Model9013Z
Inc. F/K/A NBD Leasing, Secretary of Copier
Inc. State
Safety-Kleen Corp IBM Credit Corporation Indiana - UCC-1 03/31/00 2315298 Leased computer equip-
(LESSOR) Secretary of ment and peripheral
State equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Newcourt Communications Indiana - UCC-1 07/12/99 2267787 Leased equipment under
Finance Corporation Secretary of Lease No. M512054
(LESSOR) State
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital Indiana - UCC-1 09/01/99 2277884 Equipment leased under
Corporation Secretary of 1/14/98 Master Lease
State between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Kleen Pitney Bowes Credit Pennsylvania - UCC-1 11/15/99 30931728 Equipment subject to
Corporation Secretary of 5/18/99 lease between
the Commonwealth debtor and secured party
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Signet Leasing and Illinois, Kane UCC-1 10/24/95, SBI74466, 209 Ford trucks and
Financial Corporation County and 01/02/96 SB174925 Chevrolet vans and mini
UCC-3 vans
Amendment
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. NationsBanc Leasing Illinois, Kane UCC-1 06/17/97, SBI78591, 1 Cessna Citation VII
Corporation of North County and 07/01/97, Bl78688, aircraft and 120 leased
Carolina UCC-3 07/25/97, B178842, Chevrolet, GMC, Ford and
Amend- 09/08/97, Bl79110, Pete vans, trucks and
ments 06/03/98 B180497 wagon
and
Assignment
Safety-Kleen Corporation Caterpillar Financial Pennsylvania, UCC-1 04/14/97 97-1926 1 Caterpillar lift truck
Services Corporation Cumberland County and substitutions,
replacements, additions
and accessions
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Bank One Leasing Corp. Kentucky - Boyd UCC-1 06/21/99 9949761 1998/Astro Chevrolet
County Serial No. 1GCDM19WB
19400 Truck No. SK60391
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. General Electric Kentucky-- Boyd UCC-1 01/11/00 2054097 1996 Chevrolet Serial
Capital Corporation County No. 1GCDM19W2TB176933
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Bank of America Leasing Kentucky - Boyd UCC-1 04/24/00 2056330 1995/ Astro Chevrolet
& Capital, LLC County Serial No. IGCDM19WlSB
181832
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. First Access/Toyota PA- Luzerne UCC-1 8/12/96 1393-96 Leased Forklift
Motor Credit County
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp IBM Credit Corporation Kentucky - UCC-1 04/05/00 200008235 Leased computer equip-
(Lessor) Fayette County ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp Bank of America Leasing Kentucky - UCC-1 04/20/00 200009702 1996 Ford Aerostar
& Capital, LLC Fayette County Serial No. 1 FTDA1
4U2TZB15183
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 03/24/00 200007129 1999 Peterbilt Serial
Financial Fayette County No. 1NPZLAOXlXD711154
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 03/31/00 200007810 1996 Peterbilt Serial
Financial Fayette County No. 1XPFL79X3TN400716
Safety-Kleen Systems, Inc. U.S. Bancorp Leasing & Kentucky - UCC-1 05/16/00 200012042 1993 Ford Serial No.
Financial Fayette County 1FCKE39HlPHB60727
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation SD- S/S UCC-1 4/28/00 001191000 Leased computer equip-
4260 ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation SD- S/S UCC-1 4/7/00 000981100 Leased computer equip-
269 ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Services, Inc. Cisco Systems Capital SD- S/S UCC-1 8/31/99 992430901 Equipment leased under
Corporation 600 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. as Newcourt Communications Indiana- Lake UCC-1 07/16/99 99002131 Leased equipment under
Lessee Finance Corporation as County Lease No. M512054
Lessor
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. NationsBank Leasing SC- S/S UCC-1 8/21/98 115702 A exhibit missing from
Corporation search results
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. General Electric SC- S/S UCC-1 12/31/98 130500A specific equipment; copy
Capital Corporation illegible
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Banc One Leasing SC- S/S UCC-1 6/10/99 102447A 42 leased Chevrolet vans
Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. Banc One Leasing SC- S/S UCC-1 6/10/99 102556A 98 leased Chevrolet
Corporation trucks and vans
Safety-Kleen Services, Inc. Cisco Systems Capital IA- S/S UCC-1 8/31/98 P038798 Equipment leased under
Corporation 1/14/98 Master Lease
between debtor and
secured party and
schedules thereto, and
related rights and
property
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. IBM Credit Corporation IA- S/S UCC-1 3/28/98 P093030 Leased computer equip-
ment and peripheral
equipment and goods
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (GS), Inc. N/A California, - State 04/24/00 0012260433 State tax lien in the
Secretary of tax amount of $4267.08.
State lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen et al in Centry Constructors & Third Judicial Mechanics 5/16/00 Civil No. $132,718.83
respect of the Safety-Kleen Engineers, L.C. District Court lien 000300434CN
(Clive), Inc. facility for Toole County, fore-
State of Utah closure
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. W.E. Carlson IL Notice 4/27/00 N/A $10,800.00
Corporation and
claim of
mechanics'
lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (WT), Inc. Storage USA TN Notice 5/28/00 N/A $256.83;
of
warehouse
men's
lien and
foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Bridgeport), Geo. P. Reintjes Co., NJ Const- 6/7/00 N/A 295,458.50
Inc. Inc. uction
lien
claim
Safety-Kleen (Roebuck), Inc. Cannon Roofing Co., SC Notice 6/14/00 N/A $25,630.00
Inc. and
certifi-
cate of
mechanics'
lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (WT), Inc. Holt Plumbing Heating TN: Davidson Notice 6/26/00 $10,500.00
and Cooling, Inc. County Register and
of Deeds affidavit
of lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Corp. Cornerstone Environ- CA: Contra Costa Claim of 6/14/00 $61,589.45
mental (Randy Fowler) County Recorder Mechan-
ics, lien
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen Systems, Inc. TXI Operations, LP TX: Denton County Mechan- 6/15/00 $150,903.88
d/b/a Texas Industries Clerk of Court ics' lien
affidavit
- ------------------------------------------------------------------------------------------------------------------------------------
Safety-Kleen (Encotec), Inc. Western Atlas TX: Harris County TX Prop. 6/23/00 claim of $4,579.00
Intentional d/b/a Baker Code Art. secured by water wells
Atlas 56.021, and appurtenant property
56.023,
56.003
- ------------------------------------------------------------------------------------------------------------------------------------
See below** AIG Insurance Company South Carolina - UCC-1 03/27/00 000327- Security Agreement/
Secretary of 161840A General Indemnity
State Agreement relating to
the secured party's
issuance of construction
surety bonds
- ------------------------------------------------------------------------------------------------------------------------------------
**Dirt Magnet, Inc., Safety-Kleen (Altair), Inc., Safety-Kleen (California), Inc., Safety-Kleen (Chattanooga), Inc., Safety-Kleen
Chemical Services, Inc., Safety-Kleen (Clive), Inc., Safety-Kleen (Crowley), Inc., Safety-Kleen (Custom Transport), Inc.,
Safety-Kleen (Delaware), Inc., Safety-Kleen (Deer Park), Inc., Safety-Kleen (Deer Trail), Inc., [3E Company Environmental,
Ecological and Engineering,] Elgint Corp., Safety-Kleen Envirosystems Company, Safety-Kleen Envirosystems Company of Puerto Rico,
Safety-Kleen (Gloucester), Inc., Safety-Kleen Holdings, Inc., Safety-Kleen Osco Holdings, Inc., Safety-Kleen (LaPorte), Inc., LEMC,
Inc., Safety-Kleen (Los Angeles), Inc.,
Chemclear, Inc. of Los Angeles, Safety-Kleen (Lone and Grassy Mountain), Inc., The Midway Gas and Oil Co., Safety-Kleen
(Minneapolis), Inc., Safety-Kleen (Mt. Pleasant), Inc., Ninth Street Properties, Inc., Safety-Kleen Oil Recovery Co., Safety-Kleen
Oil Services, Inc., Safety-Kleen (Pecatonica), Inc., Petrocon, Inc., Safety-Kleen (Pinewood), Inc., Safety-Kleen (Placquemine),
Inc., Safety-Kleen (PPM), Inc., Safety-Kleen (Puerto Rico), Inc., Safety-Kleen (Roebuck), Inc., Safety-Kleen (Encotec), Inc.,
Safety-Kleen (Rosemount), Inc., Safety-Kleen (San Antonio), Inc., Safety-Kleen (San Jose), Inc., Safety-Kleen (Sawyer), Inc.,
Safety-Kleen Services, Inc., SK Real Estate, Inc., Safety-Kleen (Sussex), Inc., Safety-Kleen (Tipton), Inc., Safety-Kleen (Tulsa),
Inc., USPCI , Inc. of Georgia, Safety-Kleen, White Castle, Inc., Safety-Kleen (Wichita), Inc., Safety-Kleen (WT), Inc., Safety-Kleen
Corp, Inc., Safety-Kleen (NE), Inc., Safety-Kleen (TG), Inc., Safety-Kleen (FS), Inc., Safety-Kleen (TS), Inc.,
SCHEDULE 8.4(a) TO
CREDIT AGREEMENT
EXISTING GUARANTEE OBLIGATIONS
SCHEDULE 8.4(a)
THIRD PARTY
CORPORATE GUARANTEES
1) Guaranty of Safety-Kleen Services, Inc. for the performance of JTM
Industries, Inc. pursuant to the Master Equipment Lease with Cargill
Leasing Corporation: Lease dated 9/18/93; Guaranty dated 1/19/96. Amount:
$1,071,250.
2) Guaranty of Safety-Kleen Services, Inc. for the performance of ECDC
regarding freight transportation by Consolidated Rail Corporation.
Guaranty dated 3/15/96. Amount: up to $1,000,000.
3) Guaranty of Safety-Kleen Corp. for the payment of principal and interest
due under the 1997 Series A Carbon County Solid Waste Disposal Refunding
Revenue Bonds. Guaranty dated 7/1/97. Amount: $20,000,000.
4) Guaranty of Safety-Kleen Services, Inc. for the performance of JTM
Industries, Inc. pursuant to the Master Equipment Lease with General
Electric Capital Corporation; Lease dated 7/1/93; Guaranty dated 8/24/93.
5) Guaranty of Safety-Kleen Corp. for the performance of SK Services (East)
LC pursuant to its Contract No. PCD 233.250 with the Hudson County
Improvement Authority. Guaranty dated 2/97. Amount: up to $11,000,000.
6) Guaranty of Safety-Kleen Services, Inc. for the performance of Hughes
Barge Line pursuant to its Master Lease Agreement with the CIT Group.
Guaranty dated 8/4/98. Amount: $1,800,000.
7) Guaranty of Safety-Kleen Corp. for the performance of Memco Barge Line,
Inc. pursuant to its charter agreement with Hughes Brothers, Inc.
Guarantee dated 2/17/98.
8) Guaranty of Safety-Kleen Services, Inc. for the performance of JTM
Industries, Inc. pursuant to its contract with Union Camp Corporation for
the sale of Marketable By-products. Guaranty dated 3/2/92.
9) Guaranty of Safety-Kleen Services, Inc. for the performance of JTM
Industries, Inc. pursuant to its Master Lease Agreement with Deutsche
Credit Corporation. Lease dated 6/30/94; Amount: 5,069,358.51. (Lease term
was 60 months may have expired.)
10) Guaranty of Safety-Kleen Services, Inc. for the performance of JTM
Industries, Inc. pursuant to its Master Lease Agreement 0543-83 with
General Electric Rail Car Leasing Services Corporation. Lease dated
7/16/93.
CONTROLLED GROUP
CORPORATE GUARANTEES
1) Guaranty of Safety-Kleen Corp. for the performance of Safety-Kleen
Services, Inc. pursuant to its Master Lease Agreement (01-M06360-00) with
COMDISCO, Inc.. Lease dated 7/19/93; Guaranty dated 11/20/98.
2) Guaranty of Safety-Kleen Services, Inc. for the performance of Hydrocarbon
Recyclers, Inc. pursuant to its agreement with Rineco Chemical Industries,
Inc. regarding the transportation, treatment, and disposal of waste.
Guaranty dated 4/18/85.
3) Guaranty of Safety-Kleen Systems, Inc. for the performance of Safety-Kleen
Canada Inc. pursuant to its letter agreement with the Canadian Imperial
Bank of Commerce. Guaranty dated 6/1/90. Amount: up to Cdn$5,000,000.
Schedule 8.4(a)
4) Guaranty of Safety-Kleen Systems, Inc. for the performance of Safety-Kleen
Canada Inc. pursuant to its letter agreement with the Royal Bank of
Canada. Agreement dated 5/30/96; Guaranty dated 5/30/96. Amount: us to
Cdn$6,000,000. 5) Guaranty of Safety-Kleen Systems, Inc. for the
performance of Safety-Kleen Canada Inc. pursuant to its letter agreement
with the NBD Bank of Canada. Guaranty dated 7/25/95. Amount: up to
Cdn$3,000,000.
6) Guaranty of Safety-Kleen Systems, Inc. for the performance of Safety-Kleen
(UK) Limited pursuant to its letter agreement with the International
Westminster Bank PLC. Guaranty dated 10/28/88. Amount: $5,000,000.
7) Guaranty of Safety-Kleen Systems, Inc. for the performance of Safety-Kleen
Beteiligungs GmbH pursuant to its letter agreement with Deutsche Bank AG.
Amount: DM70,000,000.
8) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Systems, Inc. pursuant to its Aircraft Lease Agreement with
General Electric Capital Corporation. Guaranty dated 12/10/98. Amount:
$7,604,663.89.
9) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Systems, Inc. pursuant to its Equipment Lease Agreement with
General Electric Capital Corporation. Guaranty dated 12/30/98. Amount:
$769,000.
10) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Systems, Inc. pursuant to its Equipment Lease Agreement with
Ameritech Credit Corporation. Guaranty dated 11/24/98. Amount: $8,712,000.
11) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Systems, Inc. pursuant to its Equipment Lease Agreement with
USBankcorp. Leasing and Financial. Guaranty dated 12/28/98. Amount:
$19,977,000.
12) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Systems, Inc. pursuant to its Equipment Lease Agreement with
Banc One Leasing Corporation. Guaranty dated 5/26/99. Amount:
$4,960,436.93.
13) Guaranty of Safety-Kleen Services, Inc. for the performance of
Safety-Kleen Services (Canada) Ltd. pursuant to its Equipment Lease
Agreement with Bank of Nova Scotia. Guaranty dated 5/26/99. Amount:
Cdn$4,033,477.85.
14) Guaranty of Safety-Kleen Corp. fka Laidlaw Environmental Services, Inc.
and certain of its subsidiaries to General Motors Corporation dated on or
about November 30, 1997 guaranteeing performance by Allied Waste Systes of
certain waste management and disposal obligations of Safety-Kleen Corp.
and certain of its present and/or former subsidiaries under a contract
with General Motors Corporation designated Contract Number 4070 as
amended.
LETTERS OF CREDIT
Reliance Insurance Company of Illinois
77 Water Street
New York, NY 1005
Attention: Treasury Department
Holding a Toronto Dominion LOC #1460 for $2,500,000 as indemnification for our
closure & post closure financial assurance program.
Entity: Safety-Kleen Services, Inc. LOC Issued: December 10, 1997
Reliance Insurance Company of Illinois
77 Water Street
New York, NY 1005
Attention: Treasury Department
Holding a Toronto Dominion LOC #1461 for $2,500,000 as indemnification for our
closure & post closure financial assurance program.
Entity: Safety-Kleen Services, Inc. LOC Issued: December 10, 1997
Reliance Insurance Company of Illinois
77 Water Street
New York, NY 1005
Schedule 8.4(a)
Attention: Treasury Department
Holding a Toronto Dominion LOC #1459 for $10,000,000 as indemnification for our
closure & post closure financial assurance program.
Entity: Safety-Kleen Services, Inc. LOC Issued: December 10, 1997
Reliance National Indemnity Company
77 Water Street
New York, NY 1005
Attention: Treasury Department
Holding a Toronto Dominion LOC #1520 for $4,400,000 as indemnification for our
pre-merger auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Corp. LOC Issued: June 10, 1998
Reliance National Indemnity Company
77 Water Street
New York, NY 1005
Attention: Treasury Department
Holding a Toronto Dominion LOC #1565 for $9,600,000 as indemnification for our
pre-merger auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Systems, Inc. LOC Issued: June 10, 1998
Reliance National Indemnity Company
77 Water Street
New York, NY 1005
Attention: Treasury Department
Holding a Toronto Dominion LOC #1521 for $10,000,000 as indemnification for our
pre-merger auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Systems, Inc. LOC Issued: June 10, 1998
National Union Fire Insurance Company of Pittsburgh, PA
80 Pine Street
New York, NY 1005
Attention: Account Services Team
Holding a Toronto Dominion LOC #1566 for $7,040,000 as indemnification for our
pre-merger auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Systems, Inc. LOC Issued: September 30, 1998
Continental Insurance Company,
Continental Casualty Company &
Transcontinental Technical Services
C/O CAN Risk Management Group
CAN Plaza
Chicago, Illinois 60685
Attention: Director Account Services
Holding a Toronto Dominion LOC #1472 for $3,000,000 as indemnification for our
pre-merger auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Services, Inc. LOC Issued: December 10, 1997
Frontier Insurance Company
195 Lake Louise Marie Road
Rock Hill, NY 12701
Holding a Toronto Dominion LOC #1452 for $28,500,000 as indemnification for our
closure & post closure financial assurance program.
Schedule 8.4(a)
Entity: Safety-Kleen Services, Inc. LOC Issued: November 6, 1997
London Guarantee Insurance Company
77 King Street West, Suite 3426
Toronto, Ontario, Canada M5K 1K2
Holding a Toronto Dominion LOC #1020-9854 for CAD$3,300,000 as indemnification
for our closure & post closure financial assurance program.
Entity: Safety-Kleen (Canada) Ltd. LOC Issued: November 20, 1998
Laidlaw Transportation Inc.
3221 North Service Road
Burlington, Ontario, Canada L7R 1H6
Holding a DKB LOC # SDC-034952 for $6,000,000 as indemnification for our merger
auto liability, general liability and workers' compensation claims.
Entity: Safety-Kleen Services, Inc. LOC Issued: December 6, 1999
INDEMNIFICATION/REIMBURSEMENT AGREEMENTS
London Guarantee Insurance Company
77 King Street West,
Suite 3426
Toronto, Ontario, Canada M5K 1K2
Indemnification for our closure, post closure financial assurance program and
other surety bonds.
Entity: Safety-Kleen Corp. Agreement Issued: January 18, 1999
Hartford Fire Insurance Company
C/O Marsh Canada Limited
70 University Avenue,
Suite 800
Toronto, Ontario, Canada M5 London Guarantee Insurance Company
77 King Street West,
Suite 3426
Toronto, Ontario, Canada M5J 2M4
Indemnification for our closure, post closure financial assurance program and
other surety bonds.
Entity: Safety-Kleen Services (Canada) Ltd. Agreement Issued: July 1, 1998
Frontier Insurance Company
195 Lake Louise Marie Road
Rock Hill, NY 12701
Indemnification for our closure, post closure financial assurance program and
other surety bonds.
Entity: Laidlaw Environmental Services, Inc. Agreement Issued: November 21, 1997
Reliance Insurance Company of Illinois
77 Water Street
New York, NY 1005
Attention: Treasury Department
Indemnification for our closure & post closure financial assurance program.
Policies # NTA1632807, NTA1632809, NTA1632808, NTA163208, NTA1632810,
NTA2510948, NTA2511605, NTA2511606, NTA2511637 & NTA 2517504 Entity: Laidlaw
Environmental Services, Inc. Agreement Issued: November 17, 1997
Helmsman Management Services, Inc.
Riverside Office Park
9 Riverside Road
Wesson, MA 02493-2290
Deductible reimbursement of workers' compensation claim payment program for
pre-merger losses. Contract # WP8-64B-004224-027, WP8-64B-004224-026,
WP8-64B-004224-016, WP8-64B-004224-037, WP8-64B-004224-017, WP8-64B-004224-047
Entity: Safety-Kleen Services, Inc. Agreement Issued: August 18, 1999
GAB Robins North America, Inc.
9 Campus Drive, Suite 7
Schedule 8.4(a)
Parsimony, NJ 07054-0316
Deductible reimbursement of claim payment program for pre-merger losses.
Contract # 383100
Entity: Safety-Kleen Corp. Agreement Issued: August 9, 1998
SCHEDULE 8.8 TO
CREDIT AGREEMENT
EXISTING INVESTMENTS
Schedule 8.8
OTHER U.S. INVESTMENTS: CLASS OF STOCK NO. OF SHAREHOLDER
STOCK CERT. SHARES
NO. ISSUED
SK Services (East), L.C. (1) Safety-Kleen (Delaware), Inc.
SK Services, L.C. (2) Safety-Kleen (Delaware), Inc.
3E Company Environmental, Ecological Common 12 151,000 Safety-Kleen Systems, Inc.
and Engineering (3)
13 453,000 Safety-Kleen Systems, Inc.
Curbside, Inc. (4) Common 17 98,000 Safety-Kleen Systems, Inc.
(5)
(6)
(7)
ArmaKleen Partnership Safety-Kleen Services, Inc. (50%
partner)
The Phoenix Project Safety-Kleen Services, Inc. (80%
interest in low level radioactive
waste permit project for Grassy
Mountain Landfill)
NOTES OR LOANS TO NON- PAYEE PRINCIPAL AMOUNT
AFFILIATED COMPANIES OR NON-
EMPLOYEES
Safety-Kleen Services, Inc. Gerry Brossard $7650.00
LEMC, Inc. SKOWF Approx. $1,500,000.00 (mortgage)
LEMC, Inc. Johnny Brown $900,000.00
- ---------------------
(1) There are no certificates issued. Safety-Kleen (Delaware), Inc. has a 100% ownership interest in this
limited liability corporation.
(2) There are no certificates issued. Safety-Kleen (Delaware), Inc. has a 100% ownership interest in this
limited liability corporation.
(3) Safety-Kleen Systems, Inc. has an option to purchase the remaining outstanding shares of 3E in
accordance with a Shareholder's Agreement.
(4) Safety-Kleen Systems, Inc. has an option to purchase the remaining outstanding shares of Curbside in
accordance with the Stock Purchase Agreement made as of June 24, 1997.
(5) USPCI of Mississippi, Inc. has 2000 common shares, certificate number 1R, previously pledged to John
L. Maxey II as Escrow Agent under terms of First Amendment of Shareholder Agreement pursuant to Merger
Merger governing the USPCI of Mississippi, Inc. stock dated January 5, 1996.
(6) Osco Treatment Systems of Mississippi, Inc. has 1,000 common shares, certificate number 13,
previously pledged on 1/5/96 to John L. Maxey II as Escrow Agent under the terms of Shareholder Agreement
governing OSCO Treatment Systems of Mississippi, Inc. stock made 1/5/96.
(7) ECDC Environmental, L.C. was sold to Allied Waste Industries, Inc. on November 30, 1997. Northeastern
Remedial Corporation previously held a Class B Membership Interest in ECDC Environmental, L.C. indicated
by certificate 6-B and a Class A Membership Interest indicated by certificate 2-A.
Page 1
Schedule 8.8
LEMC, Inc. Duane Everett $77,000.00
LEMC, Inc. KC Brown $65,0000.00
Safety-Kleen Systems, Inc. Curbside $1,500,000.00
Safety-Kleen Services, Inc. Hughes Barge Line $1,700,000.00
LLC
Sutton Street Realty Trust
(beneficiary is Safety-Kleen Dizzy Bridge Realty $545,115.54 (8)
Chemical Services, Inc.) Trust
- ----------------------
(8) As of October 23, 1997 (the date of the note extension).
Page 2
================================================================================
AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
made by
SAFETY-KLEEN CORP.,
SAFETY-KLEEN SERVICES, INC.,
and their domestic Subsidiaries
in favor of
TORONTO-DOMINION (TEXAS) INC.,
as General Administrative Agent
Initially Dated as of June 11, 2000
Amended and Restated as of July 19, 2000
================================================================================
093110-0154-08133-A06WFTXW-CMP
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS.........................................................................................2
1.1 Definitions.........................................................................................2
-----------
1.2 Other Definitional Provisions.......................................................................6
-----------------------------
SECTION 2. GUARANTEE.............................................................................................6
2.1 Guarantee...........................................................................................6
---------
2.2 Right of Contribution...............................................................................7
---------------------
2.3 No Subrogation......................................................................................7
--------------
2.4 Amendments, etc. with respect to the Borrower Obligations...........................................7
---------------------------------------------------------
2.5 Guarantee Absolute and Unconditional................................................................8
------------------------------------
2.6 Reinstatement.......................................................................................9
-------------
2.7 Payments............................................................................................9
--------
SECTION 3. GRANT OF SECURITY INTEREST............................................................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................................10
4.1 Representations in Credit Agreement; Holdings Representations......................................10
-------------------------------------------------------------
4.2 Title; No Other Liens..............................................................................11
---------------------
4.3 Priority of Liens..................................................................................11
-----------------
4.4 Jurisdiction of Organization; Chief Executive Office...............................................12
----------------------------------------------------
4.5 Inventory and Equipment............................................................................13
-----------------------
4.6 Farm Products......................................................................................13
-------------
4.7 Investment Property................................................................................13
-------------------
4.8 Receivables........................................................................................13
-----------
4.9 Intellectual Property..............................................................................13
---------------------
SECTION 5. COVENANTS............................................................................................14
5.1 Covenants in Credit Agreement......................................................................14
-----------------------------
5.2 Delivery of Instruments, Certificated Securities and Chattel Paper.................................14
------------------------------------------------------------------
5.3 Maintenance of Insurance...........................................................................14
------------------------
5.4 Payment of Obligations.............................................................................15
----------------------
5.5 Maintenance of Perfected Security Interest; Further Documentation..................................15
-----------------------------------------------------------------
5.6 Changes in Locations, Name, etc....................................................................16
--------------------------------
5.7 Notices............................................................................................16
-------
5.8 Investment Property................................................................................16
-------------------
5.9 Receivables........................................................................................17
-----------
5.10 Intellectual Property.............................................................................17
---------------------
5.11 Special Covenants of Holdings.....................................................................19
-----------------------------
SECTION 6. REMEDIAL PROVISIONS..................................................................................20
6.1 Remedies; Obtaining Collateral Upon Default........................................................20
-------------------------------------------
6.2 Remedies; Disposition of the Collateral............................................................21
---------------------------------------
6.3 Pledged Stock......................................................................................21
-------------
6.4 Application of Proceeds............................................................................22
-----------------------
6.5 Registration Rights................................................................................23
-------------------
ii
SECTION 7. THE GENERAL ADMINISTRATIVE AGENT.....................................................................24
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc........................................24
-----------------------------------------------------------
7.2 Duty of General Administrative Agent...............................................................26
------------------------------------
7.3 Execution of Financing Statements..................................................................26
---------------------------------
7.4 Authority of General Administrative Agent..........................................................26
-----------------------------------------
SECTION 8. MISCELLANEOUS........................................................................................27
8.1 Amendments in Writing..............................................................................27
---------------------
8.2 Notices............................................................................................27
-------
8.3 No Waiver by Course of Conduct; Cumulative Remedies................................................27
---------------------------------------------------
8.4 Enforcement Expenses; Indemnification..............................................................27
-------------------------------------
8.5 Successors and Assigns.............................................................................28
----------------------
8.6 Set-Off............................................................................................28
-------
8.7 Counterparts.......................................................................................28
------------
8.8 Severability.......................................................................................28
------------
8.9 Section Headings...................................................................................29
----------------
8.10 Integration.......................................................................................29
-----------
8.11 GOVERNING LAW.....................................................................................29
-------------
8.12 Submission To Jurisdiction; Waivers...............................................................29
-----------------------------------
8.13 Acknowledgments...................................................................................30
---------------
8.14 Absence of Prejudice with Respect to Matters Before the Bankruptcy Court..........................30
------------------------------------------------------------------------
8.15 WAIVER OF JURY TRIAL..............................................................................30
--------------------
SCHEDULES
Schedule 1 Investment Property
Schedule 2 Jurisdictions of Organization and Chief Executive Offices
Schedule 3 Inventory and Equipment Locations
Schedule 4 Intellectual Property
Schedule 5 Prepetition Real Estate Collateral
AMENDED AND RESTATED
GUARANTEE AND COLLATERAL AGREEMENT
AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT,
initially dated as of June 11, 2000, amended and restated as of as of July 19,
2000, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "GRANTORS"), in favor of
TORONTO DOMINION (TEXAS), INC., as General Administrative Agent (in such
capacity, the "GENERAL ADMINISTRATIVE AGENT") for the banks and other financial
institutions or entities (the "LENDERS") from time to time parties to the Debtor
in Possession Credit Agreement, initially dated as of June 11, 2000, amended and
restated as of as of July 19, 2000 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among SAFETY-KLEEN
SERVICES, INC. (the "BORROWER"), THE TORONTO DOMINION BANK, HOUSTON AGENCY, as
letter of credit issuing bank, the Lenders, the General Administrative Agent,
and THE CIT GROUP/BUSINESS CREDIT, INC. as collateral agent and underwriter.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on June 9, 2000 (the "PETITION DATE"), the Borrower, its sole
shareholder, Safety-Kleen Corp., a Delaware corporation ("HOLDINGS"), and the
subsidiaries of the Borrower incorporated under the laws of one of the United
States of America (the "SUBSIDIARIES"; collectively with Holdings, the
"Guarantors") filed voluntary petitions under Section 301 of the Bankruptcy Code
with the United States Bankruptcy Court for the District of Delaware (the
"BANKRUPTCY COURT") initiating their Chapter 11 cases (the "CASES") and have
continued in the possession of their assets and in the management of their
business pursuant to Sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each other Grantor;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective Extensions of Credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the General Administrative Agent for the ratable benefit of the Lenders;
2
NOW, THEREFORE, in consideration of the premises and to induce the
General Administrative Agent and the Lenders to enter into the Credit Agreement
and to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby agrees with the General Administrative
Agent, for the ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms are used herein as defined in the
New York UCC: Accounts, Certificated Security, Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"AGREEMENT": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Loans, Reimbursement Obligations and all
other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and the Reimbursement
Obligations) to the General Administrative Agent or any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, this Agreement, the other Loan
Documents, any Letter of Credit, or any other document made, delivered or
given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, guarantee obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the General
Administrative Agent that are required to be paid by the Borrower pursuant
to the terms of any of the foregoing agreements).
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
General Administrative Agent as provided in Section 6.1.
"COPYRIGHT LICENSES": all written agreements naming any Grantor as
licensor or licensee (including, without limitation, those listed in
SCHEDULE 4 to be delivered on or prior to the date of entry of the Final
Order), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"COPYRIGHTS": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and
3
whether published or unpublished (including, without limitation, those
listed in SCHEDULE 4), all registrations and recordings thereof, and all
applications in connection therewith, including, without limitation, all
registrations, recordings and applications in the United States Copyright
Office, and (ii) the right to obtain all renewals thereof.
"DEPOSIT ACCOUNT": as defined in the New York UCC and, in any event,
including, without limitation, any demand, time, savings, passbook or like
account maintained with a depositary institution and all money on deposit
therein.
"FOREIGN SUBSIDIARY": any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
"FOREIGN SUBSIDIARY VOTING STOCK": the voting Capital Stock of any
Foreign Subsidiary.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the New York UCC and, in any event, including,
without limitation, whether or not encompassed by the definition of
"general intangibles" in the New York UCC with respect to any Grantor, all
causes of action (other than causes of action that may be commenced under
chapter 5 of the Bankruptcy Code), all contracts, agreements, instruments
and indentures in any form (including, without limitation, contracts for
sale of real estate, and insurance contracts excluded from coverage of
Article 9 of the New York UCC), and portions thereof, to which such Grantor
is a party or under which such Grantor has any right, title or interest or
to which such Grantor or any property of such Grantor is subject, as the
same may from time to time be amended, supplemented or otherwise modified,
including, without limitation, (i) all rights of such Grantor to receive
moneys due and to become due to it thereunder or in connection therewith,
(ii) all rights of such Grantor to damages arising thereunder and (iii) all
rights of such Grantor to perform and to exercise all remedies thereunder,
in each case to the extent the terms thereof (after giving effect to any
consent that has been obtained, it being understood that such Grantor is
not obligated to obtain any such consent) do not prohibit the grant by such
Grantor of a security interest pursuant to this Agreement in its right,
title and interest therein without the consent of any other party thereto
and do not give any other party thereto the right to terminate its
obligations thereunder; PROVIDED, that the foregoing limitation shall not
affect, limit, restrict or impair the grant by such Grantor of a security
interest pursuant to this Agreement in any Receivable or any money or other
amounts due or to become due or other right to payment under any such
contract, agreement, instrument or indenture.
"GUARANTOR OBLIGATIONS": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2)
or any other Loan Document to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the General
Administrative
4
Agent or to the Lenders that are required to be paid by such Guarantor
pursuant to the terms of this Agreement or any other Loan Document).
"GUARANTORS": the collective reference to each Grantor other than the
Borrower.
"HOLDINGS": as defined in the recitals to this Agreement.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,
and all rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"INTERCOMPANY NOTE": any promissory note evidencing loans made by any
Grantor to Holdings or any other Grantor.
"INVESTMENT PROPERTY": the collective reference to (i) all "investment
property" as such term is defined in Section 9-115 of the New York UCC
(other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting
"investment property" as so defined, all Pledged Notes and all Pledged
Stock.
"ISSUERS": the collective reference to each issuer of Investment
Property.
"LENDERS": as defined in the preambles to this Agreement and
including, unless the context otherwise requires, each Affiliate of any
Lender that has entered into any Hedging Agreement with the Borrower.
"NEW YORK UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"PATENT LICENSE": all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or sell
any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in SCHEDULE 4 to be delivered
on or prior to the date of entry of the Final Order.
"PATENTS": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without
limitation, any of the foregoing referred to in SCHEDULE 4 to be delivered
on or prior to the date of entry of the Final Order, (ii) all applications
for letters patent of the United States or any other country and all
divisions, continuations and
5
continuations-in-part thereof, including, without limitation, any of the
foregoing referred to in SCHEDULE 4 to be delivered on or prior to the date
of entry of the Final Order, and (iii) all rights to obtain any reissues or
extensions of the foregoing.
"PETITION DATE": as defined in the recitals to this Agreement.
"PLEDGED NOTES": all promissory notes listed on SCHEDULE 1 to be
delivered on or prior to the date of entry of the Final Order, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 1 to
be delivered on or prior to the date of entry of the Final Order, together
with any other shares, stock certificates, options, interests or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect; PROVIDED that in no event shall more than 65% of the total
outstanding Foreign Subsidiary Voting Stock of any Foreign Subsidiary be
included in this defined term.
"PREPETITION REAL ESTATE COLLATERAL": all real property listed on
SCHEDULE 5.
"PROCEEDS": all "proceeds" as such term is defined in Section 9-306(1)
of the New York UCC and, in any event, shall include, without limitation,
all dividends or other income from the Investment Property, collections
thereon or distributions or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"SECURITIES ACT": the Securities Act of 1933, as amended.
"TRADEMARK LICENSE": any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark,
including, without limitation, any of the foregoing referred to in SCHEDULE
4 to be delivered on or prior to the date of entry of the Final Order.
"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or
6
any political subdivision thereof, or otherwise, and all common-law rights
related thereto, including, without limitation, any of the foregoing
referred to in SCHEDULE 4 to be delivered on or prior to the date of entry
of the Final Order, and (ii) the right to obtain all renewals thereof.
"VEHICLES": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any
state and all tires and other appurtenances to any of the foregoing.
1.2 OTHER DEFINITIONAL PROVISIONS (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 GUARANTEE (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the General
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower Obligations.
(b) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from the Borrower
Obligations.
(c) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the General
Administrative Agent or any Lender from the Borrower, any of the Guarantors, any
other guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of
7
the Borrower Obligations), remain liable for the Borrower Obligations up to the
maximum liability of such Guarantor hereunder until the Borrower Obligations are
paid in full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the General Administrative Agent and the Lenders, and each
Guarantor shall remain liable to the General Administrative Agent and the
Lenders for the full amount guaranteed by such Guarantor hereunder.
2.3 NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the General
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the General Administrative Agent or any
Lender against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the General Administrative Agent or any
Lender for the payment of the Borrower Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from the Borrower or
any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the General Administrative Agent and the Lenders by
the Borrower on account of the Borrower Obligations are paid in full, no Letter
of Credit shall be outstanding and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any time
when all of the Borrower Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the General Administrative
Agent and the Lenders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the General
Administrative Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the General Administrative Agent, if required), to be
applied against the Borrower Obligations, whether matured or unmatured, in such
order as the General Administrative Agent may determine.
2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the General Administrative Agent or any Lender may be
rescinded by the General Administrative Agent or such Lender and any of the
Borrower Obligations continued, and the Borrower Obligations, or the liability
of any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the General Administrative Agent
or any Lender, and the Credit Agreement and the other Loan Documents and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the General
Administrative Agent (or the
8
Required Lenders or all Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the General Administrative Agent or any Lender for the payment of
the Borrower Obligations may be sold, exchanged, waived, surrendered or
released. Neither the General Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Borrower Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the General
Administrative Agent or any Lender upon the guarantee contained in this Section
2 or acceptance of the guarantee contained in this Section 2; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Section 2; and all dealings between the
Borrower and any of the Guarantors, on the one hand, and the General
Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower Obligations or
any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the General
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower or any other Person against the
General Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrower for the Borrower Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the General Administrative
Agent or any Lender may, but shall be under no obligation to, make a similar
demand on or otherwise pursue such rights and remedies as it may have against
the Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Borrower Obligations or any right of offset with
respect thereto, and any failure by the General Administrative Agent or any
Lender to make any such demand, to pursue such other rights or remedies or to
collect any payments from the Borrower, any other Guarantor or any other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the General Administrative Agent or any Lender
against any Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
9
2.6 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the General Administrative Agent or
any Lender all as though such payments had not been made.
2.7 PAYMENTS. Each Guarantor hereby guarantees that payments hereunder
will be paid to the General Administrative Agent without set-off or counterclaim
in U.S. Dollars at the office of the General Administrative Agent referred to in
Section 11.2 of the Credit Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the General
Administrative Agent, and hereby grants to the General Administrative Agent, for
the ratable benefit of the Lenders, a mortgage on and security interest in, all
of the following property now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "COLLATERAL"), as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of such Grantor's
Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment (other than Equipment subject to Liens permitted by
Section 8.3(g) of the Credit Agreement);
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Vehicles;
(l) all Leaseholds;
10
(m) all Prepetition Real Estate Collateral; PROVIDED, that the Lien on
the Elgin Loan Collateral shall (i) not arise until the Elgin Loan
Obligations shall have been repaid, and (ii) be limited in amount to the
sum of (i) the amount of the Elgin Loan Obligations so repaid and (ii) the
amount of interest accrued and paid on Loans used to repay the Elgin Loan
Obligations;
(n) all books and records pertaining to any and all of the foregoing;
and
(o) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing (other than an
amount not to exceed $300,000 held by Wachovia Bank, N.A. as security
against chargebacks in respect of transferes required by any Blocked
Account Agreement between the Borrower and Wachovia Bank, N.A.).
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the General Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to make their
respective Extensions of Credit to the Borrower thereunder, each Grantor hereby
represents and warrants to the General Administrative Agent and each Lender
that:
4.1 REPRESENTATIONS IN CREDIT AGREEMENT; HOLDINGS REPRESENTATIONS. (a)
In the case of each Guarantor, the representations and warranties set forth in
Section 5 of the Credit Agreement as they relate to such Guarantor or to the
Loan Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the General
Administrative Agent and each Lender shall be entitled to rely on each of them
as if they were fully set forth herein, provided that each reference in each
such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 4.1(a), be deemed to be a reference to such Guarantor's
knowledge.
(b) In the case of Holdings,
(i) Holdings is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii)
subject to Section 363(b) of the Bankruptcy Code, has the corporate or
other organizational power and authority, and the legal right, to own
and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (iii) is
duly qualified as a foreign corporation or other entity and in good
standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
such qualification (unless the failure to be qualified shall not
constitute a Material Adverse Effect) and (iv) is in compliance with
all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
11
(ii) Upon entry of the Interim Order, Holdings shall have
the corporate or other organizational power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which
it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent
or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required
in connection with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which Holdings is a party.
This Agreement has been, and each other Loan Document to which it is a
party will be, duly executed and delivered on behalf of Holdings. Upon
entry of the Interim Order, this Agreement will constitute, and each
other Loan Document to which it is a party when executed and delivered
will constitute, a legal, valid and binding obligation of Holdings
enforceable against Holdings in accordance with its terms and the
terms of the Orders.
(iii) The execution, delivery and performance of the Loan
Documents to which Holdings is a party will not violate any
Requirement of Law or Contractual Obligation of Holdings or any other
Grantor and will not result in, or require, the creation or imposition
of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation
(other than pursuant to this Agreement).
(iv) Except for the Cases, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of Holdings, threatened by or against
Holdings or any other Grantor or against any of its or their
respective properties or revenues (x) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby,
or (y) which could reasonably be expected to have a Material Adverse
Effect.
4.2 TITLE; NO OTHER LIENS. Except for the security interest granted to
the General Administrative Agent for the ratable benefit of the Lenders pursuant
to this Agreement and the other Liens permitted to exist on the Collateral by
the Credit Agreement, such Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No financing statement or other
public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the
General Administrative Agent, for the ratable benefit of the Lenders, pursuant
to this Agreement or as are permitted by the Credit Agreement.
4.3 PRIORITY OF LIENS. (a) Each Grantor hereby covenants, represents
and warrants that, upon entry of the Interim Order, the Obligations of the
Borrower and the Guarantors hereunder and under the other Loan Documents, (i)
pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times
constitute allowed Super-Priority Claims, (ii) pursuant to Section 364(c)(2) of
the Bankruptcy Code, shall at all times be secured by a perfected first priority
Lien on all Collateral, including without limitation, all cash maintained in the
Cash Collateral Account and the Concentration Account and any direct investments
of the funds contained therein, that is otherwise not encumbered by a valid and
perfected Lien as of the
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Petition Date, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall
be secured by a perfected second priority Lien upon all Collateral (other than
the Prepetition Collateral of the Borrower and the Guarantors, as to which the
Lien in favor of the General Administrative Agent will be as described in clause
(iv) of this sentence) that is subject to valid and perfected Liens in existence
on the Petition Date or valid Liens perfected (but not granted) thereafter to
the extent such post-Petition Date perfection in respect of a pre-Petition Date
claim is expressly permitted under the Bankruptcy Code, junior to such Liens,
PROVIDED that the Liens granted in favor of the General Administrative Agent
(for the benefit of the General Administrative Agent and the Lenders) shall be
senior to any Lien which is expressly stated herein to be junior to the Liens in
favor of the General Administrative Agent, and (iv) pursuant to Section
364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first
priority, senior priming Lien on all of the Prepetition Collateral of the
Borrower and the Guarantors that is not subject to a Lien permitted under the
Prepetition Credit Agreement and any property of the Borrower and the Guarantors
on which a Lien is granted after the Petition Date to provide adequate
protection in respect of the Prepetition Obligations, subject and subordinate in
each case with respect to subclauses (i) through (iv) above, only to a carve-out
(the "CARVE-OUT") for (x) following the occurrence and during the continuance of
an Event of Default and notice from the General Administrative Agent of the
triggering of such carve-out to the Debtors, their counsel and counsel to any
statutory committee appointed in the Cases, the payment (as the same may be due
and payable) of professional fees and disbursements allowed by order of the
Bankruptcy Court and incurred by the Borrower or any Guarantor and any statutory
committee appointed in the Cases in an aggregate amount not to exceed $7,500,000
(in addition to compensation previously incurred to the extent subsequently
allowed) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and
any fees payable to the Clerk of the Bankruptcy Court, PROVIDED FURTHER that
following the Termination Date, amounts in the Cash Collateral Account shall not
be subject to the Carve-Out. Without prejudice to any Lender's right to object
to the interim or final allowance of any compensation or reimbursement of
expenses, the Lenders agree that so long as no Default or Event of Default shall
have occurred and be continuing, the Borrower shall be permitted to pay
compensation and reimbursement of expenses allowed and payable under Sections
330 and 331 of the Bankruptcy Code, as the same may be payable, and the amounts
so paid shall not reduce the Carve-Out.
(b) Each Grantor acknowledges that, pursuant to the Orders, the Liens
granted in favor of the General Administrative Agent (for the benefit of the
General Administrative Agent and the Lenders) in all of the Collateral shall be
perfected without the recordation of any Uniform Commercial Code financing
statements, notices of Lien, fee or leasehold mortgages or other instruments of
mortgage or assignment. Each Grantor further agrees that if requested by the
General Administrative Agent, it shall execute and deliver to the General
Administrative Agent all such financing statements, notices of Lien, fee or
leasehold mortgages or other instruments of mortgage and assignment in form and
substance reasonably satisfactory to the General Administrative Agent.
4.4 JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE. On the date
hereof, such Grantor's jurisdiction of organization and the location of such
Grantor's chief executive office or
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sole place of business are specified on SCHEDULE 2 which shall be delivered on
or before the date of entry of the Final Order.
4.5 INVENTORY AND EQUIPMENT. On the date hereof, the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on SCHEDULE
3 which shall be delivered on or before the date of entry of the Final Order.
4.6 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.7 INVESTMENT. (a) The shares of Pledged Stock pledged by such
Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Investment Property pledged by it hereunder, free
of any and all Liens or options in favor of, or claims of, any other Person,
except the security interest created by this Agreement or as permitted by the
Credit Agreement.
4.8 RECEIVABLES. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the General Administrative Agent.
(b) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Receivables will at such
times be accurate in all material respects.
4.9 INTELLECTUAL PROPERTY. (a) SCHEDULE 4 which shall be delivered on
or before the date of entry of the Final Order lists all Intellectual Property
owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is valid,
subsisting, unexpired and enforceable, has not been abandoned and does not
infringe the intellectual property rights of any other Person.
14
(c) Except as set forth in SCHEDULE 4, which shall be delivered on or
before the date of the Final Order, on such date, none of the Intellectual
Property is the subject of any licensing or franchise agreement pursuant to
which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that could
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge of such
Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question
the validity of any Intellectual Property or such Grantor's ownership interest
therein, or (ii) which, if adversely determined, would have a material adverse
effect on the value of any Intellectual Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the General Administrative
Agent and the Lenders that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 COVENANTS IN CREDIT AGREEMENT. In the case of each Guarantor, such
Guarantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of its Subsidiaries.
5.2 DELIVERY OF INSTRUMENTS, CERTIFICATED SECURITIES AND CHATTEL
PAPER. If any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any Instrument, Certificated Security or Chattel
Paper, such Instrument, Certificated Security or Chattel Paper shall be
immediately delivered to the General Administrative Agent, duly indorsed in a
manner satisfactory to the General Administrative Agent, to be held as
Collateral pursuant to this Agreement.
5.3 MAINTENANCE OF INSURANCE. (a) Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory, Equipment and Vehicles against loss by fire, explosion, theft and
such other casualties as may be reasonably satisfactory to the General
Administrative Agent and (ii) to the extent requested by the General
Administrative Agent, insuring such Grantor, the General Administrative Agent
and the Lenders against liability for personal injury and property damage
relating to such Inventory, Equipment and Vehicles, such policies to be in such
form and amounts and having such coverage as may be reasonably satisfactory to
the General Administrative Agent and the Lenders.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt
15
by the General Administrative Agent of written notice thereof, (ii) name the
General Administrative Agent as insured party or loss payee, (iii) if reasonably
requested by the General Administrative Agent, include a breach of warranty
clause and (iv) be reasonably satisfactory in all other respects to the General
Administrative Agent.
(c) The Borrower shall deliver to the General Administrative Agent and
the Lenders a report of a reputable insurance broker with respect to such
insurance substantially concurrently with each delivery of the Borrower's
audited annual financial statements and such supplemental reports with respect
thereto as the General Administrative Agent may from time to time reasonably
request.
5.4 PAYMENT OF OBLIGATIONS. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral arising after the
Petition Date or that constitute valid, perfected Liens prior to the Liens
granted thereunder, except that no such charge need be paid if the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, reserves in conformity with GAAP with respect thereto have been
provided on the books of such Grantor and such proceedings could not reasonably
be expected to result in the sale, forfeiture or loss of any material portion of
the Collateral or any interest therein.
5.5 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Grantor will furnish to the General Administrative Agent and
the Lenders from time to time statements and schedules further identifying and
describing the assets and property of such Grantor and such other reports in
connection therewith as the General Administrative Agent may reasonably request,
all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
General Administrative Agent, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the General
Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, (i) filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Investment Property, Deposit Accounts and
any other relevant Collateral, taking any actions necessary to enable the
General Administrative Agent to obtain "control" (within the meaning of the
applicable Uniform Commercial Code) with respect thereto.
16
5.6 CHANGES IN LOCATIONS, NAME, ETC. In the event that financing
statements shall have been recorded as contemplated in Section 5.5(c), no
Grantor will, except upon 15 days' prior written notice to the General
Administrative Agent and delivery to the General Administrative Agent of (a) all
additional executed financing statements and other documents reasonably
requested by the General Administrative Agent to maintain the validity,
perfection and priority of the security interests provided for herein and (b) if
applicable, a written supplement to SCHEDULE 3 showing any additional location
at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on SCHEDULE 3;
(ii) change its jurisdiction of organization or the location of
its chief executive office or sole place of business from that
referred to in Section 4.3; or
(iii) change its name, identity or corporate or other
organizational structure to such an extent that any financing
statement filed by the General Administrative Agent in connection with
this Agreement would become misleading.
5.7 NOTICES. Such Grantor will advise the General Administrative Agent
and the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the General Administrative Agent to exercise any
of its remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 INVESTMENT. (a) If such Grantor shall become entitled to receive
or shall receive any certificate (including, without limitation, any certificate
representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the Capital
Stock of any Issuer, whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the General
Administrative Agent and the Lenders, hold the same in trust for the General
Administrative Agent and the Lenders and deliver the same forthwith to the
General Administrative Agent in the exact form received, duly indorsed by such
Grantor to the General Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by such
Grantor and with, if the General Administrative Agent so requests, signature
guaranteed, to be held by the General Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums paid
upon or in respect of the Investment Property upon the liquidation or
dissolution of any Issuer shall be paid over to the General Administrative Agent
to be held by it hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall be made on or in
respect
17
of the Investment Property or any property shall be distributed upon or with
respect to the Investment Property pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the reorganization
thereof, the property so distributed shall, unless otherwise subject to a
perfected security interest in favor of the General Administrative Agent, be
delivered to the General Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Investment Property shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the General Administrative Agent, hold such money or
property in trust for the General Administrative Agent and the Lenders,
segregated from other funds of such Grantor, as additional collateral security
for the Obligations.
(b) Without the prior written consent of the General Administrative
Agent, such Grantor will not (i) vote to enable, or take any other action to
permit, any Issuer to issue any Capital Stock of any nature or to issue any
other securities convertible into or granting the right to purchase or exchange
for any Capital Stock of any nature of any Issuer, (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Investment Property or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreement), (iii) create, incur or permit to
exist any Lien or option in favor of, or any claim of any Person with respect
to, any of the Investment Property or Proceeds thereof, or any interest therein,
except for the security interests created by this Agreement or permitted by the
Credit Agreement or (iv) enter into any agreement or undertaking restricting the
right or ability of such Grantor or the General Administrative Agent to sell,
assign or transfer any of the Investment Property or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the
Investment Property issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the General Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.8(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.5 shall apply to it, MUTATIS MUTANDIS, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.5 with
respect to the Investment Property issued by it.
5.9 RECEIVABLES. (a) Other than in the ordinary course of business
consistent with its past practice, such Grantor will not (i) grant any extension
of the time of payment of any Receivable, (ii) compromise or settle any
Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the General Administrative Agent a
copy of each material demand, notice or document received by it that questions
or calls into doubt the validity or enforceability of more than 1% of the
aggregate amount of the then outstanding Receivables.
5.10 INTELLECTUAL. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods
18
applicable to its current line as reflected in its current catalogs, brochures
and price lists in order to maintain such Trademark in full force free from any
claim of abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) use such Trademark
with the appropriate notice of registration and all other notices and legends
required by applicable Requirements of Law, (iv) not adopt or use any mark which
is confusingly similar or a colorable imitation of such Trademark unless the
General Administrative Agent, for the ratable benefit of the Lenders, shall
obtain a perfected security interest in such mark pursuant to this Agreement,
and (v) not (and not permit any licensee or sublicensee thereof to) do any act
or knowingly omit to do any act whereby such Trademark may become invalidated or
impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will employ
each material Copyright and (ii) will not (and will not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby any
material portion of the Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any act whereby
any material portion of the Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Such Grantor will notify the General Administrative Agent and the
Lenders immediately if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property or such Grantor's right to register the same or
to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the General Administrative Agent within five Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon request of the
General Administrative Agent, such Grantor shall execute and deliver, and have
recorded, any and all agreements, instruments, documents, and papers as the
General Administrative Agent may request to evidence the General Administrative
Agent's and the Lenders' security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
19
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the General
Administrative Agent after it learns thereof and sue for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
5.11 SPECIAL COVENANTS OF HOLDINGS. Holdings hereby covenants and
agrees that
(a) Sections 7.5, 7.6, 7.7, 7.8, 7.9 and 7.10 of the Credit Agreement
shall apply to Holdings, MUTATIS MUTANDIS, to the same extent as if the
references to a Borrower therein were references to Holdings, and Holdings will
perform and satisfy all such covenants as so applied to it.
(b) Holdings shall take, or shall refrain from taking, as the case may
be, all actions that are necessary to be taken or not taken so that no violation
of any provision, covenant or agreement contained in Section 7 or 8 of the
Credit Agreement, and so that no Default or Event of Default, is caused by any
act or failure to act of Holdings.
(c) Holdings shall not incur any Indebtedness or Guarantee
Obligations, or make any investments in, or loans or advances to any Person, or
merge or consolidate with any Person, or conduct, transact or otherwise engage,
or commit to transact, conduct or otherwise engage, in any business or
operations other than (i) the ownership of the capital stock of the Borrower and
the exercise of rights and performance of obligations in connection therewith,
(ii) the entry into, and exercise of rights and performance of obligations in
respect of, this Agreement, registration rights agreements, voting and other
stockholder agreements and engagement letters, (iii) compliance with applicable
reporting and other obligations, under federal, state or other securities laws,
(iv) the listing of its equity securities and compliance with applicable
reporting and other obligations in connection therewith, (v) the retention of
transfer agents, private placement agents, underwriters, counsel, accountants
and other advisors and consultants, (vi) the performance of obligations under
and in compliance with its certificate of incorporation and by-laws, or any
applicable law, ordinance, regulation, rule, order, judgment, decree or permit,
including, without limitation, as a result of or in connection with the
activities of the Borrower, (vii) the incurrence and payment of any taxes for
which it may be liable and (viii) other activities directly related to the
foregoing.
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SECTION 6. REMEDIAL PROVISIONS
6.1 REMEDIES; OBTAINING COLLATERAL UPON DEFAULT. Upon the occurrence
and during the continuance of an Event of Default, subject to applicable
provisions of the Orders, the General Administrative Agent, in addition to any
rights now or hereafter existing under applicable law, and without application
to or order of the Bankruptcy Court, shall have all rights as a secured creditor
under the Uniform Commercial Code in all relevant jurisdictions and may:
(a) personally, or by agents or attorneys, immediately take possession
of the Collateral or any part thereof, from the Borrower, any Guarantor or
any other Person who then has possession of any part thereof with or
without notice or process of law (but subject to any Requirements of Law),
and for that purpose may enter upon the Borrower's or any Guarantor's
premises where any of the Collateral is located and remove the same and use
in connection with such removal any and all services, supplies, property
and other facilities of the Borrower or Guarantors;
(b) instruct the obligor or obligors on any agreements, instrument or
other obligation constituting the Collateral to make any payment required
by the terms of such instrument or agreement directly to the Concentration
Account or Cash Collateral Account;
(c) withdraw all monies, securities and instruments in the
Concentration Account or Cash Collateral Account for application to the
Obligations and convert any monies not in United States Dollars to United
States Dollars;
(d) sell, assign or otherwise liquidate, or direct the Borrower or any
Guarantor to sell, assign or otherwise liquidate, any or all of the
Collateral or any part thereof, and take possession of the proceeds of any
such sale or liquidation;
(e) take possession of the Collateral or any part thereof, by
directing the Borrower or any Guarantor in writing to deliver the same to
the General Administrative Agent at any place or places designated by the
General Administrative Agent, in which event the Borrower or such Guarantor
shall at its own expense:
(i)(A) forthwith cause the same to be moved to the place or
places so designated by the General Administrative Agent and there
delivered to the General Administrative Agent;
(B)(ii) store and keep any Collateral so delivered to the General
Administrative Agent at such place or places pending further action by
the General Administrative Agent as provided in Section 6.2; and
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(C)(iii) while the Collateral shall be so stored and kept,
provide such guards and maintenance services as shall be necessary to
protect the same and to preserve and maintain them in good condition;
it being understood that the Borrower's or any Guarantor's obligation so to
deliver the Collateral is of the essence of this Agreement and that,
accordingly, upon application to the Bankruptcy Court, the General
Administrative Agent shall be entitled to a decree requiring specific
performance by the Borrower or any Guarantor of such obligation.
6.2 REMEDIES; DISPOSITION OF THE COLLATERAL. Upon the occurrence and
during the continuance of an Event of Default, and subject to applicable
provisions of the Orders, without application to or order of the Bankruptcy
Court, any Collateral repossessed by the General Administrative Agent under or
pursuant to Section 6.1 or the Orders or otherwise, and any other Collateral
whether or not so repossessed by the General Administrative Agent, may be sold,
assigned, leased or otherwise disposed of under one or more contracts or as an
entirety, and without the necessity of gathering at the place of sale the
property to be sold, and in general in such manner, at such time or times, at
such place or places and on such terms as the General Administrative Agent may,
in compliance with any Requirements of Law, determine to be commercially
reasonable. Any of the Collateral may be sold, leased or otherwise disposed of,
in the condition in which the same existed when taken by the General
Administrative Agent or after any overhaul or repair which the General
Administrative Agent shall determine to be commercially reasonable. Any such
disposition which shall be a private sale or other private proceeding permitted
by applicable Requirements of Law shall be made upon not less than 10 days'
written notice to the Grantors specifying the time at which such disposition is
to be made and the intended sale price or other consideration therefor, and
shall be subject, for the 10 days after the giving of such notice, to the right
of the Grantors or any nominee thereof to acquire the Collateral involved at a
price or for such other consideration at least equal to the intended sale price
or other consideration so specified. Any such disposition which shall be a
public sale permitted by applicable Requirements of Law shall be made upon not
less than 10 days' written notice to the Grantors specifying the time and place
of such sale and, in the absence of applicable Requirement of Law, shall be by
public auction (which may, at the General Administrative Agent's option, be
subject to reserve), after publication of notice of such auction not less than
10 days prior thereto in two newspapers of national circulation. The General
Administrative Agent on behalf of the Lenders may bid for and become the
purchaser of the Collateral or any item thereof, offered for sale in accordance
with this Section without accountability to the Grantors (except to the extent
of surplus money received). If, under mandatory Requirements of Law, the General
Administrative Agent shall be required to make disposition of the Collateral
within a period of time which does not permit the giving of notice to the
Borrower or Guarantors as hereinabove specified, the General Administrative
Agent need give the Borrower and Guarantors only such notice of disposition as
shall be reasonably practicable.
6.3 PLEDGED STOCK. (a) Unless an Event of Default shall have occurred
and be continuing and the General Administrative Agent shall have given notice
to the relevant Grantor of the General Administrative Agent's intent to exercise
its corresponding rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the
22
Pledged Stock and all payments made in respect of the Pledged Notes, in each
case paid in the normal course of business of the relevant Issuer and consistent
with past practice, to the extent permitted in the Credit Agreement, and to
exercise all voting and corporate or other organizational rights with respect to
the Investment Property; PROVIDED, HOWEVER, that no vote shall be cast or
corporate or other organizational right exercised or other action taken which,
in the General Administrative Agent's reasonable judgment, would impair the
Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
General Administrative Agent shall give notice of its intent to exercise such
rights to the relevant Grantor or Grantors, (i) the General Administrative Agent
shall have the right to receive any and all cash dividends, payments or other
Proceeds paid in respect of the Investment Property and make application thereof
to the Obligations in such order as the General Administrative Agent may
determine, and (ii) any or all of the Investment Property shall be registered in
the name of the General Administrative Agent or its nominee, and the General
Administrative Agent or its nominee may thereafter exercise (x) all voting,
corporate and other rights pertaining to such Investment Property at any meeting
of shareholders of the relevant Issuer or Issuers or otherwise and (y) any and
all rights of conversion, exchange and subscription and any other rights,
privileges or options pertaining to such Investment Property as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Investment Property upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate or other organizational structure of any Issuer, or upon the
exercise by any Grantor or the General Administrative Agent of any right,
privilege or option pertaining to such Investment Property, and in connection
therewith, the right to deposit and deliver any and all of the Investment
Property with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the General Administrative
Agent may determine), all without liability except to account for property
actually received by it, but the General Administrative Agent shall have no duty
to any Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the General Administrative Agent in writing that
(x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the General Administrative Agent.
6.4 APPLICATION OF PROCEEDS. (a) Notwithstanding anything to the
contrary contained in this Agreement or any other Loan Document, (i) if the
General Administrative Agent takes action under clause (i) or (ii) of Section 9
of the Credit Agreement upon the occurrence and during the continuance of an
Event of Default, any payment by the Borrower or Guarantors on account of the
Obligations and any proceeds arising out of any realization (including after
23
foreclosure) upon the Collateral shall be applied, subject to the Carve-Out, as
follows: FIRST, to the payment in full of all costs and expenses (including
without limitation, reasonable attorneys' fees and disbursements) paid or
incurred by the General Administrative Agent or any of the Lenders in connection
with any such realization upon the Collateral, SECOND, as a permanent reduction
of the Revolving Credit Commitments, pro rata to the payment in full of the
Revolving Credit Loans (including any accrued and unpaid interest thereon, and
any fees and other Obligations in respect thereof), THIRD, to the payment in
full of unreimbursed amounts paid under any Letter of Credit, FOURTH, to cash
collateralize unreimbursed amounts paid under any Letter of Credit in an amount
equal to 105% of any such amount, FIFTH, subject to the terms of the Final
Order, to the Prepetition Agent for application to the Prepetition Obligations
to the extent of any diminution in value in the Prepetition Collateral since the
Petition Date, and SIXTH, to the extent of any Proceeds of Collateral that are
also Proceeds of Prepetition Collateral, to the payment in full of the
Prepetition Obligations, and (ii) any payments or distributions of any kind or
character, whether in cash, property or securities, made by the Grantors or
otherwise in a manner inconsistent with clause (i) of this Section 6.4(a) shall
be held in trust and paid over or delivered to the General Administrative Agent
so that the priorities and requirements set forth in such clause (i) are
satisfied.
(b) It is understood that the Borrower and the Guarantors shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral and the amount of the Obligations.
6.5 REGISTRATION. (a) If the General Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.1, and if in the opinion of the General Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the General Administrative Agent, necessary or advisable
to register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
General Administrative Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the General Administrative Agent shall
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the General Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to
24
resort to one or more private sales thereof to a restricted group of purchasers
which will be obliged to agree, among other things, to acquire such securities
for their own account for investment and not with a view to the distribution or
resale thereof. Each Grantor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. The General Administrative Agent shall be under no obligation to delay a
sale of any of the Pledged Stock for the period of time necessary to permit the
Issuer thereof to register such securities for public sale under the Securities
Act, or under applicable state securities laws, even if such Issuer would agree
to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pursuant to this Section 6.5 valid and
binding and in compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants contained in
this Section 6.5 will cause irreparable injury to the General Administrative
Agent and the Lenders, that the General Administrative Agent and the Lenders
have no adequate remedy at law in respect of such breach and, as a consequence,
that each and every covenant contained in this Section 6.5 shall be specifically
enforceable against such Grantor, and such Grantor hereby waives and agrees not
to assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.
SECTION 7. THE GENERAL ADMINISTRATIVE AGENT
7.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a)
Each Grantor hereby irrevocably constitutes and appoints the General
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the General Administrative Agent the power
and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the General Administrative Agent for the
purpose of collecting any and all such moneys due under any Receivable or
with respect to any other Collateral whenever payable;
25
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the General Administrative Agent may request to evidence the
General Administrative Agent's and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.1
or 6.2, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the General Administrative Agent or as the General
Administrative Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of
any Collateral; (3) sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (4) commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral; (5) defend any suit,
action or proceeding brought against such Grantor with respect to any
Collateral; (6) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, give such discharges or releases
as the General Administrative Agent may deem appropriate; (7) assign any
Intellectual Property (along with the goodwill of the business to which any
such Intellectual Property pertains), throughout the world for such term or
terms, on such conditions, and in such manner, as the General
Administrative Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though
the General Administrative Agent were the absolute owner thereof for all
purposes, and do, at the General Administrative Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and things
which the General Administrative Agent deems necessary to protect, preserve
or realize upon the Collateral and the General Administrative Agent's and
the Lenders' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
General Administrative Agent agrees that it will not exercise any rights under
the power of attorney provided for in this Section 7.1(a) unless an Event of
Default shall have occurred and be continuing.
26
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the General Administrative Agent, at its option,
but without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the General Administrative Agent incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum equal to the highest rate per annum at
which interest would then be payable on past due Revolving Credit Loans that are
Base Rate Loans under the Credit Agreement, from the date of payment by the
General Administrative Agent to the date reimbursed by the relevant Grantor,
shall be payable by such Grantor to the General Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 DUTY OF GENERAL ADMINISTRATIVE. The General Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the General
Administrative Agent deals with similar property for its own account. Neither
the General Administrative Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the General Administrative Agent and the Lenders hereunder are
solely to protect the General Administrative Agent's and the Lenders' interests
in the Collateral and shall not impose any duty upon the General Administrative
Agent or any Lender to exercise any such powers. The General Administrative
Agent and the Lenders shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
7.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
General Administrative Agent, in its sole discretion, to file or record
financing statements and other filing or recording documents or instruments with
respect to the Collateral without the signature of such Grantor in such form and
in such offices as the General Administrative Agent determines reasonably
appropriate to perfect the security interests of the General Administrative
Agent under this Agreement. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction.
7.4 AUTHORITY OF GENERAL ADMINISTRATIVE AGENT. Each Grantor
acknowledges that the rights and responsibilities of the General Administrative
Agent under this Agreement with
27
respect to any action taken by the General Administrative Agent or the exercise
or non-exercise by the General Administrative Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the General Administrative Agent
and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the General Administrative Agent and the Grantors, the General
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting, and
no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 11.1 of the Credit Agreement.
8.2 NOTICES. All notices, requests and demands to or upon the General
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 11.2 of the Credit Agreement.
8.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
General Administrative Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the General Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the General Administrative
Agent or any Lender of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the General
Administrative Agent or such Lender would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
8.4 ENFORCEMENT EXPENSES; INDEMNIFICATION. (a) Each Guarantor agrees
to pay or reimburse the General Administrative Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel to the
General Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the General
Administrative Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to
28
be payable with respect to any of the Collateral or in connection with any of
the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the General
Administrative Agent and the Lenders harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
Section 11.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
General Administrative Agent and the Lenders and their successors and assigns;
PROVIDED that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
General Administrative Agent.
8.6 SET-OFF. Each Grantor hereby irrevocably authorizes the General
Administrative Agent and each Lender at any time and from time to time while an
Event of Default pursuant to Section 9(a) of the Credit Agreement shall have
occurred and be continuing, without notice to such Grantor or any other Grantor,
any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the General
Administrative Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the General Administrative Agent
or such Lender may elect, against and on account of the obligations and
liabilities of such Grantor to the General Administrative Agent or such Lender
hereunder and claims of every nature and description of the General
Administrative Agent or such Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the General Administrative Agent or such Lender may elect,
whether or not the General Administrative Agent or any Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The General Administrative Agent and each Lender shall
notify such Grantor promptly of any such set-off and the application made by the
General Administrative Agent or such Lender of the proceeds thereof, PROVIDED
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the General Administrative Agent and each
Lender under this Section 8.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the General
Administrative Agent or such Lender may have.
8.7 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
29
8.8 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the General Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the General
Administrative Agent or any Lender relative to subject matter hereof and thereof
not expressly set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the
Bankruptcy Court and, if the Bankruptcy Court does not have or abstains
from jurisdiction, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address
of which the General Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
30
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
8.13 ACKNOWLEDGMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the General Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the General
Administrative Agent and Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Grantors and the Lenders.
8.14 ABSENCE OF PREJUDICE WITH RESPECT TO MATTERS BEFORE THE
BANKRUPTCY COURT. The Borrower and the Guarantors acknowledge that the
Bankruptcy Code and Bankruptcy Rules require them to seek Bankruptcy Court
authorization for certain matters that may also be addressed in this Agreement.
Neither the Borrower nor the Guarantors will mention in any pleading or argument
before the Bankruptcy Court in support of, or in any way relating to, a position
that Bankruptcy Court authorization should be granted on the ground that such
authorization is permitted by this Agreement (unless a Person opposing any such
pleading or argument relies on this Agreement to assert or question the
propriety of such).
8.15 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
SAFETY-KLEEN CORP. (formerly known as
Laidlaw Environmental Services, Inc.)
By: /s/ Henry H. Taylor
Name: Henry H. Taylor
Title: Senior Vice President, General
Counsel & Secretary
SAFETY-KLEEN SERVICES, INC. (formerly
known as LES, Inc.)
SAFETY-KLEEN (PECATONICA), INC.
(formerly known as Laidlaw Environmental
Services of Illinois, Inc.)
GSX CHEMICAL SERVICES OF OHIO, INC.
SAFETY-KLEEN (BDT), INC. (formerly known
as Laidlaw Environmental Services (BDT), Inc.)
SAFETY-KLEEN (FS), INC. (formerly known as
Laidlaw Environmental Services (FS), Inc.)
SAFETY-KLEEN (GS), INC. (formerly known as
Laidlaw Environmental Services (GS), Inc.)
SAFETY-KLEEN (CHATTANOOGA), INC.
(formerly known as Laidlaw Environmental
Services of Chattanooga, Inc.)
SAFETY-KLEEN (WHITE CASTLE), INC.
(formerly known as Laidlaw Environmental
Services of White Castle, Inc.)
SAFETY-KLEEN (CROWLEY), INC. (formerly
known as Laidlaw Environmental Services
(Recovery), Inc.)
SAFETY-KLEEN (TS), INC. (formerly known as
Laidlaw Environmental Services (TS), Inc.)
SAFETY-KLEEN (WESTMORLAND), INC.
(formerly known as Laidlaw Environmental
Services (Imperial Valley), Inc.)
SAFETY-KLEEN (BUTTONWILLOW), INC.
(formerly known as Laidlaw Environmental
Services (Lokern), Inc.)
SAFETY-KLEEN (CALIFORNIA), INC.
(formerly known as Laidlaw Environmental
of California, Inc.)
SAFETY-KLEEN (PINEWOOD), INC. (formerly
known as Laidlaw Environmental Services of
South Carolina, Inc.)
SAFETY-KLEEN (NE), INC. (formerly known as
Laidlaw Environmental Services
(North East), Inc.)
SAFETY-KLEEN (LAPORTE), INC. (formerly
known as Laidlaw Environmental Services
(TES), Inc.)
SAFETY-KLEEN CHEMICAL SERVICES, INC.
(formerly known as Laidlaw Chemical Services,
Inc.)
SAFETY-KLEEN (ROEBUCK), INC. (formerly
known as Laidlaw Environmental Services
(TOC), Inc.)
SAFETY-KLEEN (TG), INC. (formerly known as
Laidlaw Environmental Services (TG), Inc.)
SAFETY-KLEEN (ALTAIR), INC. (formerly
known as Laidlaw Environmental Services
(Altair), Inc.)
SAFETY-KLEEN (WT), INC. (formerly known as
Laidlaw Environmental Services (WT), Inc.)
SAFETY-KLEEN (BARTOW), INC. (formerly
known as Laidlaw Environmental Services of
Bartow, Inc.)
SAFETY-KLEEN (COLFAX), INC. (formerly
known as Laidlaw Environmental Services
(Thermal Treatment), Inc.)
LEMC, INC.
SAFETY-KLEEN OSCO HOLDINGS, INC.
(formerly known as Laidlaw OSCO Holdings,
Inc.)
SAFETY-KLEEN (NASHVILLE), INC. (formerly
known as Laidlaw Environmental Services of
Nashville, Inc.)
SAFETY-KLEEN (CLIVE), INC. (formerly
known as Laidlaw Environmental Services
(Clive), Inc.)
SAFETY-KLEEN (LONE AND GRASSY
MOUNTAIN), INC. (formerly known as
Laidlaw Environmental Services
(Lone and Grassy Mountain), Inc.)
SAFETY-KLEEN (TULSA), INC. (formerly
known as Laidlaw Environmental Services
(Tulsa), Inc.)
SAFETY-KLEEN (SAN ANTONIO), INC.
(formerly known as Laidlaw Environmental
Services (San Antonio), Inc.)
SAFETY-KLEEN (WICHITA), INC. (formerly
known as Laidlaw Environmental Services
(Wichita), Inc.)
SAFETY-KLEEN (DELAWARE), INC. (formerly
known as Laidlaw Environmental Services of
Delaware, Inc.)
USPCI, INC. OF GEORGIA
SAFETY-KLEEN (SAN JOSE), INC. (formerly
known as Laidlaw Environmental Services
(San Jose), Inc.)
SAFETY-KLEEN (SAWYER), INC. (formerly
known as Laidlaw Environmental Services
(Sawyer), Inc.)
CHEMCLEAR, INC. OF LOS ANGELES
SAFETY-KLEEN (ROSEMOUNT), INC.
(formerly known as Laidlaw Environmental
Services (Rosemount), Inc.)
SAFETY-KLEEN HOLDING'S, INC. (formerly
known as LES Holding's, Inc.)
SAFETY-KLEEN (PPM), INC. (formerly known
as Laidlaw Environmental Services (Tucker),
Inc.)
NINTH STREET PROPERTIES, INC.
SAFETY-KLEEN (MT. PLEASANT), INC.
(formerly known as Laidlaw Environmental
Services (Mt. Pleasant), Inc.)
SAFETY-KLEEN (DEER TRAIL), INC.
(formerly known as Laidlaw Environmental
Services (Deer Trail), Inc.)
SAFETY-KLEEN (MINNEAPOLIS), INC.
(formerly known as Laidlaw Environmental
Services (Minneapolis), Inc.)
SAFETY-KLEEN (LOS ANGELES), INC.
(formerly known as Laidlaw Environmental
Services (Los Angeles), Inc.)
SAFETY-KLEEN (BATON ROUGE), INC.
(formerly known as Laidlaw Environmental
Services (Baton Rouge), Inc.)
SAFETY-KLEEN (PLAQUEMINE), INC.
(formerly known as Laidlaw Environmental
Services (Plaquemine), Inc.)
SAFETY-KLEEN (BRIDGEPORT), INC.
(formerly known as Laidlaw Environmental
Services (Bridgeport), Inc.)
SAFETY-KLEEN (DEER PARK), INC. (formerly
known as Laidlaw Environmental Services
(Deer Park), Inc.)
SAFETY-KLEEN (TIPTON), INC.
(formerly known as Laidlaw Environmental
Services (Tipton), Inc.)
SAFETY-KLEEN (SUSSEX), INC. (formerly
known as Laidlaw Environmental Services
(Sussex), Inc.)
SAFETY-KLEEN (GLOUCESTER), INC.
(formerly known as Laidlaw Environmental
Services (Gloucester), Inc.)
SAFETY-KLEEN (CUSTOM TRANSPORT),
INC. (formerly known as Laidlaw Environmental
Services (Custom Transport), Inc.)
SAFETY-KLEEN (ARAGONITE), INC. (formerly
known as Laidlaw Environmental Services
(Aragonite), Inc.)
SAFETY-KLEEN (PUERTO RICO), INC.
(formerly known as Laidlaw Environmental
Services (Puerto Rico), Inc.)
SAFETY-KLEEN SYSTEMS, INC. (formerly
known as Safety-Kleen Corp.)
DIRT MAGNET, INC.
THE MIDWAY GAS & OIL CO.
ELGINT CORP.
SAFETY-KLEEN ENVIROSYSTEMS
COMPANY
SAFETY-KLEEN ENVIROSYSTEMS
COMPANY OF PUERTO RICO, INC.
PETROCON, INC.
PHILLIPS ACQUISITION CORP.
SAFETY-KLEEN (CONSULTING), Inc. (formerly
known as Virogroup, Inc., which was formerly
known as Safety-Kleen Aviation, Inc.)
SK REAL ESTATE, INC.
SAFETY-KLEEN INTERNATIONAL, INC.
SAFETY-KLEEN OIL RECOVERY CO.
SAFETY-KLEEN OIL SERVICES, INC.
THE SOLVENTS RECOVERY SERVICE OF
NEW JERSEY, INC.
ECOGARD, INC.
SAFETY-KLEEN (ENCOTEC), INC. (formerly
known as Laidlaw Environmental, Inc.)
SK SERVICES (EAST), L.C.
SK SERVICES, L.C.
SK EUROPE, INC.
By: /s/ Henry H. Taylor
-----------------------------------
Name: Henry H. Taylor
Title: President
SCHEDULE 1 TO THE GUARANTEE
AND COLLATERAL AGREEMENT
DESCRIPTION OF PLEDGED SECURITIES
PLEDGED STOCK CLASS OF STOCK STOCK NO. OF SHAREHOLDER
CERT. NO. SHARES
ISSUED
<
Safety-Kleen Services, Inc. (fka
LES, Inc. fka Laidlaw Chem- Common 6 112 Safety-Kleen Corp. (fka Laidlaw
Waste, Inc.) Environmental Services, Inc. fka
7 100 Rollins Environmental Services,
Inc.)
8 10
9 1
Safety-Kleen (Consulting), Inc. (fka Common 3 100 Safety-Kleen Services, Inc. (2)
ViroGroup, Inc. fka Safety-Kleen
Aviation, Inc.) (1) 2 1000 Safety-Kleen Systems, Inc.
Safety-Kleen (Lone and Grassy Common 9 3,076,872 Safety-Kleen Services, Inc. as
Mountain), Inc. (fka Laidlaw successor to USPCI, Inc. (3)
Environmental Services (Lone and
Grassy Mountain), Inc. fka United
States Pollution Control, Inc.
Safety-Kleen (Tulsa), Inc. (fka Common C-1 10,000 Safety-Kleen (Lone and Grassy
Laidlaw Environmental Services Mountain), Inc.
(Tulsa), Inc.fka Hydrocarbon
Recyclers, Inc.)
Safety-Kleen (San Antonio), Inc.
(fka Laidlaw Environmental Common 1 3402 Safety-Kleen (Tulsa), Inc.
Services (San Antonio), Inc. fka
Hydrocarbon Recyclers, Inc. of
San Antonio)
Safety-Kleen (Wichita), Inc. (fka Common 2 100 Safety-Kleen (Tulsa), Inc.
Laidlaw Environmental Services
(Wichita), Inc. fka Hydrocarbon
Recyclers, Inc. of Wichita)
Safety-Kleen (Delaware), Inc. (fka Common 1 1000 Safety-Kleen (Lone and Grassy
Laidlaw Environmental Services of
- -----------------
(1) LES Merger, Inc. was merged into ViroGroup, Inc. (a Florida corporation) on October 30, 1998. LES Merger, Inc.
formerly had 1000 shares of common stock issued to Laidlaw Environmental Services (US), Inc. on stock certificate
number 001. ViroGroup, Inc., the Florida corporation, was thereafter merged into Safety-Kleen Aviation, Inc. on
November 20, 1998. ViroGroup, Inc. formerly had 397,607 shares of common stock issued to Laidlaw Osco Holdings, Inc.
[Safety-Kleen Aviation, Inc. thereafter changed its name to ViroGroup, Inc., a Delaware corporation].
(2) Safety-Kleen Services, Inc. is the successor to Safety-Kleen Services (US), Inc. following a merger on 9/1/98.
Safety-Kleen Services (US), Inc. formerly had 105 common shares issued to Safety-Kleen Services, Inc. on certificate
number 3 and 100 common shares issued to Safety-Kleen Services, Inc. on certificate number 4. Safety-Kleen Services
(US), Inc. was fka Laidlaw Environmental Services (US), Inc. fka Laidlaw Environmental Services, Inc. fka GSX
Chemical Services, Inc.
UPC Holding Corp. had been merged into Laidlaw Environmental Services (US), Inc. on May 23, 1997. UPC Holding Corp.
formerly had 100 common shares issued to Laidlaw Environmental Services (US), Inc. on certificate number 3.
Redox, Inc. was merged into Laidlaw Environmental Services (US), Inc. on August 22, 1997. Redox, Inc. formerly had
100 common shares issued to Laidlaw Environmental Services (US), Inc. on certificate number 3.
East Carbon Development Financial Partners, Inc. was merged into Laidlaw Environmental Services (US), Inc. on August
28, 1998. East Carbon Development Financial Partners, Inc. formerly had 1000 common shares issued to Laidlaw
Environmental Services (US), Inc. on certificate number 1.
USPCI of Pennsylvania, Inc. was dissolved on August 15, 1997. USPCI of Pennsylvania, Inc. formerly had 1053 common
shares issued to USPCI, Inc.
(3) USPCI, Inc. was merged into Laidlaw Environmental Services (US), Inc. on May 23, 1997.
Page 1 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Delaware, Inc. fka Northeastern Mountain), Inc.
Remedial Corporation)
Safety-Kleen (Rosemount), Inc. Common 1 5000 Safety-Kleen Services, Inc. as
(fka Laidlaw Environmental successor to USPCI, Inc.
Services (Rosemount), Inc. fka
Minnesota Industrial Containment
Facility, Inc.)
Safety-Kleen (Sawyer), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(Sawyer), Inc. fka Municipal
Services Corporation)
Safety-Kleen (PPM), Inc. (fka Common 1 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to USPCI. Inc.
(Tucker), Inc. fka PPM, Inc. of
Georgia)
Ninth Street Properties, Inc. Common 1 1000 Safety-Kleen (PPM), Inc.
Safety-Kleen (San Jose), Inc. (fka Common C-1 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to USPCI, Inc.
(San Jose), Inc. fka Solvent Service
Co., Inc.)
Chemclear, Inc. of Los Angeles Common 1 1000 Safety-Kleen Services, Inc. as
successor to USPCI, Inc.
USPCI, Inc. of Georgia Common 1 100 Safety-Kleen Services, Inc. as
successor to USPCI, Inc.
Safety-Kleen Holdings, Inc. (fka LES Common Replace 1000 Safety-Kleen Services, Inc. as
Co.,Holdings, Inc. fka McDuffie ment 1 successor to USPCI, Inc.
County Environmental Facility,
Inc.)
Safety-Kleen (Westmorland), Inc. Common 2 10 Safety-Kleen Services, Inc. as
(fka Laidlaw Environmental successor to Safety-Kleen (US), Inc.
Services (Imperial Valley), Inc. fka
GSX Services (Imperial Valley)
Inc.)
1 10 Safety-Kleen (California), Inc.
Safety-Kleen (Buttonwillow), Inc. Common 2 3 Safety-Kleen Services, Inc. as
(fka Laidlaw Environmental successor to Safety-Kleen (US), Inc.
Services (Lokern), Inc. fka GSX
Services (Petroleum Waste), Inc.) Safety-Kleen (California), Inc.
1 10
Safety-Kleen (NE), Inc. (fka Common 5 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(North East), Inc. fka North East
Solvents Reclamation Corporation)
Safety-Kleen (Crowley), Inc. (fka Common 2 105 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(Recovery), Inc.)
Page 2 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Safety-Kleen (LaPorte), Inc. (fka Common 7 10,000 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(TES), Inc.) (4)
Safety-Kleen (TG), Inc. (fka Common 3 1000 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(TG), Inc. fka Willms Trucking
Company, Inc.)
Safety-Kleen (Roebuck), Inc. (fka Common 3 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(TOC), Inc. fka Thermal Oxidation
Corporation)
Safety-Kleen (TS), Inc. (fka Common 2 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(TS), Inc. fka GSX Services, Inc.)
Safety-Kleen (Colfax), Inc. (fka Common 1 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(Thermal Treatment), Inc. fka
Laidlaw Environmental Services of
Arizona, Inc.)
GSX Chemical Services of Ohio,
Inc. Common 4 500 Safety-Kleen Services, Inc. as
successor to Safety-Kleen (US), Inc.
LEMC, Inc. (fka S.M.C., Inc.) Common 1 10 Safety-Kleen Services, Inc. as
successor to Safety-Kleen (US), Inc.
Safety-Kleen Chemical Services, Common 7 3000 Safety-Kleen Services, Inc. as
Inc. (fka Laidlaw Chemical successor to Safety-Kleen (US), Inc.
Services, Inc. fka Service Chemical
Corporation)
Safety-Kleen (Altair), Inc. (fka Common 3 1000 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(Altair), Inc.)
Safety-Kleen (FS), Inc. (fka Common 004 1000 Safety-Kleen (Altair), Inc.
Laidlaw Environmental Services
(FS), Inc.) 3 6500 Safety-Kleen Services, Inc. as
successor to Safety-Kleen (US), Inc.
Safety-Kleen (BDT), Inc. (fka Common 12 7510 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services successor to Safety-Kleen (US), Inc.
(BDT), Inc. fka BDT, Inc.)
Safety-Kleen (GS), Inc. (fka Common 12 10 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services ( successor to Safety-Kleen (US), Inc.
GS), Inc. fka GSX Government
Services, Inc.)
- -----------------
(4) Safety-Kleen (LaPorte), Inc. previously owned 250 common shares of Corsan Trucking, Inc. issued on certificate
number 3. Laidlaw Environmental Services (US), Inc. owned the remaining issued shares of Corsan Trucking, Inc. that
being 750 common shares issued on certificate number 4. Corsan Trucking, Inc. was dissolved on August 14, 1998.
Page 3 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Safety-Kleen (Clive), Inc. (fka Laidlaw Common 11 1000 Safety-Kleen Services, Inc. as
Environmental Services (Clive), Inc. successor to Safety-Kleen (US), Inc.
fka USPCI Clive Incineration Facility,
Inc.)
Safety-Kleen (WT), Inc. (fka Laidlaw Common C-1 201,000 Safety-Kleen Services, Inc. as
Environmental Services (WT), Inc.) successor to Safety-Kleen (US), Inc.
Safety-Kleen OSCO Holdings, Inc. (fka Common 1 100 Safety-Kleen Services, Inc. as
Laidlaw Osco Holdings, Inc.) (5) successor to Safety-Kleen (US), Inc.
Safety-Kleen (Nashville), Inc. (fka Common 2 1000 Safety-Kleen OSCO Holdings, Inc.
Laidlaw Environmental Services of
Nashville, Inc.)
Safety-Kleen (Bartow), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services of successor to Safety-Kleen (US), Inc.
Bartow, Inc.)
Safety-Kleen (California), Inc. (fka Common 3 100 Safety-Kleen Services, Inc.
Laidlaw Environmental Services of
California, Inc.) (6)
Safety-Kleen (Chattanooga), Inc. (fka Common 2 100 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services of successor to Safety-Kleen (US), Inc.
Chattanooga, Inc. fka GSX Hydrotech
Systems, Inc.)
Safety-Kleen (Pecatonica), Inc. (fka Common 2 500 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services of successor to Safety-Kleen (US), Inc.
Illinois, Inc. fka FIW, Inc.)
Safety-Kleen (Pinewood), Inc. (fka Common 222 1 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services of South successor to Safety-Kleen (US), Inc.
Carolina, Inc. fka GSX Services of
South Carolina, Inc.)
Safety-Kleen (White Castle), Inc. (fka Common 10 17,820 Safety-Kleen Services, Inc. as
Laidlaw Environmental Services of White successor to Safety-Kleen (US), Inc.
Castle, Inc. fka GSX Land Treatment,
Inc.)
Safety-Kleen (Bridgeport), Inc. fka Common 7 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Bridgeport), Inc. fka Rollins
Environmental Services (NJ) Inc.)
Safety-Kleen (Deer Park), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Deer
Park), Inc. fka Rollins Environmental
Services (TX), Inc.)
- -----------------------
(5) Osco Environmental Services, Inc. was merged into Laidlaw Osco Holdings, Inc. on August 21, 1997, Osco
Environmental Services, Inc. formerly had 100 shares of common stock issued to Laidlaw Osco Holdings, Inc. on
certificate number 2.
(6) Greenfield Services Corporation was merged into Laidlaw Environmental Services of California, Inc. on July 30,
1997, Greenfield Services Corporation formerly had 100,000 shares of common stock issued to Laidlaw Environmental
Services (US), Inc. on certificate number 2. Master Wash Products, Inc. was merged into Laidlaw Environmental
Services of California, Inc. on August 29, 1997. Master Wash Products, Inc. formerly had 5,100,000 shares of common
stock issued to Laidlaw Environmental Services (US), Inc. on certificate number C101.
Page 4 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Safety-Kleen (Baton Rouge), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Baton
Rouge), Inc. fka Rollins Environmental
Services (LA) Inc.)
Safety-Kleen (Plaquemine), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Plaquemine), Inc. fka Rollins
Environmental Services of Louisiana,
Inc.)
Safety-Kleen (Custom Transport), Inc. Common 2 1000 Safety-Kleen Services, Inc.
(fka Laidlaw Environmental Services
(Custom Transport), Inc. fka Custom
Environmental Transport, Inc.)
Safety-Kleen (Los Angeles), Inc. (fka Common 4 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Los
Angeles), Inc. fka Rollins O.P.C. Inc.)
Safety-Kleen (Tipton), Inc. (fka Common 3 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Tipton), Inc. fka Tipton Environmental
Technology, Inc.)
Safety-Kleen (Gloucester), Inc. (fka Common 3 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Gloucester), Inc. fka Gloucester
County Construction Co.)
Safety-Kleen (Deer Trail), Inc. (fka Common 5 500 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Deer
Trail), Inc. fka Highway 36 Land
Development Company)
Safety-Kleen (Mt. Pleasant), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Mt.
Pleasant), Inc. fka Allworth of
Tennessee, Inc.)
Safety-Kleen (Minneapolis), Inc. (fka Common 11 3000 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Minneapolis), Inc. fka National
Electric, Inc.)
Safety-Kleen (Aragonite), Inc. (fka Common 3 1000 Safety-Kleen (Minneapolis), Inc.
Laidlaw Environmental Services
(Aragonite), Inc. fka Aptus, Inc.)
Safety-Kleen (Sussex), Inc. (fka Common 2 500 Safety-Kleen Services, Inc.
Laidlaw Environmental Services
(Sussex), Inc. fka Sussex Contractors,
Inc.)
Safety-Kleen (Encotec), Inc. (fka Common 2 1000 Safety-Kleen Services, Inc.
Laidlaw Environmental, Inc. fka Rollins
Environmental, Inc.)
Page 5 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Safety-Kleen Systems, Inc. (fka Common 001 1 Safety-Kleen Services, Inc.
Safety-Kleen Corp.) (7)
Ecogard, Inc. Common 4 10 Safety-Kleen Systems, Inc.
SK Europe, Inc. Common 001 10 Safety-Kleen Systems, Inc.
Safety-Kleen Europe Limited (44%) Common 16 2,640,000 SK Europe, Inc.
Dirt Magnet, Inc. Common 38 44,387 Safety-Kleen Systems, Inc.
The Midway Gas and Oil Co. Common 38 26 Dirt Magnet, Inc.
Elgint Corp. Common 1 2500 Safety-Kleen Systems, Inc.
Safety-Kleen Envirosystems Company Common 1 1000 Safety-Kleen Systems, Inc.
Safety-Kleen Envirosystems Company of Common 1 10 Safety-Kleen Envirosystems Company
Puerto Rico, Inc.
Petrocon, Inc. Common 1 100 Safety-Kleen Systems, Inc.
Phillips Acquisition Corp. Common 1 3000 Safety-Kleen Systems, Inc.
SK Real Estate Inc. Common 1 100 Safety-Kleen Systems, Inc.
Safety-Kleen International, Inc. Common 1 100 Safety-Kleen Systems, Inc.
Safety-Kleen Oil Recovery Co. Common 2 1000 Safety-Kleen Systems, Inc.
Safety-Kleen Oil Services, Inc. Common 2 100 Safety-Kleen Systems, Inc.
The Solvents Recovery Service of New Common 11 200 Safety-Kleen Systems, Inc.
Jersey, Inc.
See also Attachment A to Schedule 1 of
the Guarantee & Collateral Agreement
FOREIGN SUBSIDIARIES CLASS OF STOCK STOCK NO. OF SHAREHOLDER
CERT. NO. SHARES
ISSUED
Safety-Kleen (Puerto Rico), Inc. (fka Common 4 1 Safety-Kleen Services, Inc.
Laidlaw Environmental Services (Puerto
Rico), Inc.)
Laidlaw Environmental Services de Series A 51 Safety-Kleen Services, Inc.
Mexico, S.A. de C.V. (8)
Series B 449
- ---------------
(7) LES Acquisition, Inc. was merged into Safety-Kleen Corp. (nka Safety-Kleen Systems, Inc.) on May 20, 1998. LES
Acquisition, Inc. formerly had 1 common share issued to LES, Inc. on certificate number 001.
(8) Safety-Kleen Services, Inc. pledged 260 shares of Laidlaw Environmental Services de Mexico, S.A. de C.V. because
it believed that it held 400 series B shares and that Ametch Inc. and unrelated shareholder held 49 shares of series
B and that Odeberto Ramos held 51 series A shares. Based on this information Mexican counsel was asked to prepare
two share certificates dividing the 400 series B shares into 65% and 35% interests. It appears that Mexican counsel
issued two certificates to Safety-Kleen Services, Inc. (fka LES, Inc.) certificate 5 in the amount of 260 shares of
Series A and certificate 6 in the amount of 191 shares of series A.
Page 6 of 7
Schedule 1 to the Guarantee
And Collateral Agreement
Safety-Kleen Canada, Inc. Class A CA-4 1000 Safety-Kleen Systems, Inc. (9)
Class B CB-4 6500 Safety-Kleen Systems, Inc.
Class C CC-4 36,531 Safety-Kleen Systems, Inc.
Class Z CZ-3 417,528 Safety-Kleen Systems, Inc.
Safety-Kleen Ltd (successor to Laidlaw Class A Safety-Kleen Services, Inc.
Environmental Services (Canada) Ltd.)
Class B
- ----------------------------
(9) 1000 Shares of Class A stock are issued to Safety-Kleen Systems, Inc. and 650 of these are pledged securities.
10,000 shares of Class B stock are issued to Safety-Kleen Systems, Inc. and 6500 of these are pledged securities.
56,203 shares of Class C stock are issued to Safety-Kleen Systems, Inc. and 36,531 of these are pledged securities.
1,353,550 shares of Class Z stock are issued. Safety-Kleen Systems, Inc. holds 642,351 of these shares of which
417,528 are pledged. 3095-7146 Quebec Inc. holds 711,199 Class Z shares (however, they are physically held by
Safety-Kleen Canada Inc. and Safety-Kleen Systems, Inc. as collateral for payment of outstanding loans).
Page 7 of 7
Schedule 2
Guarantee and Collateral Agreement
CORPORATE ORGANIZATIONAL STRUCTURE
SAFETY-KLEEN CORP. - - NYSE: (SK)
THE FOLLOWING LIST SETS FORTH THE SUBSIDIARIES OF SAFETY-KLEEN CORP. AS OF JULY 20, 2000. PARENT
SUBSIDIARY RELATIONS ARE INDICATED BY INDENTATIONS. UNLESS OTHERWISE INDICATED, 100% OF THE VOTING
SECURITIES OF EACH SUBSIDIARY IS OWNED BY THE INDICATED PARENT OF SUCH SUBSIDIARY.
THE CHIEF EXECUTIVE OFFICE OF EACH COMPANY EXCEPT ELGINT CORP. IS 1301 GERVAIS STREET, SUITE 300,
COLUMBIA, SOUTH CAROLINA 29201. THE CHIEF EXECUTIVE OFFICE FOR ELGINT CORP. IS 101 CONVENTION
CENTER DRIVE, SUITE 850, LAS VEGAS, NEVADA 89109.
- ------------------------------------------------------------------------------------ --------------
NAME OF CORPORATION STATE OF INCORPORATION
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN CORP. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SERVICES, INC. Delaware
- ------- -------------------------------------------------------------------------------------------
SAFETY-KLEEN (CONSULTING), INC. (7.8635%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LONE AND GRASSY MOUNTAIN), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TULSA), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SAN ANTONIO), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WICHITA), INC. Kansas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DELAWARE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SK SERVICES (EAST), L.C. Utah
- ---------------------------------------------------------------------------------------------------
SK SERVICES, L.C. Utah
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ROSEMOUNT), INC. Minnesota
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SAWYER), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PPM), INC. Georgia
- ---------------------------------------------------------------------------------------------------
NINTH STREET PROPERTIES, INC. Missouri
- ---------------------------------------------------------------------------------- ----------------
SAFETY-KLEEN (SAN JOSE), INC. California
- ---------------------------------------------------------------------------------------------------
CHEMCLEAR, INC. OF LOS ANGELES Delaware
- ---------------------------------------------------------------------------------------------------
USPCI, INC. OF GEORGIA Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN HOLDINGS, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WESTMORLAND), INC. (50%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BUTTONWILLOW), INC. (23%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (NE), INC. New Hampshire
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CROWLEY), INC. Louisiana
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LAPORTE), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TG), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ROEBUCK), INC. South Carolina
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TS), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (COLFAX), INC. Delaware
- ---------------------------------------------------------------------------------------------------
GSX CHEMICAL SERVICES OF OHIO, INC. Ohio
- ---------------------------------------------------------------------------------------------------
LEMC, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN CHEMICAL SERVICES, INC. Massachusetts
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ALTAIR), INC. Texas
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (FS), INC. (13%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BDT), INC. New York
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (FS), INC. (87%) Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (GS), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CLIVE), INC. Oklahoma
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WT), INC. Ohio
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN OSCO HOLDINGS, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (NASHVILLE), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BARTOW), INC. Florida
- ---------------------------------------------------------------------------------------------------
Page 1
Schedule 2
Guarantee and Collateral Agreement
SAFETY-KLEEN (CALIFORNIA), INC. California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BUTTONWILLOW), INC. (77%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WESTMORLAND), INC. (50%) California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CHATTANOOGA), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PECATONICA), INC. Illinois
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PINEWOOD), INC. South Carolina
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (WHITE CASTLE), INC. Colorado
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PUERTO RICO), INC. Puerto Rico
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BRIDGEPORT), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DEER PARK), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (BATON ROUGE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (PLAQUEMINE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CUSTOM TRANSPORT), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (LOS ANGELES), INC. California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (TIPTON), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (GLOUCESTER), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (DEER TRAIL), INC. Colorado
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (MT. PLEASANT), INC. Tennessee
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (MINNEAPOLIS), INC. Minnesota
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ARAGONITE), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (SUSSEX), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (ENCOTEC), INC. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN SYSTEMS, INC. Wisconsin
- ---------------------------------------------------------------------------------------------------
ECOGARD, INC. Delaware
- ---------------------------------------------------------------------------------------------------
SK EUROPE, INC. Nevada
- ---------------------------------------------------------------------------------------------------
DIRT MAGNET, INC. Colorado
- ---------------------------------------------------------------------------------------------------
THE MIDWAY GAS AND OIL CO. Colorado
- ---------------------------------------------------------------------------------------------------
ELGINT CORP. Nevada
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN ENVIROSYSTEMS COMPANY California
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN ENVIROSYSTEMS COMPANY OF PUERTO RICO, INC. Indiana
- ---------------------------------------------------------------------------------------------------
PETROCON, INC. Delaware
- ---------------------------------------------------------------------------------------------------
PHILLIPS ACQUISITION CORP. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN (CONSULTING), INC. (78.6349%) Delaware
- ---------------------------------------------------------------------------------------------------
SK REAL ESTATE INC. Illinois
- ---------------------------------------------------------------------------------- ----------------
SAFETY-KLEEN INTERNATIONAL, INC. Delaware
- ---------------------------------------------------------------------------------- ----------------
SAFETY-KLEEN OIL RECOVERY CO. Delaware
- ---------------------------------------------------------------------------------------------------
SAFETY-KLEEN OIL SERVICES, INC. Delaware
- ---------------------------------------------------------------------------------------------------
THE SOLVENTS RECOVERY SERVICE OF NEW JERSEY, INC. New Jersey
- ---------------------------------------------------------------------------------------------------
Page 2
SCHEDULE 3
LOCATION OF INVENTORY AND EQUIPMENT
(Intentionally omitted)
Schedule 4 to the Guarantee and Collateral Agreement
U.S. TRADEMARK REGISTRATIONS
REG. NO. TRADEMARK ISSUE DATE EXP. DATE GOODS/SERVICES
- ---------- ------------ ---------- ---------- -------------------------
918,839 SAFETY-KLEEN 08/24/71 08/24/01 Mechanical parts cleaning units comprising a
solvent reservoir, a parts sink and a solvent
circulating pump, and parts of such apparatus
939,055 SAFETY-KLEEN 07/25/72 07/25/02 Leasing of cleaning apparatus for cleaning
mechanical parts and components and periodic
renewal of solvent furnished with the apparatus
1,125,019 SK LOGO 09/11/79 09/11/09 Leasing of cleaning apparatus for cleaning
mechanical parts and components and periodic
renewal of solvent furnished with the apparatus
1
Schedule 4 to the Guarantee and Collateral Agreement
1,166,399 SAFETY-KLEEN 08/25/81 08/25/01 Hood and duct grease filters used with commercial
cooking equipment
1,183,410 SAFETY-KLEEN 12/29/81 12/29/01 Cleaning and degreasing solvent for industrial use
1,184,136 SAFETY-KLEEN 12/29/81 12/29/01 Services performed in cleaning and repair services
in the field of commercial cooking duct and hood
filters
1,205,741 SAFETY-KLEEN 08/17/82 08/17/02 Cleaning and recycling services - namely,
removing, cleaning and replacing solvent in parts
washers used in service, maintenance, repair and
manufacturing facilities
1,493,807 SAFETY-KLEEN 06/28/88 06/28/08 Cleaning preparations, namely, cream waxes, finish
glazes for vehicles, liquid cleaners and waxes for
vehicles, tire cleaners, carburetor and small
parts
2
Schedule 4 to the Guarantee and Collateral Agrement
cleaners, brake cleaners, glass cleaners, gneral
purpose cleaners, dry cleaning solvents, hand
cleaners, abrasive cleaners, upholstery shampoos,
and heavy duty liquid cleaning solution, compounds
or rubbing, polishing and cleaning vehicles
1,493,903 SAFETY-KLEEN 06/28/88 06/28/08 Sand, grit and bead blasting machines; mechanical
parts cleaning units comprising a cleaning liquid
reservoir, parts receptacle, and parts of such
apparatus
1,496,177 SAFETY-KLEEN 07/12/88 07/12/08 Cleaning and recycling services, namely, removing
waste solvent and solvent filters; cleaning and
recycling industrial solvents, hazardous liquids
and solvents used in the dry cleaning industry;
removing, cleaning and
3
Schedule 4 to the Guarantee and Collateral Agrement
recycling buffing pads; removing and disposing of
waste paint and paint thinners; leasing of sand,
grit and bead blasting apparatus; leasing of spray
gun equipment
1,496,478 SAFETY-KLEEN 07/19/88 07/19/08 Penetrating and lubricating compositions
1,502,737 SAFETY-KLEEN 09/06/88 09/06/08 Fillers for use in connection with repairing
automobile and truck bodies
4
Schedule 4 to the Guarantee and Collateral Agrement
1,502,824 SK LOGO SAFETY-KLEEN 09/06/88 09/06/08 Sand, grit and bead blasting machines; mechanical
parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating
pump, and parts of such apparatus; and mechanical
parts cleaning apparatus comprising a cleaning
liquid reservoir, parts receptacle and parts of
such apparatus
5
Schedule 4 to the Guarantee and Collateral Agrement
1,503,281 SK LOGO SAFETY-KLEEN 09/06/88 09/06/08 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent in parts washers
used in service, maintenance, repair and
manufacturing facilities; removing waste solvent
and solvent filters; cleaning and recycling
industrial solvents used in the dry cleaning
industry; removing, cleaning and recycling
industrial solvents and hazardous liquids;
removing cleaning and recycling buffing pads;
removing and disposing of waste paint and paint
thinners; leasing of sand, grit and bead blasting
apparatus; and leasing of spray gun equipment
1,507,691 SK LOGO SAFETY-KLEEN 10/11/88 10/11/08 Cleaning preparations, namely, cleaning and
degreasing solvents, cream waxes for vehicles,
finish glazes for
6
Schedule 4 to the Guarantee and Collateral Agrement
vehicles, liquid cleaners and waxes for vehicles,
carburetor and small parts cleaners, brake cleaners,
dry cleaning solvents, abrasive cleaners, heavy
duty liquid cleaning solutions; and compounds for
rubbing, polishing and cleaning vehicles
1,685,676 WE CARE...WE USE SAFETY- 05/05/92 05/05/02 Promoting public awareness of the need for
KLEEN'S ENVIRONMENTALLY responsible recycling of petroleum products and
FRIENDLY FLUID RECOVERY consultation related thereto.
SERVICE
1,691,114 FINISH LINE 06/09/92 06/09/02 Automobile fluids, namely, motor oil, engine oil
and lubricants
7
Schedule 4 to the Guarantee and Collateral Agreement
1,718,814 FIRST RECOVERY 09/22/92 09/22/02 Temporary collection and transportation services
of used motor oil and waste and recyclable
automobile chemicals; technical advisory services
in the field of temporary collection and
transportation of used motor vehicle fluids and
recyclable automotive chemicals
1,787,196 WE CARE & DESIGN 08/10/93 08/10/03 Promoting public awareness of the need for
responsible recycling of petroleum products and
consultation related thereto.
1,787,197 WE CARE 08/10/93 08/10/03 Promoting public awareness of the need for
responsible recycling of petroleum products and
consultation related thereto.
8
Schedule 4 to the Guarantee and Collateral Agreement
1,837,598 FIRST RECOVERY & DESIGN 05/31/94 05/31/04 Gasoline antifreeze; motor oil; industrial sink
for washing parts; air, gas, and oil filters for
land vehicles; temporary collection of used motor
oils and waste and recyclable automobile
chemicals; technical advisory services rendered in
the field of temporary collection and
transportation of used motor vehicle fluids and
recyclable automobile chemicals
1,861,305 SK SAFETY-KLEEN THE WE 11/01/94 11/01/04 Promoting public awareness of the need for
CARE COMPANY responsible recycling of petroleum products and
consultation related thereto
9
Schedule 4 to the Guarantee and Collateral Agreement
1,862,111 WE CARE SAFETY-KLEEN 11/08/94 11/08/04 Promoting public awareness of the need for
THE WE CARE COMPANY & responsible recycling of petroleum products and
DESIGN consultation related thereto
1,866,006 FIRST RECOVERY & DESIGN 12/06/94 12/06/04 Recycling, namely, the recycling of automotive
waste, hazardous waste, asphalt waste, automotive
chemicals and automotive parts
10
Schedule 4 to the Guarantee and Collateral Agreement
1,867,412 AMERICA'S PRIDE 12/13/94 12/13/04 Automotive vehicle lubricants; namely, motor oil,
refined motor oil, synthetic motor oil, automotive
oils, synthetic automotive oils, heavy duty motor
oil, non-detergent oil, synthetic diesel motor
oil, synthetic racing oils, two cycle motor oil,
multi-purpose gear oil, synthetic gear oil,
snowmobile oil, red chain oil, transmission fluid,
multi-purpose grease and water pump lubricant
1,867,929 THE ENVIRONMENTAL WAY 12/20/94 12/20/04 Motor oil, refined motor oil, automotive oils and
non-detergent motor oil
11
Schedule 4 to the Guarantee and Collateral Agreement
1,882,503 MISCELLANEOUS DESIGN 03/07/95 03/07/05 Collection used motor oils, waste and automotive
chemicals for recycling; transportation of used
motor oils, waste and automotive chemicals for
recycling
1,891,392 ENVIROSYSTEMS 04/25/95 04/25/05 Recyclable waste fluids treatment services, liquid
waste recycling services
1,897,259 CHECKERED FLAG 06/06/95 06/06/05 Motor oil and refined motor oil
1,905,251 AMERICA'S CHOICE & DESIGN 07/18/95 07/18/05 Automotive fluids prepared in whole or in part
from recycled or re-refined oils; namely, motor
oil, refined motor oil, non-detergent motor oil
1,905,252 AMERICA'S CHOICE 07/18/95 07/18/05 Automotive fluids prepared in whole or in part
from recycled or re-refined oils; namely, motor
oil, refined motor oil, non-detergent motor oil
12
Schedule 4 to the Guarantee and Collateral Agreement
1,974,438 NATIONAL 05/21/96 05/21/06 Motor oil
2,039,494 FIRST RECOVERY & DESIGN 02/18/97 02/18/07 Collection of used motor oils, waste and
automotive chemicals for recycling; transportation
of used motor oils, waste and automotive chemicals
via truck for recycling
2,096,368 AQUAWORKS 09/16/97 09/16/07 Aqueous cleaning solution for industrial cleaning
and degreasing
2,139,068 MISCELLANEOUS DESIGN 02/24/98 02/24/98 Collection of used motor oils, waste and
automotive chemicals for recycling; transportation
of used motor oils, waste and automotive chemicals
via truck for recycling
13
Schedule 4 to the Guarantee and Collateral Agreement
2,140,925 FIRSTRECOVERY 03/03/98 03/03/08 Collection of used motor oils, waste and
automotive chemicals for recycling; transportation
of used motor oils, waste and automotive chemicals
via truck for recycling
2,147,579 SUPERCAN 03/31/98 03/31/08 Silver recovery cartridges for use in silver
recovery machines
2,207,231 CONTINUED USE 12/01/98 12/01/08 Recycling hazardous waste materials and handling
hazardous waste materials
14
Schedule 4 to the Guarantee and Collateral Agreement
2,233,352 TEAM TOTAL ENVIRONMENTAL 03/23/99 03/23/09 Preparing business reports for others in the field
ACTIVITY MANAGEMENT of environmental compliance; environmental servoces,
namely hazardous and non-hazardous waste disposal and
cleaning service for others; transportation of waste
materials by truck, train or air and warehouse storage
for others; treatment of waste and recycling for others;
educational services, namely providing classes in the
field of hazardous and non-hazardous waste disposal;
environmental services; namely waste management,
hazardous waste management and sorting of waste and
recyclable material; reviewing company practices and
policies to assure compliance with environmental
laws and regulations
15
Schedule 4 to the Guarantee and Collateral Agreement
2,250,097 SILVER KLEEN 06/01/99 06/01/99 Machines for filtering and recovering silver
2,265,573 THE POWER OF WATER 07/27/99 07/27/09 Aqueous cleaning solutions for industrial cleaning
and degreasing
2,286,346 PROMAX 10/12/99 10/12/09 Cleaning preparations, namely, cleaners and degreasers
for removing oils, greases and dirt from automotive and
industrial parts
2,343,725 CABPAK 04/18/2000 04/18/2010 Waste management services, namely, management of
small waste containers from generation to disposal
16
Schedule 4 to the Guarantee and Collateral Agreement
TERM FOR TRADEMARKS REGISTERED PRIOR TO 11/16/89 - 20 YEARS
TERM FOR MARKS REGISTERED OR RENEWED AFTER 11/16/89 - 10 YEARS
17
Schedule 4 to the Guarantee and Collateral Agreement
PENDING TRADEMARK APPLICATIONS
SERIAL NO. FILING DATE TRADEMARK DESCRIPTION OF GOODS
75/632,313 02/02/99 RECOVERY IN MOTION Collection of used motor oils, waste and automotive chemicals for
recycling; transportation of used motor oils, waste and
automotive chemicals via truck for recycling
75/729,454 06/15/99 WE CARE Promoting public awareness of the need for responsible recycling
and consultation related thereto
75/729,455 06/15/99 WE CARE & DESIGN Promoting public awareness of the need for responsible recycling
and consultation related thereto
18
Schedule 4 to the Guarantee and Collateral Agreement
75/908,823 02/03/2000 JUST ASK Preparing business reports for others in the field of
environmental compliance; environmental services, namely
hazardous and non-hazardous waste disposal and cleaning service
for others; cleaning and recycling services, namely removing,
cleaning and replacing solvents in parts washers used in service,
maintenance, repair and manufacturing facilities; removing waste
solvent and solvent filters; cleaning and recycling industrial
solvents used in the drycleaning industry; removing, cleaning and
recycling industrial solvents and hazardous liquids; removing
cleaning and recycling buffing pads; removing and disposing ofd
waste paint and paint thinners; transportation of waste materials
by truck, train or air and warehouse storage for others;
treatment of waste and recycling for others; educational
services, namely, providing classes in the field of hazardous
and non-hazardous waste disposal; environmental services, namely,
waste management and sorting of waste and recyclable material
and reviewing
19
Schedule 4 to the Guarantee and Collateral Agreement
company practices and policies to assure compliance with
environmental laws and regulations and chemical analysis;
leasing of cleaning apparatus for cleaning mechanical parts
and components and periodic renewalof solvent furnished
with the apparatus.
78/908,749 02/03/2000 SAFETY-KLEEN Preparing business reports for others in the field of
environmental compliance; environmental services, namely,
hazardous and non-hazardous waste disposal and cleaning service
for others; transportation of waste materials by truck, train or
air and warehouse storage for others; treatment of waste and
recycling for others; educational services, namely, providing
classes in the field of hazardous and non-hazardous waste
disposal; environmental services, namely, waste management and
sorting of waste and recyclable material and reviewing company
practices and policies to assure compliance with environmental
laws and regulations and chemical analysis.
20
Schedule 4 to the Guarantee and Collateral Agreement
75/908,824 02/03/2000 SK LOGO Preparing business reports for others in the field of
environmental compliance; environmental services, namely,
hazardous and non-hazardous waste disposal and cleaning service
for others; transportation of waste materials by truck, train or
air and warehouse storage for others; treatment of waste and
recycling for others; educational services, namely, providing
classes in the field of hazardous and non-hazardous waste
disposal; environmental services, namely, waste management and
sorting of waste and recyclable material and reviewing company
practices and policies to assure compliance with environmental
laws and regulations and chemical analysis.
21
Schedule 4 to the Guarantee and Collateral Agreement
AUSTRALIA - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
B290,214 SAFETY-KLEEN 09/02/75 09/02/06 Metalwashing machinery and parts thereof
- -----------------------------------------------------------------------------------------------------------------------------------
A373,451 SAFETY-KLEEN 03/26/82 03/26/03 Leasing of cleaning apparatus including leasing of
cleaning apparatus for cleaning mechanical parts and
components, and such services in this class as are
incidental or ancillary to said leasing, including
leasing and supply of cleaning materials furnished
or to be furnished with the apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
A373,452 SK LOGO 03/26/82 03/26/03 Metalwashing machinery and parts thereof
- -----------------------------------------------------------------------------------------------------------------------------------
A373,453 SK LOGO 03/26/82 03/26/03 Parts cleaner and solvent exchange services
22
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
A544,732 SAFETY-KLEEN 10/26/90 10/26/07 Cleaning and degreasing solvents; finish glazes for
vehicles; liquid cleaners and waxes for vehicles;
carburetor and small parts cleaners, brake cleaners,
glass cleaners, general purpose cleaners; hand
cleaners; abrasive cleaners, heavy duty liquid cleaning
solutions; compounds for rubbing, polishing and
cleaning vehicles
- -----------------------------------------------------------------------------------------------------------------------------------
A544,733 SAFETY-KLEEN 10/26/90 10/26/07 Metal washing machinery and parts thereof
- -----------------------------------------------------------------------------------------------------------------------------------
A544,734 SAFETY-KLEEN 10/26/90 10/26/07 Parts cleaner and solvent exchange services
- -----------------------------------------------------------------------------------------------------------------------------------
A544,735 SK LOGO 10/26/90 10/26/07 Cleaning and degreasing solvents; finish glazes for
vehicles; liquid cleaners and waxes for vehicles;
carburetor and small parts cleaners, brake cleaners,
glass cleaners; general purpose cleaners; hand
cleaners; abrasive cleaners; heavy duty liquid cleaning
solutions; compounds for rubbing, polishing and
cleaning of vehicles
23
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
A544,736 SK LOGO 10/26/90 10/26/07 Parts cleaner and solvent exchange services
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
24
Schedule 4 to the Guarantee and Collateral Agreement
BENELUX COUNTRIES - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
334,880 SAFETY-KLEEN 09/18/75 09/18/05 Machines adapted to wash automotive, aircraft and
industrial parts
25
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
490,763 SK LOGO 11/21/90 11/21/00 Cleaning and degreasing solvents for industrial use;
sinks; cleaning apparatus for cleaning in service,
maintenance, repair and manufacturing facilities; parts
and components for cleaning units, including a solvent
reservoir and a solvent circulating pump, their parts
and accessories not included in other classes; leasing
of cleaning apparatus for cleaning mechanical parts and
components; maintenance and repair of these apparatus,
including cleaning and replacing solvent and parts
washers, cleaning services; recycling services
26
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
490,764 SAFETY-KLEEN 11/21/90 11/21/00 Cleaning and degreasing solvents for industrial use;
cleaning apparatus for cleaning in service,
maintenance, repair and manufacturing facilities;
leasing of cleaning apparatus for cleaning mechanical
parts and components; maintenance and repair of these
apparatus, including cleaning and replacing solvent and
parts washers; cleaning services; recycling services
- -----------------------------------------------------------------------------------------------------------------------------------
634,449 THE POWER OF WATER 02/12/98 02/12/2008 Aqueous cleaning solutions
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
INCLUDES BELGIUM, LUXEMBOURG AND THE NETHERLANDS
27
CANADA - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK REG. DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
271,222 SAFETY-KLEEN 07/23/82 07/23/12 Cleaning and degreasing solvents for parts washing
machines used in service, maintenance, repair and
manufacturing facilities, and cleaning emulsions and
solvents used in immersion type cleaners for cleaning
carburetors and other automotive, marine and
agricultural vehicle parts; cleaning and recycling
services, namely, periodically collecting, cleaning and
replacing solvent for the parts washers used in
service, maintenance, repair and manufacturing
facilities
28
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
271,223 SAFETY-KLEEN 07/23/82 07/23/12 Apparatus for cleaning of mechanical parts, including
components of automobiles, aircraft, industrial and
agricultural machines and parts thereof used in
manufacturing, service and repair facilities, and
brushes, filters, and replacement parts for such
apparatus; leasing of cleaning apparatus for cleaning
mechanical parts, providing solvent for such apparatus,
changing of such solvent and maintenance of such
mechanical parts washing machines
- -----------------------------------------------------------------------------------------------------------------------------------
348,226 AUTO-SPORT 11/25/88 11/25/03 Motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
362,111 ALL SEASONS 11/03/89 11/03/04 Motor oil, engine oil and multi-grade engine oil.
- -----------------------------------------------------------------------------------------------------------------------------------
362,524 AUTO PRIX 11/03/89 11/03/04 Motor oil, windshield washer, anti-freeze, radiator
anti-freeze.
- -----------------------------------------------------------------------------------------------------------------------------------
368,887 NATIONALE 05/25/90 05/25/05 Motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
386,039 FINISH LINE 06/28/91 06/28/08 Automobile fluids, namely motor oil, engine oil and
lubricants
- -----------------------------------------------------------------------------------------------------------------------------------
387,771 PREMIUM 1 & DESIGN 08/16/91 08/16/08 Motor oil and automotive oils
29
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
399,264 AUTO PRIX 06/19/92 06/19/07 Motor oil, transmission fluid, power steering fluid,
car washing formulations, antifreeze, antifreeze
windshield washer liquid.
- -----------------------------------------------------------------------------------------------------------------------------------
400,996 CANADA'S CHOICE 08/07/92 08/07/07 Automotive fluids, motor oil, refined motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
402,779 CANADA'S CHOICE & DESIGN 09/18/92 09/18/07 Motor oil and refined motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
404,047 PREMIUM 1 10/23/92 10/23/07 Motor oil and automotive oils
- -----------------------------------------------------------------------------------------------------------------------------------
405,434 FORMULA A 11/27/92 11/27/07 Motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
419,387 SAFETY-KLEEN 11/12/93 11/12/08 Automotive fluids, motor oil, refined motor oil,
automotive oils, heavy duty motor oil, non-detergent
motor oil, tractor motor oil, high performance motor
oil, two cycle motor oil, multipurpose gear oil, red
chain oil, transmission fluid, multi-purpose grease,
hydraulic oil, power steering fluid, undercoating oil
for prevention of rust corrosion, automatic
transmission fluids, industrial oils and universal
tractor fluids; and re-refined motor oil.
30
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
425,449 CHECKERED FLAG 03/25/94 03/25/09 Motor oil, refined motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
429,254 NATIONAL 06/24/94 06/24/09 Motor oil and diesel oil
- -----------------------------------------------------------------------------------------------------------------------------------
435,190 WE CARE & DESIGN 11/04/94 11/04/09 The promotion of public awareness of the need for
responsible recycling of petroleum products and
consultation related thereto
- -----------------------------------------------------------------------------------------------------------------------------------
439,636 FASTRAC 02/24/95 02/24/10 Motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
470,356 NOUS Y CROYONS & DESIGN 02/04/97 02/04/12 The promotion of public awareness of the need for
responsible recycling of petroleum products and
consultation related thereto
- -----------------------------------------------------------------------------------------------------------------------------------
477,708 WE CARE 06/12/97 06/12/12 The promotion of public awareness of the need for
responsible recycling of petroleum products and
consultation related thereto
- -----------------------------------------------------------------------------------------------------------------------------------
478,834 THE ENVIRONMENTAL WAY 07/22/97 07/22/12 Motor oil, refined motor oil
- -----------------------------------------------------------------------------------------------------------------------------------
501,990 NATIONAL XTR 10/07/98 10/07/13 Automotive fluids, motor oil, refined motor oil,
re-refined motor oil, automotive oils, heavy duty motor
oil, diesel truck motor oil, high performance motor
oil, transmission fluid, hydraulic oil, automatic
transmission fluids.
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
516,956 SK LOGO SAFETY-KLEEN 09/24/99 09/24/14 Cleaning and recycling service, namely, the leasing of
mechanical parts washers, used in service, maintenance,
repair and manufacturing facilities, providing solvent
for such apparatus, periodically collecting, cleaning
and replacing such solvent and the maintenance of such
mechanical parts washers; mechanical parts washers,
including washers for cleaning components of
automobiles, aircraft, industrial and agricultural
machines and parts thereof used in manufacturing,
service and repair facilities, and brushes, filters and
replacement parts for such parts washers; cleaning and
degreasing solvents for parts washing machines used in
service, maintenance and repair and manufacturing, and
cleaning emulsions and solvents used in immersion type
cleaners for cleaning carburetors and other automotive,
marine and agricultural vehicle parts; automotive
fluids and motor oil, including automotive oils, heavy
duty motor oil, non-detergent motor oil, motor oil for
severe service, diesel truck motor oil, tractor motor
oil, high performance motor oil, two cycle motor oil
and refined motor oil; multi-purpose gear oil,
snowmobile oil, red chain oil, transmission fluid,
multi-purpose grease, hydraulic oil, oil
- -----------------------------------------------------------------------------------------------------------------------------------
SK LOGO SAFETY- (Con't) for hydraulic jacks, power steering fluid, under-
KLEEN coating oil for prevention of rust corrosion, automatic
transmission fluids, industrial oils and universal tractor
fluids; anti-freeze, ethylene glycol, anti-freeze
windshield wash liquid; refined motor oil
Schedule 4 to the Guarantee and Collateral Agreement
517,866 SK LOGO 10/13/99 10/13/2014 Cleaning and recycling service, namely, the leasing of
mechanical parts washers, used in service, maintenance,
repair and manufacturing facilities, providing solvent
for such apparatus, periodically collecting, cleaning
and replacing such solvent and the maintenance of such
mechanical parts washers; mechanical parts washers,
including washers for cleaning components of
automobiles, aircraft, industrial and agricultural
machines and parts thereof used in manufacturing,
service and repair facilities, and brushes, filters and
replacement parts for such parts washers; cleaning and
degreasing solvents for parts washing machines used in
service, maintenance and repair and manufacturing, and
cleaning emulsions and solvents used in immersion type
cleaners for cleaning carburetors and other automotive,
marine and agricultural vehicle parts; automotive
fluids and motor oil, including automotive oils, heavy
duty motor oil, non-detergent motor oil, motor oil for
severe service, diesel truck motor oil, tractor motor
oil, high performance motor oil, two cycle motor oil
and refined motor oil; multi-purpose gear oil,
snowmobile oil, red chain oil, transmission fluid,
multi-purpose grease, hydraulic oil, oil for hydraulic
jacks, power steering fluid, undercoating oil for
prevention of rust corrosion, automatic transmission
fluids, industrial oils and universal tractor fluids;
anti-freeze, ethylene glycol, anti-freeze windshield
wash liquid; refined motor oil
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
524,493 THE POWER OF WATER 03/08/2000 03/08/2015 Aqueous cleaning solutions for industrial cleaning and
degreasing
===================================================================================================================================
RENEWABLE EVERY FIFTEEN (15) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
FRANCE - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
1,321,801 SAFETY-KLEEN 09/22/75 09/22/05 Machines, in particular machines for cleaning parts of
vehicles
- -----------------------------------------------------------------------------------------------------------------------------------
1,629,087 SAFETY-KLEEN 11/22/90 11/22/00 Cleaning and degreasing solvents for industrial use;
leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; cleaning and recycling
services, namely, removing, cleaning, and replacing
solvent and parts washers used in service, maintenance,
repair and manufacturing facilities
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
1,629,088 SK LOGO 11/22/90 11/22/00 Cleaning and degreasing solvents for industrial use;
leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; cleaning and recycling
services, namely, removing, cleaning and replacing
solvent and parts washers used in service, maintenance,
repair and manufacturing facilities; mechanical parts
cleaning units comprising a solvent reservoir, parts
sink and solvent circulating pump
- -----------------------------------------------------------------------------------------------------------------------------------
98/718,194 THE POWER OF WATER 02/16/98 02/16/08 Aqueous cleaning solution
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
GERMANY - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
965,607 SAFETY-KLEEN 10/09/75 10/09/05 Washing apparatus, especially for machine and vehicle
parts; parts of aforementioned washing apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
971,195 SK LOGO 09/14/76 09/14/06 Washing apparatus, especially for machine and vehicle
parts; parts of aforementioned washing apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
1,032,615 SK LOGO 07/08/81 07/08/01 Renting and leasing of cleaning and washing apparatus,
especially for machine parts and vehicle parts;
installation, repair and maintenance of cleaning and
washing apparatus; cleaning and recycling of used
cleaning agents and solvents for re-use in cleaning and
washing apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
2,027,900 SK LOGO 11/12/90 11/30/00 Chemical products for industrial purposes, particularly
solvents for cleaning and/or degreasing purposes;
removing, cleaning and recycling of cleaning agents and
solvents used in cleaners and washers for mechanical
parts; renting and leasing of cleaners for mechanical
parts as well as periodic renewal of cleaning agents
and solvents used in cleaners
- -----------------------------------------------------------------------------------------------------------------------------------
2,029,187 SAFETY-KLEEN 11/12/90 11/30/00 Chemical products for industrial purposes, particularly
solvents for cleaning and/or degreasing purposes;
removing cleaning and recycling of cleaning agents and
solvents used in cleaners and washers for mechanical
parts
- -----------------------------------------------------------------------------------------------------------------------------------
2,092,791 WE CARE & DESIGN 12/13/93 12/31/03 Promoting public awareness, in particular making people
aware of the need for recycling petroleum products as
well as consultation relating to the recycling of
petroleum products
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS FROM FILING DATE
Schedule 4 to the Guarantee and Collateral Agreement
HONG KONG
Registrations
===================================================================================================================================
REG. NO. TRADEMARK FILING DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
B02,458 SK LOGO 10/30/90 10/30/11 Cleaning, polishing, scouring and abrasive
preparations, including cleaning and degreasing
solvents for industrial use
- -----------------------------------------------------------------------------------------------------------------------------------
B06,426 SK LOGO 10/30/97 10/30/11 Cleaning, polishing, scouring and abrading machines and
apparatus, and parts and fittings therefor; reservoirs
and sinks for containing cleaning, polishing, scouring,
abrasive or solvent preparations and substances;
circulating pumps and parts and fittings for such pumps
for use with all the aforesaid goods
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
B09,374 SK LOGO 06/11/92 06/11/13 Cleaning services, washing services, maintenance
services, all for vehicle parts and mechanical parts,
and for pads used in vehicle paint refinishing ; rental
of cleaning apparatus, refurbishment of vehicles; and
all other services included in this class
- -----------------------------------------------------------------------------------------------------------------------------------
B00,585 SK LOGO 06/11/92 06/11/13 Services included in Class 40 for the recycling of
solvents and for the treatment and purification of
liquids
===================================================================================================================================
FIRST TERM SEVEN (7) YEARS FROM THE DATE OF FILING
SUBSEQUENT TERM FOURTEEN (14) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
ISRAEL
Pending Applications
====================================================================================================================================
SERIAL NO. MARK FILE DATE GOODS/SERVICES
====================================================================================================================================
73,921 SAFETY-KLEEN 10/13/89 Cleaning and degreasing solvent for industrial use
- ------------------------------------------------------------------------------------------------------------------------------------
73,922 SAFETY-KLEEN 10/13/89 Mechanical parts cleaning units comprising a solvent reservoir, a parts
sink and a solvent circulating pump, and parts of such apparatus
- ------------------------------------------------------------------------------------------------------------------------------------
73,923 SAFETY-KLEEN 10/13/89 Cleaning and recycling services, being removing, cleaning and replacing
solvents in parts washers used in service, maintenance, repair and
manufacturing facilities
- ------------------------------------------------------------------------------------------------------------------------------------
73,924 SAFETY-KLEEN 10/13/89 Leasing of cleaning apparatus for cleaning mechanical parts and components
and periodic renewal of solvent furnished with the apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
73,925 SK LOGO 10/13/89 Cleaning preparations, being cleaning and degreasing solvents, cream waxes
for vehicles, finishing glazes for vehicles, liquid cleaners and waxes for
vehicles, tire cleaners, carburetor and small parts cleaners, brake
cleaners, disinfectant cleaners,glass cleaners, vinyl top cleaners,
general purpose cleaners, dry cleaning solvents, hand cleaners, abrasive
cleaners, stainless steel cleaners, upholstery shampoos, heavy duty liquid
cleaning solutions, compounds for rubbing, polishing and cleaning vehicles
- ------------------------------------------------------------------------------------------------------------------------------------
73,926 SK LOGO 10/13/89 Sand, grit and bead blasting machines; mechanical parts cleaning units comprising
a solvent reservoir, a parts sink and a solvent circulating pump, and parts of
such apparatus; and mechanical parts cleaning apparatus comprising a cleaning
liquid reservoir, parts receptacle and parts of such apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
73,927 SK LOGO 10/13/89 Cleaning and recycling services, being removing, cleaning and replacing solvent
in parts washers used in service, maintenance, repair and manufacturing
facilities, removing waste solvent and solvent filters, cleaning and recycling
industrial solventd used in the dry cleaning industry; removing, cleaning and
recycling industrial solvents and hazardous liquids; removing cleaning and
recycling buffing pads; removing and disposing of waste paint and paint thinners;
leasing of sand, grit and bead blasting apparatus; leasing of spray gun equipment
- ------------------------------------------------------------------------------------------------------------------------------------
76,049 SK LOGO 04/19/90 Leasing of cleaning apparatus for cleaning mechanical parts and components anddic
periodic renewal of solvent furnished with the apparatus
====================================================================================================================================
FIRST TERM - SEVEN (7) YEARS FROM THE DATE OF FILING
SUBSEQUENT TERMS - FOURTEEN (14) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
ITALY - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
435,875 SAFETY-KLEEN 08/25/83 08/25/03 Devices for washing parts, namely, automotive,
aircraft, or industrial machine parts washing devices
- -----------------------------------------------------------------------------------------------------------------------------------
603,612 SK LOGO 12/13/90 12/13/00 Cleaning and degreasing solvents for industrial use;
leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; cleaning and recycling
services, namely, removing, cleaning and replacing
solvent and parts washers used in service, maintenance,
repair and manufacturing facilities; mechanical parts
cleaning units comprising a solvent reservoir, parts
sink and a solvent circulating pump and parts of such
apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
603,613 SAFETY-KLEEN 12/13/90 12/13/00 Cleaning and degreasing solvents for industrial use;
leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; cleaning and recycling
services, namely, removing, cleaning and replacing
solvent and parts washers used in service, maintenance,
repair and manufacturing facilities
- -----------------------------------------------------------------------------------------------------------------------------------
686,218 WE CARE & DESIGN 11/19/93 11/19/13 Promoting public awareness of the need for responsible
recycling of petroleum products and consultation
relating thereto
===================================================================================================================================
RENEWABLE EVERY TWENTY (20) YEARS FROM THE DATE OF FILING
PENDING APPLICATION
====================================================================================================================================
Serial No. Trademark Filing Date Goods/Services
====================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
TO98C000743 THE POWER OF WATER 03/06/98 Aqueous cleaning solution
====================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
Lebanon
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
REG DATE
===================================================================================================================================
081418 SAFETY-KLEEN 10/22/99 Cleaning and degreasing solvent; parts cleaning machines;
recycling of cleaning solvents; leasing of parts cleaning
machines
===================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
JAPAN - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE/REG. DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
1,427,758 SAFETY-KLEEN & SK LOGO 07/31/2000 07/31/2010 Machinery, parts washing machines and other goods
- -----------------------------------------------------------------------------------------------------------------------------------
2,016,836 SAFETY-KLEEN 01/26/88 01/26/08 Washing machines for machinery and other goods
- -----------------------------------------------------------------------------------------------------------------------------------
2,061,422 SAFETY-KLEEN 07/22/88 07/22/08 Soap and other goods
- -----------------------------------------------------------------------------------------------------------------------------------
2,065,474 SK LOGO 07/22/88 07/22/08 Soap and other goods
- -----------------------------------------------------------------------------------------------------------------------------------
3,362,364 SK LOGO 11/28/97 11/28/07 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers used
in service, maintenance, repair and manufacturing
facilities
- -----------------------------------------------------------------------------------------------------------------------------------
3,362,363 SAFETY-KLEEN 11/28/97 11/28/07 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers used
in service, maintenance, repair and manufacturing
facilities
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
4,013,326 SK LOGO 06/20/97 06/20/07 Leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
4,099,074 SAFETY-KLEEN 01/09/98 01/09/08 Leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus.
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
KOREA - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK REG. DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
183,883 SAFETY-KLEEN 11/25/89 11/25/09 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating pump,
and parts of such apparatus; sand, grit and bead
blasting machine; mechanical parts cleaning units
comprising a cleaning liquid reservoir, parts
receptacle and parts of such apparatus; solvent filter
for use in dry cleaning machine
- -----------------------------------------------------------------------------------------------------------------------------------
187,717 SK LOGO 01/29/90 01/29/10 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating pump,
and parts of such apparatus; sand, grit and bead
blasting machines; mechanical parts cleaning units
comprising a cleaning liquid reservoir, parts
receptacle and parts of such apparatus; solvent filter
for use in dry cleaning machines
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
192,627 SK LOGO 05/30/2000 05/30/2010 Cleaning and degreasing solvent for industrial use;
detergents for commercial and industrial use; liquid
cleaners for vehicles, carburetor and small parts
cleaners, brake cleaners, glass cleaners, vinyl top
cleaners, general purpose cleaners, dry cleaning
solvents, hand cleaners, abrasive cleaner, stainless
steel cleaners, upholstery shampoos and heavy duty
liquid cleaning solutions; compounds for rubbing,
polishing and cleaning vehicles
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
192,638 SAFETY-KLEEN 05/30/2000 05/30/2010 Cleaning and degreasing solvent for industrial use;
detergents for commercial and industrial use; liquid
cleaners for vehicles, carburetor and small parts
cleaners, brake cleaners, glass cleaners, vinyl top
cleaners, general purpose cleaners, dry cleaning
solvents, hand cleaners, abrasive cleaner, stainless
steel cleaners, upholstery shampoos and heavy duty
liquid cleaning solutions; compounds for rubbing
polishing, and cleaning vehicles
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
12,849 SAFETY-KLEEN 11/22/90 11/22/00 Leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; cleaning and recycling
services - namely, removing cleaning and replacing
solvent in parts washers used in service, maintenance,
repair and manufacturing facilities; cleaning and
recycling services - namely, removing waste solvent and
solvent filters, cleaning and recycling industrial
solvents, hazardous liquid and solvents used in the dry
cleaning industry; removing cleaning and recycling
buffing pads; removing and disposing of waste paint and
paint thinners
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
12,850 SK LOGO 11/22/90 11/22/00 Leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus; removing cleaning and
replacing solvents in parts washer used in service,
maintenance, repair and manufacturing facilities;
removing waste solvent and solvent filters, cleaning
and recycling industrial solvents, hazardous liquid and
solvents used in the dry cleaning industry; removing,
cleaning and recycling buffing pads; removing and
disposing of waste paint and paint thinners; leasing of
apparatus for cleaning kitchen utensils; and periodic
renewal and replacement of soaking solutions furnished
with kitchen utensil cleaning apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
437,661 SAFETY-KLEEN 02/09/98 02/09/08 Cleaning and degreasing solvent for industrial use
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
52,309 SAFETY-KLEEN 01/20/98 01/20/09 Leasing of cleaning apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
438569 SAFETY-KLEEN 01/20/98 01/20/09 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating pump,
and parts of such apparatus
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
MEXICO - REGISTRATIONS
====================================================================================================================================
REG. NO. TRADEMARK FILE DATE ISSUE DATE EXPIRY DATE GOODS/SERVICES
====================================================================================================================================
349,791 SK LOGO 11/16/87 06/28/88 11/16/02 Renting services of cleaning devices and periodic
renewal of solvents provided with the device
- ------------------------------------------------------------------------------------------------------------------------------------
350,065 SK LOGO 11/16/87 07/01/88 11/16/02 Chemical products with the exclusion of
medicines, pharmaceutical preparations, cosmetics
and perfumery products
- ------------------------------------------------------------------------------------------------------------------------------------
352,509 SK LOGO 11/16/87 09/13/88 11/16/02 Cutlery, machines or apparatus, tools and parts
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
353,167 SK LOGO 11/16/87 09/16/88 11/16/02 Cleaning and recycling services, namely,
removing, cleaning and replacing solvent in parts
washers used in service, maintenance, repair and
manufacturing facilities
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
355,324 SAFETY-KLEEN 11/16/87 11/16/88 11/16/02 Cutlery, machines or apparatus, tools and parts
thereof
- ------------------------------------------------------------------------------------------------------------------------------------
427,390 SAFETY-KLEEN 04/19/91 12/08/92 04/19/01 Chemical products used in industry, science,
photograph, agriculture, horticulture, forestry;
artificial and synthetic resins; plastics in the
form of powders, liquids or pastes, for
industrial use; manures (natural or artificial);
fire extinguishing compositions; tempering
substances and chemical preparations for
soldering; chemical substances for preserving
foodstuffs; tanning substances, adhesive
substances used in industry
- ------------------------------------------------------------------------------------------------------------------------------------
427,391 SAFETY-KLEEN 04/19/91 12/08/92 04/19/01 Cleaning apparatus rental services and solvents
periodical replacement provided with the apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
427,392 SAFETY-KLEEN 04/19/91 12/08/92 04/19/01 Cleaning and recycling services, to wit, removal,
cleaning and substitution of solvent in parts
washers used in service, maintenance, repair and
manufacturing facilities
====================================================================================================================================
FOR REGISTRATIONS ISSUED BEFORE JUNE 28, 1991, TERM IS FIVE (5) YEARS
FROM THE DATE OF FILING, RENEWABLE EVERY TEN (10) YEARS
FOR REGISTRATIONS ISSUED AFTER JUNE 28, 1991, TERM IS TEN (10) YEARS
FROM THE DATE OF FILING, RENEWABLE EVERY TEN (10) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
NEW ZEALAND - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
136,844 SK LOGO 04/22/81 04/22/02 Parts cleaning machinery
- -----------------------------------------------------------------------------------------------------------------------------------
136,845 SK LOGO 04/22/81 04/22/02 Chemical products used in industry, predominantly for
cleaning
- -----------------------------------------------------------------------------------------------------------------------------------
154,753 SAFETY-KLEEN 12/09/84 09/10/05 Chemical products used in industry predominantly for
cleaning
- -----------------------------------------------------------------------------------------------------------------------------------
154,754 SK LOGO 12/09/84 03/22/05 Chemical products used in industry predominantly for
cleaning
- -----------------------------------------------------------------------------------------------------------------------------------
154,755 SAFETY-KLEEN 12/09/84 09/10/05 Parts cleaning machinery
- -----------------------------------------------------------------------------------------------------------------------------------
154,756 SK LOGO 12/09/84 09/10/05 Parts cleaning machinery
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
206,338 SAFETY-KLEEN 11/19/90 11/19/11 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers used
in service, maintenance, and repair facilities; leasing
of cleaning apparatus for cleaning mechanical parts and
components and periodic renewal of solvent furnished
with the apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
206,340 SK LOGO 11/19/90 11/19/11 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers used
in service, maintenance, and repair facilities; leasing
of cleaning apparatus for cleaning mechanical parts and
components and periodic renewal of solvent furnished
with the apparatus
===================================================================================================================================
FIRST TERM - SEVEN (7) YEARS FROM THE DATE OF FILING
SUBSEQUENT TERM - FOURTEEN (14) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
PAKISTAN APPLICATIONS
====================================================================================================================================
SERIAL NO. MARK FILE DATE GOODS/SERVICES
====================================================================================================================================
104,261 SAFETY-KLEEN 10/11/89 Mechanical parts cleaning units comprising a solvent reservoir parts sink,
and a solvent circulating pump and parts of such apparatus
- ------------------------------------------------------------------------------------------------------------------------------------
104,263 SAFETY-KLEEN 10/11/89 Preparations for cleaning metal parts
====================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
PORTUGAL - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK ISSUE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
233,421 SAFETY-KLEEN 08/21/91 08/21/01 Cleaning and degreasing solvent for industrial use
- -----------------------------------------------------------------------------------------------------------------------------------
233,422 SAFETY-KLEEN 08/21/91 08/21/01 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink, and a solvent circulating
pump, and parts of such apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
233,423 SAFETY-KLEEN 08/21/91 08/21/09 Leasing of cleaning apparatus for cleaning mechanical
parts and components, and periodic renewal of solvent
furnished with apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
262,404 SK LOGO 08/20/92 08/20/02 Cleaning and degreasing solvent for industrial use
- -----------------------------------------------------------------------------------------------------------------------------------
262,405 SK LOGO 08/20/92 08/20/02 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating pump,
and parts of such apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
262,406 SK LOGO 02/20/92 08/20/02 Leasing and rental apparatus for cleaning mechanical
parts and components and periodic renewal of solvent
furnished with the apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
268,675 SK LOGO 01/06/93 01/06/03 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers using
service, maintenance, repair and manufacturing
facilities
- -----------------------------------------------------------------------------------------------------------------------------------
273,094 SAFETY-KLEEN 03/26/93 03/26/03 Cleaning and recycling services, namely, removing,
cleaning and replacing solvent and parts washers using
service, maintenance, repair and manufacturing
facilities
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS FROM THE DATE OF REGISTRATION
Schedule 4 to the Guarantee and Collateral Agreement
SINGAPORE REGISTRATION
===================================================================================================================================
REG. NO. TRADEMARK ISSUE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
6439/90 SAFETY-KLEEN 09/18/90 09/18/07 Industrial cleaning machines; oil filters for engines;
parts and fittings for all the aforesaid goods
- -----------------------------------------------------------------------------------------------------------------------------------
6441/90 SAFETY-KLEEN & SK LOGO 09/18/90 09/18/07 Industrial cleaning machines/ oil filters for engines;
parts and fittings for all the aforesaid goods
- -----------------------------------------------------------------------------------------------------------------------------------
B7480/92 SAFETY-KLEEN and SK LOGO 09/30/92 09/30/02 Cleaning services, washing services, maintenance
services, all for vehicle parts, mechanical parts, pads
used in vehicle paint finishing, and for filters used
in restaurant kitchen installations; refurbishment of
vehicles
===================================================================================================================================
PENDING APPLICATIONS
Schedule 4 to the Guarantee and Collateral Agreement
=================================================================================================================================
SERIAL NO. MARK FILE DATE GOODS/SERVICES
=================================================================================================================================
S7481/92 SAFETY-KLEEN and SK LOGO 09/30/92 Services for the rental of machines and apparatus
=================================================================================================================================
RENEWABLE SEVEN (7) YEARS FROM DATE OF APPLICATION
AND AT FOURTEEN (14) YEAR INTERVALS THEREAFTER
Schedule 4 to the Guarantee and Collateral Agreement
SPAIN - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK ISSUE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
1,115,714 SAFETY-KLEEN 10/05/87 10/05/07 Mechanical parts cleaning units comprising a solvent
reservoir, a parts sink and a solvent circulating pump,
and parts of such apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
1,115,715 SAFETY-KLEEN 03/17/86 03/17/06 Leasing services of cleaning apparatus for cleaning
mechanical parts and components; and periodic renewal
of solvent of cleaning apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
1,115,716 SAFETY-KLEEN 10/20/87 10/20/07 Cleaning and degreasing preparations for industrial use
- -----------------------------------------------------------------------------------------------------------------------------------
1,605,913 SK LOGO 12/13/90 12/13/00 Machines and machine tools, namely, cleaning machines
(Filing date)
- -----------------------------------------------------------------------------------------------------------------------------------
1,605,914 SK LOGO 12/13/90 12/13/00 Leasing of cleaning apparatus for cleaning mechanical
(Filing date) parts and components and periodic renewal of solvent
furnished with the apparatus
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
1,605,915 SK LOGO 12/13/90 12/13/00 Cleaning and recycling services - namely, removing,
(Filing date) cleaning and replacing solvent in parts washers used in
service, maintenance, repair and manufacturing
facilities
- -----------------------------------------------------------------------------------------------------------------------------------
1,793,171 WE CARE LOGO 12/03/93 12/13/03 Advertising and publicity services regarding the
(Filing date) services listed in Spanish Trademarks Nos.
1,115,714/715/716 and 1,605,916
- -----------------------------------------------------------------------------------------------------------------------------------
2,059,514 SK LOGO 11/22/96 11/22/06 Cleaning and degreasing preparations for industrial use
- -----------------------------------------------------------------------------------------------------------------------------------
2,059,515 SAFETY-KLEEN 11/22/96 11/22/06 Material treatment services, especially cleaning and
recycling service of solvent of cleaning apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
2,148,516 THE POWER OF WATER 03/09/98 03/09/08 Aqueous cleaning solutions
===================================================================================================================================
REGISTRATIONS ISSUED BEFORE MAY 12, 1989 HAVE A TERM OF TWENTY (20) YEARS
FROM THE ISSUE DATE, NOW RENEWABLE EVERY TEN (10) YEARS COUNTED FROM THE FILING DATE
APPLICATIONS FILED OR GRANTED AFTER 05/12/89 -
RENEWABLE EVERY TEN (10) YEARS FROM DATE OF FILING
Schedule 4 to the Guarantee and Collateral Agreement
TAIWAN- REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
48,002 SAFETY-KLEEN 10/16/90 10/15/00 Leasing of cleaning apparatus for cleaning mechanical
parts and components
- -----------------------------------------------------------------------------------------------------------------------------------
48,003 SK LOGO 10/16/90 10/15/00 Leasing of cleaning apparatus for cleaning mechanical
parts and components
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
TURKEY - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
114,388 SK LOGO 08/28/89 08/28/09 Cleaning and degreasing solvent for industrial use;
mechanical parts cleaning units comprising a solvent
reservoir, parts sink, and a solvent circulating pump
and parts of such apparatus
- -----------------------------------------------------------------------------------------------------------------------------------
114,567 SAFETY-KLEEN 08/28/89 08/28/09 Cleaning and degreasing solvent for industrial use;
mechanical parts cleaning units comprising a solvent
reservoir, parts sink, and a solvent circulating pump
and parts of such apparatus
===================================================================================================================================
RENEWABLE EVERY TEN (10) YEARS FROM FILING DATE
SERVICE MARKS ARE NOT REGISTER ABLE
Schedule 4 to the Guarantee and Collateral Agreement
UNITED KINGDOM - REGISTRATIONS
===================================================================================================================================
REG. NO. TRADEMARK FILE DATE EXPIRY DATE GOODS/SERVICES
===================================================================================================================================
1,225,688 SK LOGO 09/01/84 09/01/05 Solvents for use in the cleaning of machines; cleaning
preparations; degreasing preparations (not for use in
industrial or manufacturing processes)
- -----------------------------------------------------------------------------------------------------------------------------------
1,225,689 SK LOGO 09/01/84 09/01/05 Industrial cleaning machines (other than vacuum
cleaners); oil filters for engines; parts and fittings
included in Class 7 for all the aforesaid goods
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
1,274,974 SK LOGO 10/01/86 10/01/07 Cleaning services, washing services and maintenance
services all for vehicles parts, mechanical parts, pads
used in vehicle paint refinishing and for filters used
in restaurant kitchen installations; rental of cleaning
apparatus, refurbishment of vehicles; all included in
Class 37
- -----------------------------------------------------------------------------------------------------------------------------------
1,288,712 SK LOGO 10/01/86 10/01/07 Services included in Class 40 for the recycling of
solvents and for the treatment and purification of
liquids
- -----------------------------------------------------------------------------------------------------------------------------------
1,225,686 SAFETY-KLEEN & SK LOGO 09/01/84 09/01/05 Solvents for use in cleaning of machines; cleaning
preparations; degreasing preparations (not for use in
industrial or manufacturing processes)
- -----------------------------------------------------------------------------------------------------------------------------------
1,225,687 SAFETY-KLEEN & SK LOGO 09/01/84 09/01/05 Industrial cleaning machines (other than vacuum
cleaners); oil filters for engines; parts and fittings
included in Class 7 for all of the aforesaid goods
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
1,274,975 SAFETY-KLEEN & SK LOGO 10/01/86 10/01/07 Cleaning services, washing services, maintenance
services, all for vehicle parts, mechanical parts, pads
used in vehicle paint refinishing, and for filters used
in restaurant kitchen installations; rental of cleaning
apparatus; refurbishment of vehicles
- -----------------------------------------------------------------------------------------------------------------------------------
1,288,711 SAFETY-KLEEN & SK LOGO 10/01/86 10/01/07 Recycling of solvents; treatment and purification of
liquids
- -----------------------------------------------------------------------------------------------------------------------------------
1,472,921 SAFETY-KLEEN (Stylized) 08/09/91 08/09/08 Solvents for use in the cleaning of machines; cleaning
preparations; degreasing preparations
- -----------------------------------------------------------------------------------------------------------------------------------
1,472,922 SAFETY-KLEEN (Stylized) 08/09/91 08/09/08 Industrial cleaning machines; oil filters for engines;
parts and fittings for all the aforesaid goods
- -----------------------------------------------------------------------------------------------------------------------------------
1,472,923 SAFETY-KLEEN (Stylized) 08/09/91 08/09/08 Cleaning, washing, and maintenance of vehicle parts,
mechanical parts, pads used in vehicle paint
refinishing and of filters used in restaurant kitchen
installations; rental of cleaning apparatus;
refurbishment of vehicles
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
1,472,924 SAFETY-KLEEN (Stylized) 08/09/91 08/09/08 Recycling of solvents; treatment and purification of
liquids
===================================================================================================================================
FIRST TERM - SEVEN (7) YEARS FROM THE DATE OF FILING
SUBSEQUENT TERM - FOURTEEN (14) YEARS
Schedule 4 to the Guarantee and Collateral Agreement
U.S. Patents
====================================================================================================================================
4,462,415 07/31/84 11/15/02 Otzen Parts Cleaner This is the bench top parts cleaner patent. It
Adapted for contains numerous claims to all aspects of the
Simplified Service apparatus, including the associated container.
- ------------------------------------------------------------------------------------------------------------------------------------
4,623,448 11/18/86 03/12/05 O'Connell, Removing Claims process and apparatus to remove halogenated
Wozniak Halogen-ated polyphenols. Pressurized hydrogen gas is injected
Polyphenyl flowing oil stock, the resulting blend flows through
Materials from into guard reactor and then through a catalyst bed
Used Oil Products to a dehalogenate.
- ------------------------------------------------------------------------------------------------------------------------------------
4,823,820 04/25/89 07/28/07 Larson & Solvent Vapor Spray gun cleaners having a collar surrounding the
Justice Collection & basin for vapor pickup. Claims include the collar
Evacuation System generally, as well as in association with specific
forms of gun cleaners.
Schedule 4 to the Guarantee and Collateral Agreement
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
- ------------------------------------------------------------------------------------------------------------------------------------
4,834,868 05/30/89 01/29/08 Lappin Neutralizing A process which injects a flow of strong base and
Oxidation Product rerefined oil into a vacuum distilling tower,
Components in followed Refining of Used by condensing using a
Continuous Oil convoluted surface. Accomplishesneutralization of
Stocks e.g. carboxylic acids.
- ------------------------------------------------------------------------------------------------------------------------------------
5,138,735 8/18/92 03/18/11 Kusz, Voss, Buffing Pad and This patent covers quick-release attachment systems
Iliadis Attachment System with inherent safety features.
Therefor
- -----------------------------------------------------------------------------------------------------------------------------------
5,213,119 05/25/93 05/25/10 Kusz, Justice Recirculating Type This application covers the spray gun cleaner system
Spray Gun Cleaner with two solvent receptacles, two pumps and two
nozzles arranged so that all used solvent
accumulates in one vessel, to prevent contamination
of the cleanest solvent which is used for final
rinse only.
- ------------------------------------------------------------------------------------------------------------------------------------
5,255,492 10/26/93 07/19/11 Larson Detachable Cover Patent contains claims to method of using the EDDL
and Drum Liner for and also on waste tracking using bar code, etc., on
Storage and the liners
Trans-port
of Controlled
Substances
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
5,318,056 06/07/94 06/07/11 Kusz & Justice Solvent Second patent directed to spray gun cleaner having
Recirculating broader claims
Spray Gun Cleaner
- ------------------------------------------------------------------------------------------------------------------------------------
5,350,079 09/27/94 03/01/13 Larson, Safety Cover and A moveable safety cover for use with an associated
Danowski, Voss Operator Assembly drum unit
for Open Top Drum
- ------------------------------------------------------------------------------------------------------------------------------------
5,353,951 10/11/94 08/11/12 Kusz, Cuveas, Serviceable A serviceable storage and transport container for
Storage and use with anti-freeze solutions
Transport Container
- ------------------------------------------------------------------------------------------------------------------------------------
5,435,458 07/25/95 09/18/12 Bishop Chemical Spill Directed to a collection device used in conjunction
Containment with railroad transported shipping containers to
Apparatus collect chemicals that may spill during loading
and unloading of railroad shipping containers;
currently licensed to Merrill Bishop
- ------------------------------------------------------------------------------------------------------------------------------------
5,445,038 08/29/95 12/06/13 Mueller Apparatus for TCLP Core Sampler
Sampling
Fluid in
Containers
- ------------------------------------------------------------------------------------------------------------------------------------
5,478,465 12/26/95 03/30/14 Larson, Composite Liquid Cross-flow filter
Danowski, Filter
Jacoby
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
5,582,743 12/10/96 03/30/14 Larson, Composite Liquid Cross-flow filter (divisional patent)
Danowski, Filter
Jacoby
- ------------------------------------------------------------------------------------------------------------------------------------
5,598,861 02/04/97 03/07/15 Danowski, Parts Washer with Parallel plate separator
Dvorak Solvent Flow
Control
- ------------------------------------------------------------------------------------------------------------------------------------
5,698,774 12/16/97 08/30/16 Osmanski Field Test Method A method and several apparatus for determining the
for Determining concentration of oil in a petroleum hydrocarbon
Oil in Solvent solvent. A few drops of solvent are placed on a
two-layer sheet of paper and evaporated. A telltale
stain indicates the approximate concentration of oil
in the solvent
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
5,710,373 01/20/98 02/18/17 Osmanski Test Chart & An apparatus and method for determining the
Method concentration of oil and contaminants in solvent. A
test chart includes viewing windows representing,
respectively, increasing concentrations of oil and
increasing concentrations of particulates. the
specimen is matched to the chart (and clarifying
agent may be added to the solvent as a separate
step) to determine the nature and extent of solvent
contamination.
- ------------------------------------------------------------------------------------------------------------------------------------
5,720,308 02/24/98 03/07/15 Danowski, Parts Washer with Parallel plate separator (CIP)
Dvorak Solvent Flow
Control
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
5,776,881 07/07/98 07/03/16 Kiany Enhanced Solvent A treated solvent cleaning composition and method.
Compositions The solvent component is primarily aliphatic
(Continuation) hydrocarbons (less than 25% aromatic). The
additive is 0.1 to 10 parts C6-C14 alcohols, diols,
polyols, glycol ethers and mixtures thereof. The
method includes treating the solvent with the
additive to create a supernatant layer of increased
clarity and a lower layer having the bulk of the
impurities therein.
- ------------------------------------------------------------------------------------------------------------------------------------
5,955,410 09/21/99 09/21/16 Dingess & Cleaning Low toxicity cleaning composition which uses
Osmanski Compositions and propylene glycol and other components
Methods
- ------------------------------------------------------------------------------------------------------------------------------------
6,004,434 12/21/99 07/07/14 Kiany, Blair, Method of Recycling
O'Donnell, and Cleaning Solvent
Kunkel
====================================================================================================================================
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
PENDING U.S. PATENT APPLICATIONS
SERIAL NO. FILING DATE INVENTOR TITLE
08/271,190 07/07/94 Kiany, Blair, L'Donnell, Kunkel Compositions and Methods for Treating Cleaning Solvents
09/470,872 12/23/99 Anderson, Danowski, Jacoby Oil Skimmer
* Not subject to maintenance fees.
Schedule 4 to the Guarantee and Collateral Agreement
CANADIAN PATENTS
===================================================================================================================================
PATENT NO. ISSUE DATE TITLE CORRESPONDING US
PATENT/ APPLN NO.
===================================================================================================================================
1,132,882 10/05/82 Immersion Cleaner 4,160,603
- -----------------------------------------------------------------------------------------------------------------------------------
1,148,067 06/14/83 Accessory for Parts Cleaner 4,261,378
- -----------------------------------------------------------------------------------------------------------------------------------
1,204,367 05/13/86 Parts Cleaner Adapted for Simplified Service 4,462,415
- -----------------------------------------------------------------------------------------------------------------------------------
1,250,208 02/21/89 Degreasing Apparatus 4,637,413
- -----------------------------------------------------------------------------------------------------------------------------------
1,298,759 03/16/87 Recirculating Type Spray Gun Cleaner 5,213,119
- -----------------------------------------------------------------------------------------------------------------------------------
1,324,334 11/16/93 Neutralizing Oxidation Product Components 4,834,868
in Continuous Refining of Used Motor OilStocks
- -----------------------------------------------------------------------------------------------------------------------------------
2,170,363 12/07/99 Enhanced Solvent Composition 5,776,881
- -----------------------------------------------------------------------------------------------------------------------------------
2,170,364 12/07/99 Method of Recycling Cleaning Solvent 6,004,434
===================================================================================================================================
PENDING CANADIAN PATENT APPLICATIONS
===================================================================================================================================
APPLN. NO. FILING DATE TITLE CORRESPONDING US
PATENT/ APPLN NO.
===================================================================================================================================
2,061,946-5 02/27/92 Buffing Pad and Attachment System Therefor 5,138,735
- -----------------------------------------------------------------------------------------------------------------------------------
2,170,365 07/06/95 Compositions and Methods for Treating Cleaning 08/271,190
Solvents
- -----------------------------------------------------------------------------------------------------------------------------------
2,171,132 03/06/96 Parts Washer and Solvent Flow Control 5,598,861 & 5,720,373
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
2,213,983 08/25/97 Apparatus and Method for Determining Concentrations 5,698,774
of Oil or Other Non-Volatile Contaminants in
Cleaning Solvents
===================================================================================================================================
CANADIAN PATENTS EXPIRE 17 YEARS FROM THE DATE OF ISSUE
Schedule 4 to the Guarantee and Collateral Agreement
JAPANESE PATENT APPLICATION
====================================================================================================================================
SERIAL NO. FILING DATE TITLE CORRESPONDING US
PATENT/ APPLN NO.
====================================================================================================================================
7-525,846 03/30/95 Composite Liquid Filter 5,478,465 & 5,582,743
====================================================================================================================================
JAPANESE PATENTS EXPIRE 15 YEARS FROM THE DATE OF GRANT,
NOT TO EXCEED 20 YEARS FROM THE FILING DATE
MEXICAN PATENT
====================================================================================================================================
PATENT NO. ISSUE DATE TITLE CORRESPONDING US
PATENT/APPLN NO.
====================================================================================================================================
180,918 03/01/96 Detachable Cover and Drum Liner for Storage and 5,154,308
Transport of Controlled Substances
====================================================================================================================================
MEXICAN PATENTS EXPIRE 14 YEARS FROM THE DATE OF GRANT
Schedule 4 to the Guarantee and Collateral Agreement
LAIDLAW INTELLECTUAL PROPERTY
TRADEMARKS
====================================================================================================================================
Reg. No. Trademark Issue Date Exp. Date Goods/Services
====================================================================================================================================
1,894,484 EARTH ACADEMY 05/06/95 05/06/05 Educational services; namely, conducting classes
and seminars dealing with solid and hazardous
waste management and reduction; video tapes
dealing with solid and hazardous waste management
and reduction; books and brochures dealing with
solid and hazardous waste management and reduction;
and posters and stickers
- ------------------------------------------------------------------------------------------------------------------------------------
1,908,234 EARTH ACADEMY & DESIGN 08/01/95 08/01/05 Video tapes dealing with solid and hazardous waste
management and reduction; coloring books and printed
brochures dealing with solid and hazardous waste
management and reduction; and stickers; T-shirts;
education services, namely conducting classes and
seminars dealing with solid and hazardous waste
management andreduction; ornamental novelty buttons
====================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
PATENTS
====================================================================================================================================
Patent No. Issued Expires Title
====================================================================================================================================
4,464,081 08/07/84 06/29/03 Process and Structure for Storing and Isolating Hazardous Waste
- ------------------------------------------------------------------------------------------------------------------------------------
4,637,928 01/20/87 01/20/04 Method and Apparatus for Neutralizing Reactive Material Such as Batteries
- ------------------------------------------------------------------------------------------------------------------------------------
5,009,266 04/23/91 04/23/08 Method for In Situ Contaminant Extraction from Soil
- ------------------------------------------------------------------------------------------------------------------------------------
5,040,900 08/20/91 08/20/08 Sludge stabilizing method and apparatus
====================================================================================================================================
Schedule 4 to the Guarantee and Collateral Agreement
Itex Environmental Services
Patent Applications
Updated December 1999
- -----------------------------------------------------------------------------------------------------------------------------------
File No. Serial No. Title Status
Country Filing Date
- -----------------------------------------------------------------------------------------------------------------------------------
119931-001028 09/080,062 Method for Treatment of Dredged Response to Office Action Due August 24, 2000
United States May 15, 1998 Materials to Form a Structural
Continuation of Fill
Provisional Appln.
60/046,616
(File No. 119931-
001025)
- -----------------------------------------------------------------------------------------------------------------------------------
119931-002025 2,078,889 Apparatus for Mixing Solid and Maintenance Fee Due January 8, 2000
Canada January 8, 1991 Semi-Solid Wastes with Additives Final Due January 8, 2001
- -----------------------------------------------------------------------------------------------------------------------------------
Schedule 4 to the Guarantee and Collateral Agreement
Issued Patents
- ------------------------------------------------------------------------------------------------------------------------------------
File No. Patent No. Title Status
Country Issue Date
====================================================================================================================================
119931-001013 5,007,590 Apparatus for Mixing Solid or Semi-Solid Maintenance Fee Due October 16, 2002
United States April 16, 1991 Wastes With Additives
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001011 5,028,010 Apparatus for Mixing Solid or Semi-Solid Maintenance Fee due January 2, 2003
United States July 02, 1991 Wastes With Additives
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001010 5,319,176 Plasma Arc Decomposition of Hazardous Maintenance Fee Due December 7, 2001
United States June 7, 1994 Wastes IntoVitrified Solids and Non-
Hazardous Gasses
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001012 5,353,998 Method for Mixing Solid or Semi-Solid Maintenance Fee Due April 11, 2002
United States October 11, 1994 Wastes With Additives
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001017 5,451,738 Plasma Arc Decomposition of Hazardous Maintenance Fee Due March 19, 2003
United States September 19, 1995 Wastes Into Vitrified Solids and Non-
Hazardous Gasses
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001018 5,541,386 Plasma Arc Decomposition of Hazardous Maintenance Fee Due January 30, 2000
United States July 30, 1996 Wastes Into Vitrified Solids and Non- Paid with surcharge
Continuation of Hazardous Gasses
1800-2017
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001019 5,542,614 Processing of Waste Material Maintenance Fee Due February 6, 2000
United States August 6, 1996 Paid with surcharge
Schedule 4 to the Guarantee and Collateral Agreement
- -----------------------------------------------------------------------------------------------------------------------------------
119931-001024 5,794,862 Processing of Waste Material Maintenance Fee Due February 18, 2002
United States August 18, 1998
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001022 5,931,605 Remediation of Earthen Material Maintenance Fee Due February 3, 2003
United States August 3, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
119931-001016 6,017,169 Remediation of Earthen Material Maintenance Fee Due July 25, 2003
United States January 25, 2000
- ------------------------------------------------------------------------------------------------------------------------------------
119931-002029 179455 Method and Apparatus for Mixing Solid Renewal Fee Due January 2000
Mexico August 31, 1995 and Semi-Solid Wastes with Additives
- ------------------------------------------------------------------------------------------------------------------------------------
119931-2022 179968 Method and Apparatus for Mixing Solid Maintenance Fee Due January 2000
Mexico November 3, 1995 or Semi Solid Wastes With Additives
- ------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 4 CONTINUED
Trade Mark Licensing Agreement between Safety-Kleen Systems, Inc. and Safety-
Kleen UK Limited dated December 23, 1998
Short Form License Agreement between Safety-Kleen UK Limited and Safety-Kleen
Corp. (to be executed).
Non-Exclusive Tehnology License Agreement dated January 1, 1999 by Church &
Dwight Co., Inc. and The ArmaKleen Company (a partnership between Church &
Dwight Co. and Safety-Kleen Services, Inc.
Exclusive Purchase Agreement dated December 28, 1999 by and between SpinTek
Filtration, Inc. and Safety-Kleen Services, Inc.
Non-Exclusive Trademark License dated June 23, 1997 by and between Safety-Kleen
Corp. (now known as Safety-Kleen Systems, Inc.) as Licensor and Minnesota Mining
and Manufacturing Company as Licensee for the trademark and logo We Care.
Non-Exclusive Trademark License dated May 1, 1995 by and between Safety-Kleen
Corp. (now known as Safety-Kleen Systems, Inc.) as Licensor and Xerox
Engineering Systems Canada as Licensee for the trademark and logo We Care.
Non-Exclusive Trademark License by and between Safety-Kleen Systems, Inc. as
Licensor and Nichibei Koyu Co. Limited as Licensee for the trademark and logo
Safety-Kleen.
Safety-Kleen licenses various software programs from licensors under typical
license agreements for its day to day operations (including but not limited to
MicroSoft Office, Lotus Notes, PeopleSoft, and so on).
Interlink Computer Sciences Inn. S/W License Agmt File# 9211273 Box 1511
39-02-01-07/08
Sandra Wilkes License Agreement File#9211434 Box 1512 39-02-05-
15/16
Butler Corp Sales & License Agreement File#9211648 Box 1512
Box 1664 45-02-05-01/02
Trademark License Agmts File#9614865 Box 1542
38-02-03-15/16
Korea License Agreement File#9614867 Box 1542
Japan License Agmt File#4814868 Box 1542
OSI Software License Box 1647 45-03-05-13/14
Rockwell Intl License Box 1647
Korea / Japan / Israel License Files Box 1650 53-03-05-05/06
ASCAP Music License Box 1656 45-01-05-03/04
Foreign Licensed Operations Box 1669 53-04-05-09/10
European License Agmts & Pacific Rim & Misc License Box 1692 27-13-
03-05/06
(Japanese) License Agmt dtd 10/9/86 file 185 Box 1787
Schedule 5
----------
PREPETITION REAL ESTATE COLLATERAL
3985 Research Park Drive, Ann Arbor, Michigan
Approximately 3.685 acres in 11 parcels of land located seven (7) miles east of
Mojave in Kern County, California
Elk Grove Village, Illinois (Cook County)
Elgin, Illinois (Kane County - Safety-Kleen Headquarters)
Elgin, Illinois (Cook County - vacant land)
SAFETY-KLEEN SERVICES, INC.
EXHIBIT B
Form of Borrowing Base Certificate*
Page 1 of 3
Week Ended ______________, ____
BORROWING BASE AND EXCESS AVAILABILITY (PER DETAILED CALCULATIONS)
Collections Availability (Line C in Section I) $
-------------
Sales Availability (Line E in Section II) $
-------------
Availability (the lesser of Collections Availability
and Sales Availability) $
=============
OFFICER'S CERTIFICATION
Pursuant to the Amdended and Restated Debtor in Possession Credit Agreement,
initally dated as of June 11, 2000 amdended 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 from time to time party thereto (the
"LENDERS"), The Toronto-Dominion Bank, Houston Agency, as letter of credit
issuing bank, Toronto Dominion (Texas), Inc, as administrative agent (the
"GENERAL ADMINISTRATIVE AGENT"), and The CIT Group/Business Credit, Inc., as
collateral agent and underwriter, the undersigned Responsible Officer of the
Borrower certifies that the information provided herein is accurate based on the
accounting records of the Borrower and its Subsidiaries. Unless otherwise
defined herein, capitalized terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
SAFETY-KLEEN SERVICES, INC.
By:---------------------------
Name:
Title:
- ----------------
*/ Prior to the date the Final Order is entered, this Certificate may be pre-
pared using minimum, as opposed to exact, numbers, so long as such calculations
are reviewed and approved by the Underwriters or their representatives.
SAFETY-KLEEN SERVICES, INC.
EXHIBIT B
Form of Borrowing Base Certificate*
Page 2 of 3
Week Ended ______________, ____
I. CALCULATION OF FIVE-WEEK COLLECTIONS FROM ELIGIBLE ACCOUNT DEBTORS
A. Aggregate collections from all account debtors for
the five-week period ending on _____ ___, _____ $
-------------
B. Less exclusions: $
-------------
(a) Collections from account debtors that are $
Affiliates or employees of Loan Parties -------------
$
(b) Collections from any account debtor which has -------------
commenced, or has had commenced against them,
proceeding or case seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the
appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of such obligor or of
all or any substantial part of its property, or (iii)
similar relief in respect of such obligor under any law
relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or
an order for relief against such obligor shall be
entered in an involuntary case under the Bankruptcy
Code or any other applicable bankruptcy, insolvency or
similar laws
$
(c) Collections from any account debtor located outside -------------
the United States of $__________ America (including,
without limitation, territories, commonwealths and
possessions), unless it has provided standby letters of
credit or other instruments (in form and substance
reasonably satisfactory to the Underwriters) issued or
confirmed by, and payable at, banks satisfactory to the
Underwriters having a place of business in the United
States of America and payable in Dollars, which letters
of credit are assigned or issued for the benefit of and
delivered to the Underwriters.
C. Collections Availability (Line A minus Line B) $
=============
II. CALCULATION OF FIVE-WEEK SALES TO ELIGIBLE ACCOUNT DEBTORS
A. Aggregate sales to all account debtors for
the five-week period ending on ________ ____, ______ $
-------------
B. Less exclusions: $
-------------
(a) Sales to account debtors that are Affiliates or $
employees of Loan Parties -------------
$
(b) Sales to any account debtor which has commenced, or -------------
has had commenced against it, a proceeding or case
seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the
composition or readjustment of its debts, (ii) the
appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of such obligor or of
all or any substantial part of its property, or (iii)
similar relief in respect of such obligor under any law
relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or
an order for relief against such obligor shall be
entered in an involuntary case under the Bankruptcy
Code or any other applicable bankruptcy, insolvency or
similar laws
(c) Sales to any account debtor located outside the
United States of America (including, without limitation,
territories, commonwealths and possessions), unless it
has provided standby letters of credit or other
instruments (in form and substance reasonably
satisfactory to the Underwriters) issued or confirmed
by, and payable at, banks satisfactory to the
Underwriters having a place of business in the United
States of America and payable in Dollars, which letters
of credit are assigned or issued for the benefit of and
delivered to the Underwriters
C. Aggregate five-week sales to Eligible Account Debtors $
(Line A minus Line B) -------------
D. Multiplier with respect to aggregate five-week sales $
to Eligible Account Debtors 75%
$
E. Sales Availability (product of Line C and Line D) -------------
$
=============
EXHIBIT C
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE GENERAL ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ [Location]
------------------ [Date]
FOR VALUE RECEIVED, the undersigned, SAFETY-KLEEN SERVICES, INC.,
a Delaware corporation (the "BORROWER"), hereby unconditionally promises to pay
to ..................... (the "LENDER") or its registered assigns at the Payment
Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of the United States and in immediately available funds, on the
Termination Date the principal amount of (a) ................. DOLLARS
($...........), or, if less, (b) the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lenders to the Borrower pursuant to Section
2.1 of the Credit Agreement. The Borrower further agrees to pay interest in like
money at such Payment Office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 4.6 of the
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Revolving
Credit Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof and each continuation thereof.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make any such endorsement or any error
in any such endorsement shall not affect the obligations of the Borrower in
respect of any Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Amended and
Restated Debtor in Possession Credit Agreement, initially dated as of June 11,
2000, Amended and Restated as of as of July 19, 2000 (as amended, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, the Lender, the other financial institutions from time to time party
thereto, The Toronto Dominion Bank, Houston Agency, as letter of credit issuing
bank, Toronto Dominion (Texas), Inc., as General Administrative Agent, The CIT
Group/Business Credit, Inc., as collateral agent and underwriter, (b) is subject
to the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
This Note is secured and guaranteed as provided in the Loan Documents and the
Orders. Reference is hereby made to the Loan Documents and the Orders for
a description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement and the Orders.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SAFETY-KLEEN SERVICES, INC.
By:_______________________________
Name:
Title:
Schedule A
TO REVOLVING CREDIT NOTE
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
===== ============== =============== ====================== =================== ================ =================
Amount Amount of Base Rate Unpaid Principal
Amount of Base Converted to Amount of Principal of Loans Converted to Balance of Base
Date Rate Loans Base Rate Loans Base Rate Loans Repaid LIBOR Loans Rate Loans Notation Made By
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
- ----- -------------- --------------- ---------------------- ------------------- ---------------- -----------------
===== ============== =============== ====================== =================== ================ =================
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF LIBOR LOANS
===== =============== ============ =================== =================== ================== ================ ========
Amount Interest Period and Amount of Principal Amount of LIBOR Unpaid Principal Notation
Amount of LIBOR Converted to LIBOR rate with of LIBOR Loans Loans Converted to Balance of Made By
Date Loans LIBOR Loans Respect Thereto Repaid Base Rate Loans LIBOR Loans
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
- ----- --------------- ------------ ------------------- ------------------- ------------------ ---------------- --------
===== =============== ============ =================== =================== ================== ================ ========
EXHIBIT D
FORM OF CLOSING CERTIFICATE
Pursuant to subsection 6.1(e) of the Debtor in Possession Credit
Agreement dated as of June 11, 2000 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"; capitalized terms used
herein but not defined are used as defined in the Credit Agreement), among
SAFETY-KLEEN SERVICES, INC., a Delaware corporation (the "BORROWER"), the
financial institutions from time to time parties thereto (the "Lenders"),
TORONTO-DOMINION BANK, HOUSTON AGENCY, as letter of credit issuing bank, TORONTO
DOMINION (TEXAS), INC., as administrative agent, and THE CIT GROUP/BUSINESS
CREDIT, INC., as collateral agent and underwriter, the undersigned [INSERT TITLE
OF OFFICER] of the Borrower hereby certifies as follows:
1. The representations and warranties of each Loan Party set
forth in each of the Loan Documents to which it is a party or which are
contained in any certificate furnished by or on behalf of each Loan Party
pursuant to any of the Loan Documents to which it is a party are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date.
2. No Default or Event of Default has occurred and is continuing
as of the date hereof or after giving effect to the Loans to be made on the date
hereof.
3. The conditions precedent set forth in Section 6.1 of the
Credit Agreement were satisfied as of the Closing Date, except as set forth on
Schedule I hereto.
4. ..................is the duly elected and qualified Corporate
Secretary of each Loan Party and the signature set forth for such officer below
is such officer's true and genuine signature.
and the undersigned Corporate Secretary of each Loan Party certifies as follows:
5. The following persons are now duly elected and qualified
officers of such Loan Party holding the offices indicated next to their
respective names below, and such officers have held such offices with such Loan
Party at all times since the date indicated next to their respective titles to
and including the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such officers, and
each of such officers is duly authorized to execute and deliver on behalf of
such Loan Party each of the Loan Documents to which it is a party and any
certificate or other document to be delivered by such Loan Party pursuant to the
Loan Documents to which it is a party:
NAME OFFICE DATE SIGNATURE
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have meanings given to them in the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set our names
as of the date set forth below.
- ------------------------------- -----------------------------
Name: Name:
Title: Title: Corporate Secretary
Date: June ___, 2000
EXHIBIT E
SAFETY-KLEEN SERVICES, INC.
FORM OF BORROWING CERTIFICATE
Pursuant to subsection 6.2(e) of 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"; capitalized terms used herein but not
defined are used as defined in the Credit Agreement), among SAFETY-KLEEN
SERVICES, INC., a Delaware corporation (the "BORROWER"), the financial
institutions from time to time parties thereto (the "LENDERS"), TORONTO-DOMINION
BANK, HOUSTON AGENCY, as letter of credit issuing bank, TORONTO DOMINION
(TEXAS), INC., as administrative agent, and THE CIT GROUP/BUSINESS CREDIT, INC.,
as collateral agent and underwriter, the undersigned hereby certifies to the
General Administrative Agent and the Lenders by execution hereof by a
Responsible Officer that:
1. The Extension of Credit to be made by the Lenders to the Borrower on
_________, _____, and the intended use thereof (a) are consistent with the terms
of the Budget and the Credit Agreement and (b) are necessary, after utilization
and application of the Borrower's and the Guarantors' available cash, in order
for the Borrower and the Guarantors to satisfy their obligations in the ordinary
course of business or as otherwise permitted under the Credit Agreement.
2. All of the representations and warranties contained in Section 5 of
the Credit Agreement are true and correct in all material respects on and as of
the date of this Borrowing Certificate (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 the Borrower
and the Guarantors have observed or performed in all material respects all of
their respective covenants and agreements contained in the Credit Agreement, the
other Loan Documents and the Orders (as applicable) such that no Default or
Event of Default has occurred or is continuing, and the Borrower and the
Guarantors have satisfied each condition set forth in subsections [6.1 and] 1/
6.2 of the Credit Agreement to the proposed Extension of Credit, as the case may
be.
3. The making of the Extension of Credit shall not cause the sum of the
then outstanding Loans and L/C Obligations to exceed the Borrowing Base then in
effect.
- -------------
1/ Include bracketed language for initial Extension of Credit.
2
IN WITNESS WHEREOF, the undersigned has executed this
Borrowing Certificate as of the date below written.
SAFETY-KLEEN SERVICES, INC.
By: ___________________________
Name:
Title:
Dated: __________ ___, _____
In re ) Chapter 11 Cases
)
SAFETY-KLEEN CORP., et al. ) Case Nos. 00-2303(PJW)
)
) Jointly Administered
Debtors. )
FINAL ORDER (I) AUTHORIZING SECURED POSTPETITION
FINANCING ON A SUPERPRIORITY BASIS PURSUANT TO
11 U.S.C. sec. 364, (II) AUTHORIZING USE OF CASH COLLATERAL
PURSUANT TO 11 U.S.C. sec.363, AND (III) GRANTING ADEQUATE
PROTECTION PURSUANT TO 11 U.S.C. sec. 363 AND sec. 364
Upon the motion (the "MOTION") dated June 12, 2000 of Safety-Kleen
Services, Inc. (the "COMPANY"), Safety-Kleen Corp. ("HOLDINGS") and the direct
and indirect wholly owned subsidiaries of the Company incorporated under the
laws of one of the United States of America (the "SUBSIDIARIES"; collectively
with Holdings, the "GUARANTORS"), all of which are debtors and debtors in
possession (collectively, the "DEBTORS"), (a) seeking this Court's authorization
pursuant to Sections 363(c), 364(c)(1), 364(c)(2), 364(c)(3) and 364(d)(1) of
Title 11 of the United States Code, 11 U.S.C. sec. 101, ET SEQ. (as amended, the
"BANKRUPTCY CODE") and Rules 2002, 4001(c) and 9014 of the Federal Rules of
Bankruptcy Procedure (as amended, the "BANKRUPTCY RULES"), for the Company,
INTER ALIA, (i) to obtain secured postpetition financing (the "POSTPETITION
FINANCING") up to an aggregate principal amount not to exceed $100,000,000 (the
"COMMITMENT") from Toronto Dominion (Texas), Inc. ("TD TEXAS"), as general
administrative agent (in its capacity as general administrative agent for the
Lenders referred to below, the "GENERAL ADMINISTRATIVE AGENT"), and a syndicate
of other financial institutions (the "LENDERS") arranged by the General
Administrative Agent and The CIT Group/Business Credit, Inc. ("CIT";
collectively with the General Administrative Agent, the "UNDERWRITERS"), and for
the Company to execute an Amended and
2
Restated Debtor in Possession Credit Agreement with respect to the Postpetition
Financing (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"); and for the Company to execute revolving credit notes (the
"NOTES"); and for the Borrower and each Guarantor to enter into a Guarantee and
Collateral Agreement to guarantee and secure the Notes and all obligations of
the Company and each other Guarantor under the Credit Agreement (the Credit
Agreement, the Notes, and all ancillary documents at any time executed in
connection therewith, collectively, the "LOAN Documents"), (ii) to grant the
Lenders, pursuant to Bankruptcy Code sec. 364(c) and sec. 364(d), security
interests in all of the Debtors' presently owned and after-acquired personal
property and Leaseholds (as defined in the Credit Agreement) and the Prepetition
Real Estate Collateral (as defined below) to secure the Debtors' obligations
under the Loan Documents and (iii) to grant the Lenders, pursuant to Bankruptcy
Code ss. 364(c)(1), priority in payment with respect to such obligations over
any and all administrative expenses of the kinds specified in Bankruptcy Code
sec. 503(b) and sec. 507(b), other than in respect of the Carve-Out (as defined
below); (b) seeking this Court's authorization, pursuant to Bankruptcy Code ss.
363(c), to use the Cash Collateral (as defined below) and, pursuant to
Bankruptcy Code sec. 361, sec. 363(e) and sec. 364(d), to provide adequate
protection to the Prepetition Lenders (as defined below) with respect to any
diminution in the value of the Prepetition Lenders' interests in the Prepetition
Collateral (as defined below) resulting from the priming liens and security
interests granted in the Interim Order referred to below pursuant to Bankruptcy
Code ss. 364(d) to secure the Postpetition Financing, the use of the Cash
Collateral, the use, sale or lease of the Prepetition Collateral (other than the
Cash Collateral) and the imposition of the automatic stay pursuant to Bankruptcy
Code ss. 362(a); (c) seeking a preliminary hearing (the "PRELIMINARY HEARING")
on the Motion to consider entry of an interim order pursuant to Bankruptcy Rule
4001 (the "INTERIM ORDER") authorizing the Company, INTER ALIA, to borrow and
obtain letters of credit from the Lenders under the Credit Agreement up to an
aggregate of $40,000,000, all upon the terms and conditions set forth in the
Loan Documents and this Order pending the Final Hearing referred to below; and
(d)
3
requesting that a final hearing (the "FINAL HEARING"; together with the
Preliminary Hearing, the "HEARINGS") be scheduled, and that notice procedures in
respect of the Final Hearing be established by this Court to consider entry of a
final order (this "ORDER") authorizing on a final basis, INTER ALIA, the
Postpetition Financing and the use of the Cash Collateral; and due and
sufficient notice of the Motion and the Hearings having been given; and the
Court having entered the Interim Order at the conclusion of the Preliminary
Hearing; and the Final Hearing on the Motion having been held before this Court
on July 19, 2000; and upon the entire record made at the Hearings, and this
Court having found good and sufficient cause appearing therefor,
IT IS HEREBY FOUND that:
A. On June 9, 2000 (the "FILING DATE"), the Debtors filed
voluntary petitions for relief with this Court under Chapter 11 of the
Bankruptcy Code (the "CHAPTER 11 CASES"). The Debtors are continuing in
possession of their property, and operating and managing their businesses, as
debtors in possession pursuant to Bankruptcy Code sec. 1107 and sec. 1108.
B. This Court has jurisdiction over the Chapter 11 Cases and
the Motion pursuant to 28 U.S.C.sec. 157(b) and sec. 1334. Consideration of the
Motion constitutes a core proceeding as defined in 28 U.S.C. sec. 157(b)(2).
C. Pursuant to an Amended and Restated Credit Agreement dated
as of April 3, 1998 (as amended, supplemented or otherwise modified prior to the
Filing Date, the "PREPETITION CREDIT AGREEMENT"), among the Company,
Safety-Kleen (Canada) Ltd. (the "CANADIAN BORROWER"), the lenders from time to
time parties thereto (the "PREPETITION LENDERS"), TD Texas, as general
administrative agent for the Prepetition Lenders (in such capacity, the
"PREPETITION AGENT"), The Toronto-Dominion Bank, as Canadian administrative
agent, TD Securities (USA) Inc. as advisor and arranger, The Bank of Nova
Scotia, Bank of America (formerly known as Nationsbank, N.A.), Bank One, N.A.,
(formerly known as The First National Bank of Chicago) and Wachovia Bank, N.A.,
as managing agents, The Bank of Nova
4
Scotia and Bank One, N.A. (formerly known as The First National Bank of
Chicago), as co-documentation agents, and Bank of America (formerly known as
Nationsbank, N.A.), as syndication agent, the Prepetition Lenders made loans and
other financial accommodations to or for the benefit of the Debtors, in the
aggregate principal amount of US$1,557,000,000 and issued letters of credit in
the aggregate outstanding face amount of US$83,794,204.08. In addition, certain
Prepetition Lenders based in Canada extended approximately C$71,892,450.07 in
loans and letters of credit to the Canadian Borrower, guaranteed by the Debtors
and secured by the Prepetition Loan Documents. All such loans, financial
accommodations and other amounts owing under, or in connection with, the
Prepetition Credit Agreement and all collateral and ancillary documents executed
in connection therewith (collectively, the "PREPETITION LOAN DOCUMENTS"), are
hereinafter referred to as the "PREPETITION LOAN OBLIGATIONS." Finally, the
Prepetition Loan Documents secured interest rate protection agreements between
one or more of the Debtors and any of the Prepetition Lenders ("INTEREST RATE
PROTECTION AGREEMENTS").
D. Without prejudice to the rights of any other party (but
subject to the limitations thereon described below in decretal paragraph 16),
the Debtors admit that, in accordance with the terms of the Prepetition Loan
Documents and the Interest Rate Protection Agreements, the Debtors are truly and
justly indebted to the Prepetition Lenders, without defense, counterclaim or
offset of any kind, and that as of the Filing Date (i) the Company and the
Canadian Borrower was liable to the Prepetition Lenders in respect of loans made
by the Prepetition Lenders to the Company pursuant to the Prepetition Credit
Agreement in the aggregate amount of US$1,557,000,000 and C$71,892,450.07,
respectively (inclusive of interest and fees accrued and unpaid thereon), (ii)
the Company was contingently liable to the Prepetition Lenders in the aggregate
face amount of approximately US$83,794,204.08 in respect of letters of credit
issued pursuant to the Prepetition Credit Agreement and which remained
outstanding as of the Filing Date, (iii) the Company was contingently liable to
certain Prepetition Lenders in the aggregate amount of US$69,460,689 in respect
of Interest Rate Protection
5
Agreements, inclusive of interest accrued and unpaid thereon (the "SWAP
OBLIGATIONS"; together with the Prepetition Loan Obligations, the "PREPETITION
OBLIGATIONS"), (iv) the Company was liable to the Prepetition Agent and the
Prepetition Lenders for accrued and unpaid interest, commitment fees, attorneys'
and advisors' fees, other out-of-pocket expenses, costs and indemnities in an
aggregate amount of US$37,520,227.07 and C$955,041.41, respectively, and (v)
each Debtor was contingently liable to the Prepetition Lenders pursuant to its
guarantee of the Prepetition Obligations.
E. Without prejudice to the rights of any other party (but
subject to the limitations thereon described below in decretal paragraph 16),
the Debtors further admit that the Prepetition Obligations are secured by valid,
perfected, enforceable, first-priority security interests (subject only to liens
permitted under the Prepetition Loan Documents to have higher priority
("PERMITTED PRIOR LIENS")) granted by the applicable Debtor to the Prepetition
Agent, for the ratable benefit of the Prepetition Lenders, upon and in
substantially all of the Company's and the other applicable Debtors' personal
property (other than vehicles) and certain real estate (the "PREPETITION REAL
ESTATE COLLATERAL") listed on Schedule 5 to the Guarantee and Collateral
Agreement hereto (including the setoff rights described in the Prepetition Loan
Documents and arising by operation of law, the "PREPETITION COLLATERAL"),
including without limitation, inventory, accounts receivable, equipment, general
intangibles, stock in subsidiaries and other tangible and intangible personal
property and the proceeds thereof. The Debtors' cash constitutes proceeds of the
Prepetition Collateral and, therefore, is cash collateral of the Prepetition
Lenders within the meaning of Bankruptcy Code sec. 363(a) (the "CASH
COLLATERAL"). The Prepetition Lenders are entitled, pursuant to Bankruptcy Code
sec. 361 and sec. 363(e), to adequate protection of their interest in the
Prepetition Collateral, including for the use of the Cash Collateral, the use,
sale or lease of the Prepetition Collateral other than the Cash Collateral and
the imposition of the automatic stay.
F. The Debtors do not have sufficient available sources of
working capital and financing to operate their business in the ordinary course
of business or operate their business and maintain
6
their property in accordance with state and federal law without the Postpetition
Financing and the use of the Cash Collateral. The Debtors' ability to maintain
business relationships with their vendors, suppliers and customers, to pay more
than 10,000 employees and otherwise finance their operations, is essential to
the Debtors' continued viability. In addition, the Debtors' need for financing
is immediate. In the absence of the Postpetition Financing and the use of the
Cash Collateral, the continued operation of the Debtors' businesses would not be
possible, and serious and irreparable harm to the Debtors and their estates
would occur. The preservation, maintenance and enhancement of the going concern
value of the Debtors are of the utmost significance and importance to a
successful reorganization of the Debtors under Chapter 11 of the Bankruptcy
Code.
G. Given the Debtors' current financial condition, financing
arrangements and capital structure, the Debtors cannot obtain unsecured credit
allowable under Bankruptcy Code ss. 503(b)(1) as an administrative expense.
Financing on a postpetition basis is not otherwise available without the Debtors
(i) granting, pursuant to Bankruptcy Code ss. 364(c)(1), claims having priority
over any and all administrative expenses of the kinds specified in Bankruptcy
Code sec. 503(b) and sec. 507(b), other than as described below in respect of
Chapter 5 Actions and the Carve-Out, (ii) securing, pursuant to Bankruptcy Code
sec. 364(c) and (d), such indebtedness and obligations with security interests
in and liens on all of the Debtors' personal property and Leaseholds as
described below, and (iii) providing for adequate protection of the Prepetition
Lenders' interests as described below.
H. Notice of the Final Hearing and the relief requested in the
Motion has been given to (i) the Office of the United States Trustee, (ii)
counsel to the informal steering committee of Prepetition Lenders (the "STEERING
COMMITTEE") and the Prepetition Agent, (iii) the creditors holding the 20
largest unsecured claims against each Debtor, (iv) proposed counsel to the
Official Committee of Unsecured Creditors (the "COMMITTEE") appointed to the
Chapter 11 Cases and (v) any party who filed a request for
7
notices in the Chapter 11 Cases pursuant to Bankruptcy Rule 2002 prior to the
date set forth in the Interim Order for service of notice of the Final Hearing.
Such notice of the Final Hearing and the relief requested in the Motion complies
with the requirements of Bankruptcy Code sec. 102(1), sec. 364(c) and sec.
364(d) and Bankruptcy Rules 2002 and 4001(c) and the notice procedures
established pursuant to the Interim Order.
I. Based on the record presented to the Court by the Debtors
at the Preliminary Hearing, the Postpetition Financing has been negotiated in
good faith by the Underwriters and at arm's length between the Debtors and the
Underwriters, and any credit extended, letters of credit issued and loans made
to the Debtors pursuant to the Credit Agreement shall be deemed to have been
extended, issued or made, as the case may be, in good faith by the Lenders as
required by, and within the meaning of, Bankruptcy Code ss. 364(e).
J. Based on the record presented to the Court by the Debtors
at the Hearings, the terms of the Postpetition Financing appear to be fair and
reasonable, are ordinary and appropriate for secured financing to debtors in
possession, reflect the Debtors' exercise of prudent business judgment
consistent with their fiduciary duties, and are supported by reasonably
equivalent value and fair consideration.
K. The Debtors have requested immediate entry of this Order
pursuant to Bankruptcy Rules 4001(b)(2) and 4001(c)(2). The permission granted
herein to enter into the Postpetition Financing and obtain funds thereunder, and
to use the Cash Collateral, is necessary to avoid immediate and irreparable harm
to the Debtors. This Court concludes that entry of this Order is in the best
interest of the Debtors' respective estates and creditors as its implementation
will, among other things, provide the Debtors with the necessary liquidity to
sustain the operation of the Debtors' businesses and enhance the Debtors'
prospects for successful reorganization.
Based upon the foregoing findings and conclusions, and upon
the record made before this Court at the Hearings, and good and sufficient cause
appearing therefor;
IT IS HEREBY ORDERED that:
8
1. The Motion is granted, subject to the terms and conditions
set forth in this Order.
2. The Debtors are expressly authorized and empowered to
execute and deliver the Credit Agreement, the Notes and any other Loan Document
to be executed and delivered in connection therewith. The Company and the
Guarantors are authorized to comply with and perform all of the terms and
conditions of the Loan Documents, and the Company is directed to repay amounts
borrowed and reimbursement obligations incurred, and each Guarantor is further
directed to repay amounts guaranteed, with interest to the Lenders in accordance
with and subject to the terms and conditions set forth in the Loan Documents and
this Order. The Debtors are further authorized and directed to pay all
commitment and other fees and expenses, including without limitation, all
reasonable fees and expenses of professionals engaged by the General
Administrative Agent, the Underwriters and the Steering Committee and those
reasonable fees and expenses provided for in paragraph 8 of this Order, in
accordance with the terms of the Credit Agreement and the fee letter between the
General Administrative Agent and the Debtors. All loans made under the Credit
Agreement (the "LOANS") and interest thereon, together with all reimbursement
and other obligations in respect of letters of credit issued under the Credit
Agreement ("LETTERS OF CREDIT"), and all fees, costs, expenses, indebtedness,
obligations and liabilities of the Company and each Guarantor to the General
Administrative Agent and the Lenders under the Loan Documents and this Order,
are hereinafter referred to as the "OBLIGATIONS."
3. The Company is expressly authorized to borrow from the
Lenders, on the terms and subject to the conditions set forth in the Loan
Documents and this Order, a total of US$100,000,000 (inclusive of the issuance
of up to an aggregate face amount of US$35,000,000 of Letters of Credit) under
the Credit Agreement, and the Guarantors are expressly authorized to guarantee
all Obligations in respect of such Loans and Letters of Credit. The Company is
authorized to use the proceeds of the Loans, to use the Cash Collateral and to
request the issuance of Letters of Credit in the operation of the Debtors'
9
businesses, PROVIDED, that (a) the proposed Loan, Letter of Credit or use of the
Cash Collateral is consistent with the terms of the Credit Agreement and this
Order and will be used to pay when due expenses of the types set forth in the
Budget (as defined in the Credit Agreement) and (b) any requested Loan is
necessary after the application of available Cash Collateral. Safety-Kleen
Systems, Inc., as borrower, and Safety-Kleen Services, Inc., as guarantor are
further expressly authorized and directed to repay in full the Elgin Loan
Obligations directly to each older of the Elgin Loan Obligations, and discharge
the Liens that secure the Elgin Loan Obligations, provided, that the amount of
such repayment in respect of Laidlaw, Inc.'s ratable portion of the Elgin Loan
Obligations shall be deposited by Safety-Kleen Systems, Inc., or Safety-Kleen
Services, Inc., as the case may be, into an interest-bearing account of such
Debtor and any liens that may exist in favor of Laidlaw, Inc. In respect of the
Elgin Loan Obligations prior to such repayment and discharge shall attach to
such deposit with the same right, priority and validity as such liens had in
respect of the Elgin Loan Collateral, and such deposit and interest thereon
shall only be released upon further order of this Court; and such deposit shall
constitute full repayment of the Elgin Loan Obligations for all purposes of the
Demand Loan Agreement, dated as of March 14, 2000. A copy of this Order shall be
served upon Laidlaw, Inc.
4. If an Event of Default (as defined in the Credit Agreement)
occurs and is continuing, subject to the requirement contained in the Credit
Agreement with respect to specified remedies to provide five business days'
prior written notice to the Company, the United States Trustee and the
Committee, the General Administrative Agent may terminate the Postpetition
Financing (the date of any such termination, the "TERMINATION DATE") and declare
the Loans to be due and payable, and the automatic stay pursuant to Bankruptcy
Code ss. 362(a) shall be deemed lifted and modified, without further order of
this Court, to permit the General Administrative Agent and the Lenders to
exercise any and all of their rights and remedies under the Credit Agreement,
the other Loan Documents and this Order. In addition, the Company's right to use
the Cash Collateral shall terminate automatically on the Termination Date or
10
on the fifth business day after the General Administrative Agent provides
written notice to the Company, the United States Trustee and the Committee of
the occurrence of an Event of Default and that such use of the Cash Collateral
shall terminate as a result thereof. Notwithstanding anything herein to the
contrary, no Loans, Letters of Credit, Collateral, Cash Collateral or any
portion of the Carve-Out may be used to object to or contest in any manner, or
raise any defenses to, the amount, validity, perfection, priority, extent or
enforceability of the Prepetition Obligations, the Obligations or the liens
securing the Prepetition Obligations or the Obligations, or to assert any claims
or causes of action against the Prepetition Lenders, the Prepetition Agent, the
Lenders or the General Administrative Agent.
5. In accordance with Bankruptcy Code ss. 364(c)(1), subject
to Paragraph 7 below, the Obligations shall constitute claims (the
"SUPERPRIORITY CLAIMS") with priority in payment over any and all administrative
expenses of the kinds specified or ordered pursuant to any provision of the
Bankruptcy Code, including, without limitation, Bankruptcy Code secs. 105, 326,
328, 330, 331, 503(b), 506(c), 507(a), 507(b) and 726, and shall at all times be
senior to the rights of the Debtors, and any successor trustee or any creditor,
in the Chapter 11 Cases or any subsequent proceedings under the Bankruptcy Code.
Subject only to the Carve-Out, no cost or expense of administration under
Bankruptcy Code secs. 105, 364(c)(1), 503(b), 506(c), 507(b) or otherwise,
including those resulting from the conversion of any of the Chapter 11 Cases
pursuant to Bankruptcy Code ss. 1112, shall be senior to, or PARI PASSU with,
the Superpriority Claims of the Lenders arising out of the Obligations.
6. As security for the Obligations, the General Administrative
Agent for the benefit of the Lenders shall have and is hereby granted (effective
upon the date of this Order and without the necessity of the recordation of
mortgages, security agreements, pledge agreements, financing
11
statements or otherwise), valid and perfected security interests in, and liens
on (the "LIENS"), all present and after-acquired personal property and
Leaseholds and the Prepetition Real Estate Collateral of the Debtors of any
nature whatsoever (provided that the amount of the lien on the Elgin Loan
Collateral shall be limited to the sum of (i) the amount of Elgin Loan
Obligations repaid after the Filing Date and (ii) the amount of interest accrued
and paid on Loans used to repay the Elgin Loan Obligations, and shall not arise
until such Elgin Loan Obligations shall have been repaid in full), including,
without limitation, all cash contained in any account maintained by the Debtors,
accounts receivable, inventory, equipment, vehicles, furniture, intellectual
property, investment property, intercompany claims, general intangibles and the
proceeds of all causes of action (other than causes of action arising under the
Bankruptcy Code) (collectively with all proceeds and products of any or all of
the foregoing, including proceeds of sale of real property, the "Collateral"):
(a) pursuant to Bankruptcy Code ss. 364(c)(2), a first
priority, perfected Lien upon all of the Debtors' right, title and
interest in, to and under all Collateral that is not otherwise
encumbered by a validly perfected security interest or lien on the
Filing Date;
(b) pursuant to Bankruptcy Code ss. 364(d)(1), a first
priority, senior, priming, perfected Lien upon all of the Debtors'
right, title and interest in, to and under the Prepetition Collateral,
provided that the amount of Obligations secured by the Lien on the
Elgin Loan Collateral shall be limited to the sum of (i) the amount of
Elgin Loan Obligations repaid after the Filing Date and (ii) the amount
of interest accrued and paid on Loans used to repay the Elgin Loan
Obligations and shall not arise until such Elgin Loan Obligations shall
have been repaid in full); and provided further that such first
priority, senior, priming Lien shall be subject to all Permitted Prior
Liens; and
(c) pursuant to Bankruptcy Code ss. 364(c)(3), a second
priority, junior, perfected Lien upon all of the Debtors' right, title
and interest in, to and under all other Collateral which is subject to
a validly perfected security interest or lien in existence as of the
Filing Date, or a valid lien perfected (but not granted) after the
Filing Date to the extent such perfection in respect of a pre-Filing
Date claim is expressly permitted under the Bankruptcy Code.
Except to the extent expressly set forth in clause (c) of this paragraph 6 and
paragraph 7, the Liens granted pursuant to this Order and the Loan Documents to
the General Administrative Agent for the benefit of the
12
Lenders to secure the Obligations shall not be subordinated to or made PARI
PASSU with any other lien or security interest.
7. Any provision of this Order or the Credit Agreement to the
contrary notwithstanding, the Liens and Superpriority Claims granted to the
General Administrative Agent and the Lenders pursuant to the Credit Agreement
and this Order shall be subject and subordinate to a carve-out (the "CARVE-OUT")
for (a) following the occurrence and during the pendency of a Default or an
Event of Default (as each such term is defined in the Credit Agreement), the
payment of allowed professional fees and disbursements incurred by the
professionals retained, pursuant to Bankruptcy Code secs. 327 or 1103(a), by
the Debtors and the Committee (and any other statutory committee appointed in
the Chapter 11 Cases) and any disbursements of any member of the Committee in an
aggregate amount not to exceed US$7,500,000 (plus professional fees and
disbursements incurred prior to such Default or Event of Default to the extent
subsequently awarded) and (b) quarterly fees required to be paid pursuant to 28
U.S.C. ss. 1930(a)(6) and any fees payable to the Clerk of the Bankruptcy Court;
PROVIDED, HOWEVER, (x) following the Termination Date, any amounts in the Cash
Collateral Account (as defined in the Credit Agreement) shall not be subject to
the Carve-Out and (y) the Carve-Out shall not include professional fees and
disbursements incurred in connection with asserting any claims or causes of
action against the Prepetition Lenders or the Prepetition Agent and/or
challenging or raising any defense to the Prepetition Obligations, any lien of
the Prepetition Agent or the Prepetition Lenders. As long as no Default or Event
of Default shall have occurred and be continuing, the Company and the Guarantors
shall be permitted to pay compensation and reimbursement of expenses, allowed
and payable under Bankruptcy Code secs. 330 and sec. 331, as the same may
be payable, and the amount so paid shall not reduce the Carve-Out.
8. (a) The Debtors are hereby authorized to use the Cash
Collateral, PROVIDED that the holders of Prepetition Obligations are granted
adequate protection as hereinafter set forth.
13
(b) As adequate protection for any diminution in the value
of the Prepetition Collateral resulting from (i) the priming granted in this
Order and the Loan Documents pursuant to Bankruptcy Code ss. 364(d), (ii) the
use of the Cash Collateral pursuant to Bankruptcy Code ss. 363(c), (iii) the
use, sale or lease of the Prepetition Collateral (other than the Cash
Collateral) pursuant to Bankruptcy Code ss. 363(c) and (iv) the imposition of
the automatic stay pursuant to Bankruptcy Code ss. 362(a):
(i) the Prepetition Agent for the ratable benefit of the
holders of Prepetition Obligations shall be and hereby is granted
(effective upon the date of the Interim Order and without the necessity
of the execution by the Debtors of mortgages, security agreements,
pledge agreements, financing statements or otherwise), valid and
perfected, replacement security interests in, and liens on (the
"REPLACEMENT LIENS"), all of the Debtors' right, title and interest in,
to and under the Collateral, subject only to (x) the Carve-Out, (y) the
Liens granted pursuant to this Order and the Loan Documents to the
General Administrative Agent and the Lenders to secure the Obligations
and (z) any validly perfected liens which remain senior (after giving
effect to this Order) to the Liens granted to the General
Administrative Agent and the Lenders pursuant to this Order and the
Loan Documents;
(ii) the Prepetition Agent for the ratable benefit of the
holders of Prepetition Obligations shall be and hereby is granted,
pursuant to Bankruptcy Code ss. 364(c)(1), Superpriority Claims, junior
only to (x) the Superpriority Claims granted pursuant to this Order to
the General Administrative Agent and the Lenders in respect of the
Obligations and (y) the Carve-Out;
(iii) on the Closing Date (as defined in the Credit Agreement)
and thereafter on the last business day of each month, the Debtors
shall reimburse the Prepetition Agent and the Steering Committee for
all reasonable fees, costs and charges previously or hereafter incurred
by the Prepetition Agent and the Steering Committee of Prepetition
Lenders (including without limitation, internal collateral auditing and
monitoring expenses and the reasonable fees and out-of-pocket
disbursements of any financial consultants and outside counsel advising
the Prepetition Agent and the Steering Committee) in connection with
the advice, analysis, negotiation, enforcement and protection of the
claims, rights and interests of the Prepetition Agent and the
Prepetition Lenders in the Chapter 11 Cases);
(iv) to the extent the Debtors shall receive Net Cash Proceeds
(as defined in the Prepetition Credit Agreement) from the sale of the
Elgin Loan Collateral, in excess of the sum of (i) the amount of Elgin
Loan Obligations repaid after the Filing Date and (ii) the amount of
interest accrued and paid on Loans used to repay the Elgin Loan
Obligations, such excess Net Cash Proceeds shall be paid to the
Prepetition Agent for ratable distribution to the holders of
Prepetition Obligations; and
(v) upon receipt of the proceeds of sale of the remaining
equity interest in Safety-Kleen (Europe) Limited, regardless of when
consummated, such proceeds (the "EUROPEAN PROCEEDS")
14
shall be added to the amounts already received from the sale of assets
by Safety-Kleen (Rosemount), Inc. which are currently on deposit in the
cash collateral account established prior to the Petition Date for the
benefit of the Prepetition Agent and the Prepetition Lenders (the
"PREPETITION CASH COLLATERAL ACCOUNT"), which combined amounts (the
"COMBINED PROCEEDS") shall promptly be released as follows:
(A) an amount equal to 50% of the Combined
Proceeds shall be distributed to the Prepetition
Lenders, PRO RATA, as adequate protection payments on
account of the Prepetition Obligations;
(B) an amount equal to the lesser of (i)
$10,000,000 and (ii) the remaining 50% of the Combined
Proceeds shall be disbursed to the Debtors for use in
purchasing or securing performance under automobile,
liability, workers' compensation and similar insurance
coverage previously provided by Laidlaw, Inc. and its
affiliates (the "REPLACEMENT INSURANCE") upon
satisfaction of the Prepetition Agent as to the need for
such funds; PROVIDED, that if the amount available for
disbursement under this clause (B) shall exceed the
amount needed for Replacement Insurance such excess
shall be distributed under clause (D) below; PROVIDED
FURTHER, that amounts distributed under this clause (B)
shall be drawn first from the Rosemount Proceeds and
last from the European Proceeds;
(C) until the disbursements contemplated by
clauses (A) and (aB) above have been made, the
Prepetition Agent may from time to time debit the
Prepetition Cash Collateral Account in which Combined
Proceeds may be deposited, to the extent of available
funds, to pay or reimburse its out-of-pocket expenses,
including, without limitation, fees and expenses of
counsel, forensic advisors and financial advisors, to
the Prepetition Agent and the Steering Committee,
subject to paragraph 8(d) of this Order;
(D) the balance of any Combined Proceeds (after
the disbursements provided for in clauses (A) and (B)
above or reserves therefor, and after any disbursements
which may have taken place pursuant to clause (C) above)
shall be disbursed to the Debtors.
(vi) the Debtors shall deliver to the Prepetition Agent, for
transmission to the Prepetition Lenders, all historical financial
statements delivered monthly, quarterly and annually under the Loan
Documents and all notices that refer to any material adverse
development concerning any Debtor.
(vii) As additional adequate protection for the use of cash
collateral, (i) the Debtors shall, on or before August 7, 2000, fulfill
all conditions precedent to Extensions of Credit under the Credit
Agreement, as set forth in subsections 6.1 and 6.2 of the Credit
Agreement, except (x) as may be waived in writing by the Prepetition
Agent upon consultation with the Steering Committee (y) conditions
requiring a Budget as to which the Debtors shall have until August 21,
2000, or such later date as the Prepetition Agent may specify in
writing after consultation with the Steering Committee to fulfill such
condition, and (z) the condition
15
pertaining to approval by this Court of the retention of Jay Alix and
Associates or other firm reasonably acceptable to the Prepetition
Agent, as to which the Debtors shall have until August 12,2000, or such
later date as the Prepetition Agent may specify in writing after
consultation with the Steering Committee to fulfill such condition, and
(ii) after August 7, 2000 during any period when no Extensions of
Credit are outstanding, Debtors shall observe and perform all of the
covenants in the Loan Documents for the benefit of the Prepetition
Lenders, except to the extent waived by the Prepetition Agent;
PROVIDED, that, for avoidance of doubt, nothing in this paragraph shall
be construed to relieve debtors of (I) the conditions precedent to
Extensions of Credit before August 7, 2000 if they seek an Extension of
Credit prior to such date or (II) their obligations to the General
Administrative Agent and the Lenders to observe and perform the
covenants in the Loan Documents.
If the Debtors should fail to provide the Prepetition Lenders the
adequate protection set forth in this paragraph (vii), the Prepetition
Agent may, after consultation with the Steering Committee, upon 5
business days' notice to the Company, the Committee and the United
States Trustee, terminate the Debtors' right to use cash collateral and
take any other action or exercise any other right or remedy permitted
to the Prepetition Agent and/or the Prepetition Lenders under the
Prepetition Loan Documents, this Order or by operation of law.
(c) As adequate protection for, and to the extent of, any
diminution in value of any interest of Bank One, NA and Wachovia Bank, N.A. in
the Debtors' Cash Collateral under Bankruptcy Code sec. 363 consisting of
balances in deposit accounts of Bank One, NA and Wachovia Bank, N.A. as of the
Petition Date each of Bank One, NA and Wachovia Bank, N.A. each is granted a
Superpriority Claim pursuant to Bankruptcy Code sec. 364(c)(1) to the extent it
has valid setoff rights against the Debtors under applicable non-bankruptcy law
and the Bankruptcy Code, junior only to (x) the Superpriority Claims granted
pursuant to this Order to the General Administrative Agent and the Lenders in
respect of the Obligations, (y) the Superpriority Claims granted pursuant to
this Order to the Prepetition Agent for the ratable benefit of the holders of
Prepetition Obligations, and (z) the Carve-Out.
(d) The debtors and the Committee shall have the right to
review and object to the reasonableness of any fees and expenses paid pursuant
to paragraphs 8(b)(iii) and 8(b)(v)(C) of this
16
Order in accordance with the following procedures: Counsel for the Prepetition
Agent and the Steering Committee shall provide to counsel for the Debtors and
the Committee, by no later than the 15th calendar day of each month, a request
for reimbursement of actual fees and expenses (including disbursements, costs
and charges) incurred during the preceding calendar month. Each of the Debtors
and the Committee shall have until the 10th calendar day after receipt of such
request (the "REVIEW PERIOD") to object to the Debtors' payment of any such fees
and expenses on the basis that such fees and expenses are unreasonable by
providing written notice to the Debtors and the party requesting such
reimbursement. If no timely objections are made with respect to any particular
request for reimbursement, the Debtors shall pay such request on the first
business day following the expiration of the Review Period. If any objection is
timely made to any particular request for reimbursement, such objection shall
specify the basis for which the objecting party challenges the reasonableness of
such fees or expenses and the Debtors shall pay within one business day of the
expiration of the Review Period any portion of such request which was not the
subject of such objection. If any objection to reasonableness cannot be
resolved by the parties, the Court shall resolve such objections.
(e) The Committee reserves its rights, and shall have the
right at any time prior to a disclosure statement hearing in the Chapter 11
Cases to seek (i) a determination by the Court that the Prepetition Agent and
the Prepetition Lenders are not entitled to some or all of the adequate
protection provided or contemplated by this order or the Interim Order and (ii)
recharacterization, reallocation, disgorgement or other appropriate relief as a
result of any such determination.
9. Under the circumstances, the adequate protection provided
herein is reasonable and sufficient to protect the interests of the Prepetition
Lenders. Notwithstanding any other provision hereof, the grant of adequate
protection to the Prepetition Agent and the Prepetition Lenders pursuant hereto
is without prejudice to the holders of Prepetition Obligations to seek
modification of the grant of
17
adequate protection provided hereby so as to provide different or additional
adequate protection, and without prejudice to the right of the Debtors or any
other party in interest to contest any such modification.
10. Except as set forth in paragraphs 6(c), 7 and 8(b) above,
the Liens and Replacement Liens shall be prior and senior to all liens and
encumbrances of all other secured creditors in and to such Collateral granted,
or arising, after the Filing Date (including, without limitation, liens and
security interests, if any, granted in favor of any federal, state, municipal or
other governmental unit, commission, board or court for any liability of the
Debtors). Other than the Carve-Out, the Debtors shall not assert a claim under
Bankruptcy Code ss. 506(c) for any costs and expenses incurred in connection
with the preservation, protection or enhancement of, or realization by the
General Administrative Agent, the Lenders, the Prepetition Agent or the holders
of Prepetition Obligations upon the Collateral or the Prepetition Collateral.
The Liens and Replacement Liens granted pursuant to this Order shall constitute
valid and duly perfected security interests and liens, and the General
Administrative Agent, the Lenders, the Prepetition Agent and the holders of
Prepetition Obligations shall not be required to file or serve financing
statements, notices of lien or similar instruments which otherwise may be
required under federal or state law in any jurisdiction, or take any action,
including taking possession, to validate and perfect such security interests and
liens; and the failure by the Debtors to execute any documentation relating to
the Liens or Replacement Liens shall in no way affect the validity, perfection
or priority of such Liens or Replacement Liens. If, however, the General
Administrative Agent or the Prepetition Agent, in their respective sole
discretion, shall determine to file any such financing statements, notices of
lien or similar instruments, or to otherwise confirm perfection of such Liens or
Replacement Liens, the Debtors are directed to cooperate with and assist in such
process, the stay imposed by Bankruptcy Code ss. 362(a) is hereby lifted to
allow the filing and recording of a certified copy of this Order or any such
financing statements, notices of lien or similar instruments, and all such
documents shall be deemed to have been filed or recorded at the time of and on
the date of this Order.
11. As long as any portion of the Obligations remains unpaid,
or any Loan Document remains in effect, the Debtors shall not seek, and it shall
constitute an Event of Default (and automatic occurrence of the Termination
Date) if any of the Debtors seek, or if there is entered, an order dismissing
18
any of the Chapter 11 Cases. If an order dismissing any of the Chapter 11 Cases
under Bankruptcy Code ss.1112 or otherwise is at any time entered, such order
shall provide (in accordance with Bankruptcy Code ss.ss.105 and 349) that (a)
the Superiority Claims, Liens and Replacement Liens granted pursuant to this
Order to the General Administrative Agent and the Lenders and to the Prepetition
Agent and the holders of Prepetition Obligations, as the case may be, shall
continue in full force and effect and shall remain binding on all parties in
interest notwithstanding such dismissal and until the Obligations and the
obligations in respect of the adequate protection granted herein shall have been
paid and satisfied in full and (b) this Court shall retain jurisdiction, to the
extent that it has the authority to do so, notwithstanding such dismissal, for
the purposes of enforcing such Superpriority Claims, Liens and Replacement Liens
and (c) if such dismissal occurs prior to the expiration of the periods granted
to any statutory committee of unsecured creditors pursuant to decretal paragraph
16(a) of this Order, such committee's right to bring in this Court actions
described in decretal paragraph 17(a) of this Order shall survive until the
expiration of the last day of the period specified in 16(a) notwithstanding the
entry of such dismissal order.
12. Upon the occurrence and during the continuance of an Event
of Default, the General Administrative Agent, acting at the direction of the
Required Lenders, may exercise rights and remedies and take all or any of the
following actions without further modification of the automatic stay pursuant to
Bankruptcy Code ss. 362 (which is hereby deemed modified and vacated to the
extent necessary to permit such exercise of rights and remedies and the taking
of such actions) or further order of or application to this Court: (a) terminate
the Commitments and thereafter cease to issue Letters of Credit or make Loans to
the Company; (b) declare the principal of and accrued interest, fees and other
liabilities constituting the Obligations to be due and payable; (c) setoff
amounts in the Concentration Account and the Cash Collateral Account (as defined
in the Credit Agreement) or any other accounts maintained with a Lender, or
otherwise enforce rights against any other Collateral in the possession of the
General Administrative Agent or any Lender; and/or (d) take any other action or
exercise any other right or remedy
19
permitted to the General Administrative Agent or the Lenders under the Loan
Documents, this Order or by operation of law; PROVIDED, HOWEVER, the General
Administrative Agent and the Lenders may take the actions described in clauses
(c) or (d) above only after providing five business days' prior written notice
to the Company, the United States Trustee and the Committee and PROVIDED that no
order prohibiting such actions is entered by this Court during such five
business day period. The Debtors waive any right to seek relief under the
Bankruptcy Code, including without limitation, under Bankruptcy Code ss. 105, to
the extent any such relief would in any way restrict or impair the rights and
remedies of the General Administrative Agent and the Lenders set forth in this
Order and in the Loan Documents, PROVIDED that such waiver shall not preclude
the Debtors from contesting whether a Default or Event of Default has occurred
and is then continuing.
13. The Debtors are authorized to perform all acts, and
execute and comply with the terms of such other documents, instruments and
agreements in addition to the Loan Documents, as the General Administrative
Agent or the Lenders may reasonably require, as evidence of and for the
protection of the Obligations, or which otherwise may be deemed reasonably
necessary by the General Administrative Agent or the Lenders to effectuate the
terms and conditions of this Order and the Loan Documents. The Debtors, the
General Administrative Agent and the Lenders are hereby authorized to implement,
in accordance with the terms of the Credit Agreement, any modifications
(including without limitation, any change in the number or composition of the
Lenders) of the Credit Agreement which are not material and adverse to the
Debtors without further Order of this Court.
14. Having been found to be extending credit, issuing Letters
of Credit and making Loans to the Debtors in good faith, the General
Administrative Agent and the Lenders shall be entitled to the full protection of
Bankruptcy Code ss. 364(e) with respect to the Obligations and the Liens created
or authorized by this Order in the event that this Order or any authorization
contained herein is stayed, vacated, reversed or modified on appeal. Any stay,
modification, reversal or vacation of this Order shall
20
not affect the validity of any obligation of the Debtors to the General
Administrative Agent or the Lenders incurred pursuant to this Order.
Notwithstanding any such stay, modification, reversal or vacation, all Loans
made and all Letters of Credit issued pursuant to this Order and the Credit
Agreement, all uses of the Cash Collateral and all Obligations incurred by the
Debtors pursuant hereto or the Loan Documents prior to written notice to the
General Administrative Agent and the Prepetition Agent of the effective date of
such stay, modification, reversal or vacation, shall be governed in all respects
by the original provisions hereof and the General Administrative Agent, the
Lenders, the Prepetition Agent and the Prepetition Lenders shall be entitled to
all the rights, privileges and benefits, including without limitation, the
Liens, Replacement Liens and Superpriority Claims granted herein.
15. The provisions of this Order and any actions taken
pursuant hereto shall survive entry of any order which may be entered (a)
confirming any plan of reorganization in any of the Chapter 11 Cases (and the
Obligations shall not be discharged by the entry of any such order or pursuant
to Bankruptcy Code ss. 1141(d)(4), the Debtors having hereby waived such
discharge); (b) converting any of the Chapter 11 Cases to a Chapter 7 case; or
(c) dismissing any of the Chapter 11 Cases, and the terms and provisions of this
Order as well as the Superpriority Claims, Liens and Replacement Liens granted
pursuant to this Order and the Loan Documents shall continue in full force and
effect notwithstanding the entry of such order, and such Superpriority Claims,
Liens and Replacement Liens shall maintain their priority as provided by this
Order until all of the Obligations and all obligations in respect of the matters
set forth in clauses (ii) and (iii) of paragraph 8(b) and paragraph 8(c) are
indefeasibly paid in full and discharged.
16. The findings contained in paragraphs D and E shall be
binding upon all parties in interest, including without limitation, the Debtors
and the Committee, unless (a) a party in interest (including without limitation
the Committee) has properly filed an adversary proceeding or contested matter
(subject to the limitation set forth in the last sentence of decretal paragraph
4) challenging the amount, validity, enforceability, perfection or priority of
the Prepetition Obligations or the Prepetition Agent's liens on the
21
Prepetition Collateral in respect thereof, or otherwise asserting any claims or
causes of action against the Prepetition Agent or the holders of Prepetition
Obligations on behalf of the Debtors' estates, no later than the date that is
ninty (90) days after the date of the appointment of the Committee to commence
such advesary proceedings or contested matter with respect to the due execution,
authorization or perfection of the Prepetition Agent's liens on the Prepetition
Collateral, and (ii) 150 days after the date of appointment of the Committee
with respect to any other challenge relating to the Prepetition Obligations or
the Prepetition Agent's liens on the Prepetition Collateral, or otherwise
relating to any claims or causes of action against the Prepetition Agent or the
holders of the Prepetition Obligations, and (b) the Court rules in favor of the
plaintiff in any such timely filed adversary proceeding or contested matter. If
no such adversary proceeding or contested matter is commenced as of such dates,
the Prepetition Obligations shall constitute allowed claims, not subject to
subordination and otherwise unavoidable, for all purposes in the Chapter 11
Cases and any subsequent Chapter 7 cases, the Prepetition Agent's and the
Prepetition Lenders' liens on the Prepetition Collateral shall be deemed legal,
valid, binding, perfected, not subject to defense, counterclaim, offset of any
kind, subordination and otherwise unavoidable, and the Prepetition Agent, the
Prepetition Lenders, the Prepetition Obligations and the Prepetition Agent's and
the Prepetition Lenders' liens on the Prepetition Collateral shall not be
subject to any other or further challenge by any party in interest seeking to
exercise the rights of the Debtors' estates, including without limitation, any
successor thereto.
17. Entry of this Order shall be without prejudice to any and
all rights, remedies, claims and causes of action which the Prepetition Agent or
the Prepetition Lenders may have against the Debtors or third parties, and
without prejudice to the right of the Prepetition Agent and the Prepetition
Lenders to seek relief from the automatic stay in effect pursuant to Bankruptcy
Code sec. 362, or any other relief in the Chapter 11 Cases, and the right of the
Debtors to oppose any such relief. The provisions of this Order shall be binding
upon and inure to the
22
benefit of the Agent, the Lenders, the Prepetition Agent, the holders of
Prepetition Obligations, the Debtors, and their respective successors and
assigns, including any trustee or other fiduciary hereafter appointed in the
Chapter 11 Cases as a legal representative of the Debtors or the Debtors'
estates.
18. Nothing in this Order or the Loan Documents shall relieve
any Debtor of any obligations or responsibility to comply with environmental
laws enforceable against such Debtor or imposes on any Debtor any obligations to
comply with environmental laws which are not otherwise enforceable against such
Debtor.
19. Notwithstanding any term or provision of the Interim
Order, this Order, or the loan Documents to the contrary, the General
Administrative Agent on behalf of the Lenders, and the Prepetition Agent on
behalf of the Prepetition lenders, shall not exercise any right or remedy with
respect to any security interests, liens or Superpriority Claims on causes of
action of the Debtors against any third party (including, without limitation,
affiliates and insiders of the Debtors) arising directly or indirectly out of
the events relating to the Debtors' accounting irregularities publicly disclosed
in March 2000, or thereafter (collectively, the "THIRD-PARTY CAUSES OF ACTION"),
or the proceeds thereof, unless and until the General Administrative Agent and
the Prepetition Agent have used all commercially reasonable efforts to liquidate
all other Collateral and applied the proceeds thereof to satisfy the Obligations
and the adequate protection obligations of the Debtors, if any, under paragraph
8 of this Order. In the event of any recovery from any of the Third-Party Causes
of Action, the Debtors shall deposit such proceeds in a segregated account of
the Debtors to be held, and not used for working capital or other corporate
purposes, pending the application of such proceeds in accordance with the
provisions hereof. The provisions of this paragraph shall be binding on the
General Administrative Agent, the Lenders, the Prepetition Agent, and the
Prepetition Lenders, and their respective successors and assigns.
23
20. The Liens and Adequate Protection Liens granted pursuant
to this Order and the Loan Documents to the General Administrative Agent and the
Lenders and the Prepetition Agent and the Prepetition Lenders, respectively, to
the extent they attach to a lease of Star-Attack ionizing paint guns or the
proceeds and rents therefrom ("PAINT GUNS") under which a Debtor is the lessor
(a "SUBLEASE"), which Paint Guns are subject to a purported lease (a "MASTER
LEASE") under which such Debtor is the purported lessee from AEA shall be
entitled to payments of any amounts that become due under the Master Lease
postpetition, subject to Section 365(d)(10) of the Bankruptcy Code, except to
the extent that such amounts exceed the amount of the rents from the related
Sublease(s) during the related time period. The foregoing sentence shall not
limit either the amount of any prepetition claim by AEA resulting from rejection
of the Master Lease nor the amount required to cure a default under the Master
Lease as a condition of assumption of the Master Lease. Nothing contained in
this Order shall be deemed to be a determination as to the characterization of
the Master Lease as a true lease or a disguised secured financing and the
Debtors (and any representative of their estates) expressly reserve the right to
seek such a determination by the Court as to such characterization and any
appropriate relief relating thereto, including disgorgement of any payments made
to AEA thereunder.
21. Except as specifically amended, modified or supplemented
hereby, all of the provisions of the Interim Order shall remain in full force
and effect and are ratified by this Order. In the event of any inconsistency
between the terms of this Order and the terms of the Interim Order or the Loan
Documents, the terms of this Order shall control.
Dated: July 19, 2000
Wilmington, Delaware
/s/ illegible signature
------------------------------------
CHIEF UNITED STATES BANKRUPTCY JUDGE
EXHIBIT G
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made 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 from time to
time parties thereto Agreement (the "LENDERS"), TORONTO-DOMINION BANK, HOUSTON
AGENCY, as letter of credit issuing bank, TORONTO DOMINION (TEXAS), INC., as
administrative agent (the "GENERAL ADMINISTRATIVE AGENT"), and THE CIT
GROUP/BUSINESS CREDIT, INC., as collateral agent and underwriter. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "ASSIGNOR") and
the Assignee identified on Schedule l hereto (the "ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the General
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the General
Administrative Agent exchange the attached Notes for a new Note or Notes payable
to the Assignor, in each case in
2
amounts which reflect the assignment being made hereby (and after giving effect
to any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 7.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the Agents
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, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agents to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agents 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, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
4.12(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the Effective Date of Assignment described in Schedule 1 hereto (the "EFFECTIVE
DATE"). Following the execution of this Assignment and Acceptance, it will be
delivered to the General Administrative Agent for acceptance by it and recording
by the General Administrative Agent pursuant to the Credit Agreement, effective
as of the Effective Date (which shall not, unless otherwise agreed to by the
General Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the General Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the General Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee whether such amounts have accrued prior
to the Effective Date or accrue subsequent to the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned
- ------------------ --------------- ------------------------------
$ %
[Name of Assignee] [Name of Assignor]
By: ---------------------------------- By: ----------------------------------
Title Title
Accepted: Consented To:
TORONTO DOMINION (TEXAS), INC., as TORONTO DOMINION (TEXAS) INC., as
General Administrative Agent General Administrative Agent
By: ---------------------------------- By: ----------------------------------
Title Title
EXHIBIT H
TORONTO DOMINION (TEXAS) INC.,
as General Administrative Agent ("TD")
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent ("CITBC")
SAFETY-KLEEN SERVICES, INC.
(the "Company")
August 11, 2000
BLOCKED ACCOUNT AGREEMENT
Bank of America
Attn: Mr. Dale E. Dyer
Ladies and Gentlemen:
We refer to Account Nos. 3750844212 and 8188002446 (the
"ACCOUNTS") maintained with you, Bank of America, N.A., ("Bank") by Safety-Kleen
Services, Inc. (the "COMPANY") into which certain monies, instruments and other
property are deposited from time to time. The Company has granted to TD, as
agent for the lenders under the Amended and Restated Debtor in Possession Credit
Agreement dated as of July 19,2000 (the "CREDIT AGREEMENT") among Safety-Kleen
Services, Inc., the several lenders parties thereto, TD as General
Administrative Agent and CITBC as Collateral Agent, as the same may be amended
from time to time hereafter, a security interest in certain assets and
properties of the Company including, among other things, the Accounts, the
Company's accounts receivable, proceeds of pledged collateral and all monies,
instruments and other property deposited therein and all certificates and
instruments, if any representing or evidencing any of the foregoing. It is a
condition to the continued maintenance of the Accounts with Bank that it agrees
to this Agreement.
1. By signing this Agreement, Bank irrevocably agrees that from the date
hereof the Accounts shall be subject to the exclusive joint direction of
TD and CITBC, and all monies, instruments and other property of the
Company received for deposit in the
2
Accounts shall be held solely in accordance with the terms of this
Agreement. The Accounts shall be subject to joint written instructions
only from TD and CITB C jointly and. absent written notice jointly from
TD and CITBC to the contrary, no officer or agent of the Company shall
have the authority to withdraw or provide payment instructions as to any
amounts in the Accounts or otherwise exercise any authority with respect
to the Accounts. Joint instructions from TD and CITBC (or the Company,
to the extent that TD and CUBC jointly direct Bank to follow the
instructions of the Company) with respect to the disposition of any and
all money deposited in the Accounts shall be understood to refer to, and
be effective as to, only the disposition of collected funds and all
funds as they become collected and available funds from time to time-
Bank is not in any event obligated to transfer uncollected or
unavailable funds out of the Accounts. Bank hereby agrees to:
(1) follow its usual operating procedures for the
handling of any deposit received for the Accounts,
in accordance with its standard account agreement
with Company, except as modified by this
Agreement;
(2) charge the Accounts for all returned remittances,
service charges, and other fees and charges
associated with this Agreement;
(3) follow its usual procedures in the event the
Accounts or any remittance should be or become the
subject of any writ levy, order or other similar
judicial or regulatory order or process;
(4) not commingle any cash or other payments deposited
in the Accounts with other funds; and
(5) maintain a record of all checks, deposits and any
and all other remittance items deposited into the
Accounts and, in addition, to provide to the
Company and/or CITBC, upon request therefor, with
copies of such checks and other remittance items
and deposits received, as well as a monthly
statement and furnish to CITBC its regular bank
statement with respect to the Accounts, subject to
its standard charges for such services.
2. Unless Bank is notified by joint written request of TD and CITBC to the
contrary, Bank shall transfer each Business Day, in same day funds, all
collected and available funds on deposit in the Accounts, less charges
for returned items received on the date of such transfer, to the
following account:
Bank One / FCNBD
ABA #: 071-000-013
For the A/C of Safety-Kleen Services, Inc.
A/C #: 10-64716
3
or such other account as may be designated by joint written notice from
TD and CITBC. Bank agrees that each such transfer of funds by it to said
account shall neither comprise only part of a remittance nor reflect the
rounding off of any funds so transferred. Funds are not available if, in
the reasonable determination of Bank, they are subject to a hold,
dispute or legal process preventing their withdrawal. A "Business Day"
is each day except Saturdays, Sundays and Bank holidays.
3. (a) If the balances in the Accounts are not sufficient to pay Bank
for any returned Check, CITBC agrees to pay Bank on Demand the
amount due bank.
(b) If the balances in the Accounts are not sufficient to compensate
Bank for any fees or charges due Bank in connection with this
Agreement, Company agrees to pay Bank on demand the amount due
Bank. Company will have breached this Agreement if it has not
paid Bank, within 30 days after the demand, the amount due Bank.
(c) Company hereby authorizes Bank, without prior notice, from time
to time to debit any other account Company may have with Bank
for the amount or amounts due Bank under subsection 3 (a) or
3(b).
4. Bank hereby waives and agrees not to assert, claim or endeavor to
exercise, and by executing this Agreement bars and estops itself from
asserting, claiming or exercising, and Bank acknowledges that it has NOT
heretofore received a currently effective notice from any other party
asserting, claiming or exercising, any right of setoff, banker's lien or
other purported form of claim with respect to the Accounts and funds
from time to time therein, except with respect to Bank's eight to charge
the Accounts for any reasonable fees and expenses, or charge backs for
uncollected items or other deposits, all in accordance with its
customary practices and procedures. Except for such rights, Bank shall
have no rights in the Accounts or the funds therein. To the extent Bank
may ever have any such other rights, it hereby expressly subordinates
all such rights to all rights of TD and CITBC.
5. It is expressly agreed that any and all fees and charges associated with
the Accounts shall be payable exclusively by the Company. Such fees and
charges shall be included in the monthly statement furnished to the
Company and CITBC. Such statement shall be accompanied by supporting
documentation as to the fees and charges payable for such month. If the
Company fails to pay any such fees or charges and you cannot setoff any
such amounts from funds in the Accounts, CITBC shall pay same upon your
written request.
6. (a) Bank may terminate this Letter Agreement only upon thirty (30)
days prior written notice to that effect to the Company, TD and
CITBC by closing the Accounts maintained with you and, pending
the effective date of such termination, transferring all
collected mid available funds, if any, in such
4
Accounts as directed by TD and CITBC. After the effective date
of any such termination, Bank shall return anything from time to
time received for deposit in the Accounts marked "account
closed".
(b) Notwithstanding subsection 6(a), Bank may terminate this
Agreement at any 6rQe by written notice to Company, TD and CMC
if any of Company, TD or CITBC breaches any of the terms of this
Agreement.
7. Notwithstanding anything contained herein to the contrary, this
Agreement shall terminate on such date as (i) the Credit Agreement has
terminated in accordance with its terms and (ii) all obligations of the
Company or any of its affiliates thereunder have been indefeasibly paid
in full. TD and CITBC shall notify Bank promptly in writing upon payment
n full of Company's obligations,
8. (a) Bank will not be liable to Company, TD or CITBC for any expense,
claim, loss, damage or cost ("Damages") arising out of or
relating to its performance under this Agreement other d= those
Damages which result directly from its acts or omissions
constituting negligence.
(b) In no event will Bank be liable for any special, indirect,
exemplary or consequential damages, including but not limited to
lost profits.
(c) Bank will be excused from failing to act or delay in acting, and
no such failure or delay shall constitute a breach of this
Agreement or otherwise give rise to any liability of Bank, if
(i) such failure or delay is caused by circumstances beyond
Bank's reasonable control, including but not limited to legal
constraint, emergency conditions, action or inaction of
governmental, civil or military authority, fire, strike, lockout
or other labor dispute, war, riot, theft, flood, earthquake or
other natural disaster, breakdown of public or private or common
carrier communications or transmission facilities, equipment
failure, or act, negligence or default of Company, TD or CITBC
or (ii) such failure or delay resulted from Bank's reasonable
belief that the action would have violated any guideline, rule
or regulation of any governmental authority.
9. Company shall indemnify Bank against, and hold it harmless from, any and
all liabilities, claims, costs, expenses and damages of any nature
(including but not limited to allocated costs of staff counsel, other
reasonable attorney's fees and any fees and expenses incurred in
enforcing this Agreement) in any way arising out of or relating to
disputes or legal actions concerning this Agreement, or any Check. This
section does not apply to any cost or damage attributable to the gross
negligence or intentional misconduct of Bank. Company's obligations
under this section shall survive termination of this Agreement.
10. Company agrees to pay to Bank, upon receipt of Bank's invoice, all
reasonable costs, expenses and attorneys' fees (including allocated
costs for in-house legal services) incurred by Bank in connection with
the enforcement of this Agreement and any
5
instrument or agreement required hereunder, including but not limited to
any such costs, expenses and fees arising out of the resolution of any
conflict, dispute, motion regarding entitlement to rights or rights of
action. Company agrees to pay Bank, upon receipt of Bank's invoice, all
reasonable costs, expenses and attorneys' fees (including allocated
costs for in-house legal services) incurred by Bank in the preparation
and administration of this Agreement (including any amendments hereto or
instruments or agreements required hereunder).
11. This Agreement may be amended only by a writing signed by Company, TD,
CITBC and Bank; except that Bank's charges are subject to change by Bank
upon 30 days' prior written notice to Company.
12. This Agreement may be executed in counterparts; all such counterparts
shall constitute but one and the same agreement.
13. Any written notice or other written communication to be given under this
Agreement shall be addressed to each party at its address set forth on
the signature page of this Agreement or to such other address as a party
may specify in writing. Except as otherwise expressly provided herein,
any such notice shall be effective upon receipts
14. This Agreement controls in the event of any conflict between this
Agreement and any other document or written or oral statement. This
Agreement supersedes all prior understandings, writings, proposals,
representations and communications, oral or written, of any party
relating to the subject matter hereof.
15. Nothing contained in the Agreement shall create any agency, fiduciary,
joint venture or partnership relationship between Bank and TD, CITBC or
Company.
This Letter Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Sincerely,
SAFETY-KLEEN SERVICES, INC.
By: /S/ Henry H. Taylor
---------------------------------
Title: President
Address for notices
SAFETY-KLEEN SERVICES, INC.
ATTENTION KAHN D. HOBBS
1301 GERVAIS ST. SUITE 300, COLUMBIA, SC 29201
FAX: 803-933-4346
6
THE CIT GROUP/BUSINESS CREDIT,
INC., as Collateral Agent
By: /s/ Mark J. Long
---------------------------------
Title: Vice President
Address for Notices
-------------------------------------
-------------------------------------
-------------------------------------
TORONTO DOMINION (TEXAS) INC.,
as General Administrative Agent
By: /s/ Illegible signature
---------------------------------
Title:
Address for Notices
-------------------------------------
-------------------------------------
-------------------------------------
Acknowledged and Agreed To as the date first above written:
Bank of America, N.A.
By: /s/ Dale E. Dyer
--------------------------------
Title: Vice President
Address for Notices
- -------------------------------------
- -------------------------------------
- -------------------------------------
EXHIBIT H
TORONTO DOMINION (TEXAS) INC.,
As General Administrative Agent ("TD")
THE CIT GROUP/BUSINESS CREDIT, INC.,
As collateral Agent ("CITBC")
SAFETY-KLEEN SYSTEMS, INC.
The "Company"
August 11, 2000
BLOCKED ACCOUNT AGREEMENT
Bank One / FCNBD
Attn: Richard Babcock
1 Bank One Plaza
Chicago, Illinois 60670
Ladies and Gentlemen:
We refer to Account No. 10-35872 (the "ACCOUNT") maintained with
you by Safety-Kleen Services, Inc. (the "Company") into which certain monies,
instruments and other property are deposited from time to time. The Company has
granted to TD, as agent for the lenders under the Amended and Restated Debtor in
Possession Credit Agreement dated as of July 19,2000 (the "CREDIT AGREEMENT")
among Safety-Kleen Services, Inc., the several lenders parties thereto, TD as
General Administrative Agent and CITBC as Collateral Agent, as the same may be
amended from time to time hereafter, a security interest in certain assets and
properties of the Company including, among other things, the Account, the
company's accounts receivable, proceeds of pledged collateral and all monies,
instruments and other property deposited therein and all certificates and
instruments, if any representing or evidencing any of the foregoing. It is a
condition to the continued maintenance of the Account with you that you agree to
this Letter Agreement.
1. By signing this Letter Agreement, you irrevocably agree that from the
date hereof the Account shall be subject to the exclusive direction of
TD and CITBC, and all monies, instruments and other property of the
Company received for deposit in the Account shall be held solely in
accordance with the terms of this agreement. The Account shall be
subject to written instructions only from TD and CITBC and, absent
written notice from TD and CITBC to the contrary, no officer or agent of
the Company shall have
the authority to withdraw or provide payment instructions as to any
amounts in the Account or otherwise exercise any authority with respect
to the Account. Instructions from TD and CITBC (or the Company, to the
extent that TD and CITBC direct you to follow the instructions of the
Company) with respect to the disposition of any and all money deposited
in the Account shall be understood to refer to, and be effective as to,
only the collected funds from time to time; you are not in any event
obligated to transfer uncollected funds out of the Account. You hereby
agree to:
(a) follow your usual operating procedures for the handling of
any remittance received in the Account that contains
restrictive endorsements or irregularities such as a
variance between the Written and numerical amounts,
undated or postdated items, missing signature, incorrect
payee, etc.;
(b) endorse and process, in accordance with your customary
collection procedures, all eligible checks and other
remittance items (not covered by subparagragh (a) above)
you receive for deposit into the Account from third-party
remitters and deposit such checks and other remittance
items in the Accounts;
(c) not commingle any cash or other payments deposited in the
Account with other funds; and
(d) maintain a record of all checks, deposits and any and all
other remittance items deposited into the Account and, in
additions, to provide to the Company and/or CITBC your
regular bank statement with respect to the Account,
subject to your standard charges for such services.
2. Unless you are notified by joint written request of TD and CITBC to the
contrary, you shall transfer daily, in available funds, all collected
funds on deposit in the Account No. 10-35872, less charges for returned
item received on the date of such transfer, to the following account:
Bank One/ FCNBD
ABA # 071-000-013
For the A/C for Safety-Kleen Services, Inc.
A/C #: 10-64716
or such other account as may be designated by joint written notice from
TD and CITBC. You agree that each such transfer of funds by you to said
account shall neither comprise only part of a remittance nor reflect the
rounding off of any funds so transferred.
3. Alternatively, absent joint written notice from TD and CITBC to the
contrary, Company may initiate transfers of funds to the
above-referenced account.
4. You hereby waive and agree not to assert, claim or endeavor to exercise,
and by executing this Letter Agreement bar and estop yourself from
asserting, claiming or exercising, and you acknowledge that you have not
heretofore received a notice from any other party asserting, claiming or
exercising, and right of setoff, banker's lien or other purported form
of claim with respect to the Account and funds from time to time
therein, except with respect to your right to charge the Account for any
reasonable fees and expenses, or charge backs with your customary
practices and procedures. Except for such therein, to the extent you may
ever have any such other rights, you hereby expressly subordinate all
such right to all rights of TD and CITBC.
5. It is expressly agreed that any and all fees and charges associated with
the Account shall be payable exclusively by the Company. Such fees and
charges shall be included in the monthly statement furnished to the
Company and CITBC. Such to the fees and charges payable for such month.
If the Company fails to pay any such fees or charges, you may get off
any such amounts from funds in the Account. If there are insufficient
funds in the Account. CITBC shall pay same upon your written request.
6. You may terminate this Letter Agreement only upon thirty (30) days'
prior written notice to that effect to the Company, TD and CITBC by
canceling the Account maintained with you and, pending the effective
date of such
termination, transferring all funds as they become collected funds, if
any, in such Account as directed by TD and CITBC. After the effective
date of any such termination, you shall nonetheless remain obligated
promptly to transfer anything from time to time received in the Account
including, but not Limited to, and funds received for deposit in the
Account as they become collected funds, pursuant to the directions of
the Company of CITBC, as then applicable.
7. Notwithstanding anything contained herein to the contrary, this Letter
Agreement shall terminate on such date as (i) the Credit Agreement has
terminated in accordance with its terms and (ii) all obligations of the
Company or any of its affiliates thereunder have been indefeasibly paid
in full.
8. You will be liable only for direct damages in the event you fail to
exercise ordinary care. You shall be deemed to have exercised ordinary
care if your action or failure to act is in conformity with general
banking usages or is otherwise a commercially reasonable practice of the
banking industry. You shall not be liable for any special, indirect or
consequential damages, even if you have been advised of the possibility
of these damages.
9. The parties acknowledge that you may assign or transfer your rights and
obligations hereunder to a wholly-owned subsidiary of Bank One
Corporation.
10. The Company agrees to indemnify you for, and hold you harmless from, all
claims, damages, losses, liabilities and expenses, including legal fees
and expenses, resulting from or with respect to this Letter Agreement
and the administration and maintenance of the Account and the services
provided hereunder, including, without limitation: (a) any action taken,
or not taken, by you in regard thereto in accordance with the terms of
this Letter Agreement, (b) the breach of any representation or warranty
made by the Company pursuant to this Letter Agreement, (c) any item,
including, without limitation, any automated clearinghouse transaction,
which is returned for any reason, and (d) any failure of the Company to
pay any invoice or charge to you for services in respect to this Letter
Agreement and the Account or any amount owing to you from the Company
with respect thereto or to the service provided hereunder.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.
Sincerely,
Safety-Kleen Systems, Inc.
By: /s/ Henry H. Taylor
----------------------------
Name: Henry H. Taylor
Title: President
The CIT Group/Business Credit, Inc., as Collateral Agent
By: /s/ Mark J. Long
----------------------------
Name: Mark J. Long
Title: Vice President
Toronto Dominion (Texas), Inc. as General Administrative
Agent.
By: /s/ Illegible signature
----------------------------
Name:
Title:
Acknowledged and Agreed To
as the date first above
written:
Bank One N.A.
By: /s/ Richard BabcocK
----------------------------
Title: Vice President
EXHIBIT H
TORONTO DOMINION (TEXAS) INC.,
as General Administrative Agent ("TD")
THE CIT GROUP/BUSINESS CREDIT, INC.,
as collateral Agent ("CITBC")
SAFETY-KLEEN SERVICES, INC.
The "Company"
August 11, 2000
BLOCKED ACCOUNT AGREEMENT
Bank One / FCNBD
Attn: Richard Babcock
1 Bank One Plaza
Chicago, Illinois 60670
Ladies and Gentlemen:
We refer to Account No. 10-64716 (the "ACCOUNT") maintained with
you by Safety-Kleen Services, Inc. (the "COMPANY") into which certain monies,
instruments and other property are deposited from time to time. The Company has
granted to TD, as agent for the lenders under the Amended and Restated Debtor in
Possession Credit Agreement dated as of July 19,2000 (the "Credit Agreement")
among Safety-Kleen Services, Inc., the several lenders parties thereto, TD as
General Administrative Agent and CITBC as Collateral Agent, as the same may be
amended from time to time hereafter, a security interest in certain assets and
properties of the Company including, among other things, the Account, the
company's accounts receivable, proceeds of pledged collateral and all monies,
instruments and other property deposited therein and all certificates and
instruments, if any representing or evidencing any of the foregoing. It is a
condition to the continued maintenance of the Account with you that you agree to
this Letter Agreement.
1. By signing this Letter Agreement, you irrevocably agree that from the
date hereof the Account shall be subject to the exclusive direction of
TD and CITBC, and all monies, instruments and other property of the
Company received for deposit in the Account shall be held solely in
accordance with the terms of this agreement. The Account shall be
subject to written instructions only from TD and CITBC and, absent
written notice from TD and CITBC to the contrary, no officer or agent of
the Company shall have the authority to withdraw or provide payment
instructions as to any amounts in the Account or otherwise exercise any
authority with respect to
the Account. Instructions from TD and CITBC (or the Company, to the
extent that TD and CITBC direct you to follow the instructions of the
Company) with respect to the disposition of any and all money deposited
in the Account shall be understood to refer to, and be effective as to,
only the collected funds from time to time; you are not in any event
obligated to transfer uncollected funds out of the Account. You hereby
agree to:
(a) follow your usual operating procedures for the handling
of any remittance received in the Account that contains
restrictive endorsements or irregularities such as a
variance between the Written and numerical amounts,
undated or postdated items, missing signature, incorrect
payee, etc.;
(b) endorse and process, in accordance with your customary
collection procedures, all eligible checks and other
remittance items (not covered by subparagragh (a) above)
you receive for deposit into the Account from
third-party remitters and deposit such checks and other
remittance items in the accounts;
(c) not commingle any cash or other payments deposited in
the Account with other funds; and
(d) maintain a record of all checks, deposits and any and
all other remittance items deposited into the Account
and, in additions, to provide to the Company and/or
CITBC your regular bank statement with respect to the
Account, subject to your standard charges for such
services.
2. Promptly upon the joint written request of TD and CITBC, you shall
transfer daily, in available funds, all collected funds on deposit in
the Account No. 10-64716, less charges for returned items received on
the date of such transfer, to an account maintained with CITBC at:
The Chase Manhattan Bank
ABA #: 021 000 021
For the A/C of CITBC
A/C #: To be provided in writing by CITBC
or such other account as may be designated by joint written notice from
TD and CITBC. In order to enable CITBC to properly reconcile the
Company's records, you agree that each such transfer of funds by you to
said account shall neither comprise only part of a remittance nor
reflect the rounding off of any funds so transferred.
3. Alternatively, absent joint written notice from TD and CITBC to the
contrary, Company may initiate transfers of funds to CITBC's account at
The Chase Manhattan Bank through ACH.
4. The automatic daily transfer of funds referred to in Paragraph 2 above
may be suspended upon joint written request from TD, CITBC and the
Borrower. Notwithstanding the foregoing, such transfers may be resumed
at any time and from time to time by joint written notice from TD and
CITBC as provided in Paragraph 2.
5. You hereby waive and agree not to assert, claim or endeavor to exercise,
and by executing this Letter Agreement bar and estop yourself from
asserting, claiming or exercising, and you acknowledge that you have not
heretofore received a notice from any other party asserting, claiming or
exercising, and right of setoff, banker's lien or other purported form
of claim with respect to the Account and funds from time to time
therein, except with respect to your right to charge the Account for any
reasonable fees and expenses, or charge backs with your customary
practices and procedures. Except for such therein, to the extent you may
ever have any such other rights, you hereby expressly subordinate all
such right to all rights of TD and CITBC.
6. It is expressly agreed that any and all fees and charges associated with
the Account shall be payable exclusively by the Company. Such fees and
charges shall be included in the monthly statement furnished to the
Company and CITBC. Such to the fees and charges payable for such month.
If the Company fails to pay any such fees or charges, you may get off
any such amounts from funds in the Account. If there are insufficient
funds in the Account. CITBC shall pay same upon your written request.
7. You may terminate this Letter Agreement only upon thirty (30) days'
prior written notice to that effect to the Company, TD and CITBC by
canceling the Account maintained with you and, pending the effective
date of such termination, transferring all funds as they become
collected funds, if any, in such Account as directed by TD and CITBC.
After the effective date of any such termination, you shall nonetheless
remain obligated promptly to transfer anything from time to time
received in the Account including, but not Limited to, and funds
received for deposit in the Account as they become collected funds,
pursuant to the directions of the Company of CITBC, as then applicable.
8. Notwithstanding anything contained herein to the contrary, this Letter
Agreement shall terminate on such date as (i) the Credit Agreement has
terminated in accordance with its terms
and (ii) all obligations of the Company or any of its affiliates
thereunder have been indefeasibly paid in full.
9. You will be liable only for direct damages in the event you fail to
exercise ordinary care. You shall be deemed to have exercised ordinary
care if your action or failure to act is in conformity with general
banking usages or is otherwise a commercially reasonable practice of the
banking industry. You shall not be liable for any special, indirect or
consequential damages, even if you have been advised of the possibility
of these damages.
10. The parties acknowledge that you may assign or transfer your rights and
obligations hereunder to a wholly-owned subsidiary of Bank One
Corporation.
11. The Company Agrees to indemnify you for, and hold you harmless from, all
claims, damages, losses, liabilities and expenses, including legal fees
and expenses, resulting from or with respect to this Letter Agreement
and the administration and maintenance of the Account and the services
provided hereunder, including, without limitation: (a) any action taken,
or not taken, by you in regard thereto in accordance with the terms of
this Letter Agreement, (b) the breach of any representation or warranty
made by the Company pursuant to this Letter Agreement, (c) any item,
including, without limitation, any automated clearinghouse transaction,
which is returned for any reason, and (d) any failure of the Company to
pay any invoice or charge to you for services in respect to this Letter
Agreement and the Account or any amount owing to you from the Company
with respect thereto or to the service provided hereunder.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATINS OF THE PARTIES HEREUNDER
WILL BE GOVERENED BY AND CONTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STAT OF ILLINOIS.
Sincerely,
Safety-Kleen Services, Inc.
By: /s/ Henry H. Taylor
---------------------------------
Name: Henry H. Taylor
Title: President
The CIT Group/Business Credit, Inc., as Collateral Agent
By: /s/ Mark J. Long
---------------------------------
Name: Mark J. Long
Title: Vice President
Toronto Dominion (Texas), Inc. as General Administrative Agent.
By: /s/ Illegible signature
--------------------------------
Name:
Title:
Acknowledged and Agreed To
as the date first above
written:
Bank One N.A.
By: /s/ Richard Babcock
--------------------------------
Title: Vice President
EXHIBIT H
TORONTO DOMINION (TEXAS) INC.,
as General Administrative Agent ("TD")
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent ("CITBC")
SAFETY-KLEEN SYSTEMS, INC
(the "Company")
August 14, 2000
BLOCKED ACCOUNT AGREEMENT
The Northern Trust Company
Attn: Don Dabisch
50 South LaSalle Street
Chicago, IL 60675
Ladies and Gentlemen:
We refer to Account No. 99740 (the "ACCOUNT") maintained with you
by SAFETY-KLEEN SYSTEMS, INC (the "COMPANY") into which certain monies,
instruments and other property are deposited from time to time. The Company has
granted to TD, as agent for the lenders under the Amended and Restated Debtor in
Possession Credit Agreement dated as of July 19, 2000 (the "CREDIT AGREEMENT")
among Safety-Kleen Services, Inc., the several lenders parties thereto, TD as
General Administrative Agent and CITBC as Collateral Agent, as the same may be
amended from time to time hereafter, a security interest in certain assets and
properties of the Company including, among other things, the Account, the
Company's accounts receivable, proceeds of pledged collateral and all monies,
instruments and other property deposited therein and all certificates and
instruments if any representing or evidencing any of the foregoing.
1. By signing this Letter Agreement, you irrevocably agree that from the
date hereof the Account shall be subject to the exclusive direction of
TD and CITBC, and all monies, instruments and other property of the
Company received for deposit in the Account shall be held solely in
accordance with the terms of this agreement. The Account shall be
subject to joint written instructions only from TD and CITBC and, absent
joint written notice from TD and CITBC to the contrary, no officer or
agent of the Company shall have the authority to withdraw or provide
payment instructions as to any amounts in the Account or otherwise
exercise any authority with respect to the Account. Joint written
instructions from TD and CITBC (or the Company, to the extent that TD
and CITBC direct you to follow the instructions of the Company) with
respect to the disposition of any and all money deposited in the Account
shall be understood to refer to, and be
2
effective as to, only the disposition of collected funds and all funds
as they become collected funds from time to time; you are not in any
event obligated to transfer uncollected funds Out of the Account. You
hereby agree to:
(1) follow your usual operating procedures for the handing
of any remittance received in the Account that contains
restrictive endorsements or irregularities such as a
variance between the written and numerical amounts,
undated or postdated items, missing signature, incorrect
payee, etc.;
(2) indorse and process, in accordance with your customary
collection procedures, all eligible checks and other
remittance items (not covered by subparagraph (a) above)
you receive for deposit into the Account from
third-party remitters and deposit such checks and other
remittance items in the Account;
(3) not commingle any cash or other payments deposited in
the Account with other funds; and
(4) maintain a record of all checks, deposits and any and
all other remittance items deposited into the Account
and, in additions, to provide to the Company and/or
CITBC, upon request therefor, photostats of such checks
and other remittance items and deposits received, as
well as a monthly statement, and furnish to CITBC your
regular bank statement with respect to the Account,
subject to your standard charges for such services.
2. Unless you are notified by joint written request of TD and CITBC to the
contrary, you shall transfer daily, in same day funds, all collected
funds on deposit in the Account No. 99740, less charges for returned
items received on the date of such transfer, to the following account:
Bank One / FCNBD
ABA #: 071-000-013
For the A/C of the Company: Safety-Kleen Services, Inc.
A/C #: 10-64716
or such other account as may be designated by joint written notice from
TD and CITBC. You agree that each such transfer of funds by you to said
account shall neither comprise only part of a remittance nor reflect the
rounding off of any funds so transferred.
3 Alternatively, absent joint written notice from TD and CIBC to the
contrary, Company may initiate transfers of funds to the
above-referenced account.
3
4. You hereby waive and agree not to assert, claim or endeavor to exercise,
and by executing this Letter Agreement bar and estop yourself from
asserting, claiming or exercising, and you acknowledge that you have not
heretofore received a notice from any other party asserting, claiming or
exercising, any right of setoff, banker's lien or other purported form
of claim with respect to the Account and funds from time to time
therein, except with respect to Your right to charge the Account for any
reasonable fees and expenses, or charge backs for uncollected items or
other deposits, all in accordance with your customary Practices and
procedures. Except for such rights, you shall have no rights in the
Account or the funds therein. To the extent you may ever have any such
other rights, you hereby expressly subordinate all such rights to all
rights of TD and CITBC.
5. It is expressly agreed that any and all fees and charges associated with
the Account shall be payable exclusively by the Company. Such fees and
charges shall be included in the monthly statement furnished to the
Company and CITBC. Such statement shall be accompanied by supporting
documentation as to the fees and charges payable for such month. If the
Company fails to pay any such fees or charges and you cannot setoff any
such amounts from funds in the Account, CITBC shall pay same upon your
written request.
6. You may terminate this Letter Agreement only upon thirty (30) days prior
written notice to that effect to the Company, TD and CITBC by canceling
the Account maintained with you and, pending the effective date of such
termination, transferring all funds as they become collected funds, if
any, in such Account as directed by TD and CITBC. After the effective
date of any such termination, you shall nonetheless remain obligated
promptly to transfer anything from time to time received in the Account
including, but not limited to, any funds received for deposit in the
Account as they become collected funds, pursuant to the directions of
the Company or CITBC, as then applicable.
7. Notwithstanding anything contained herein to the contrary, for a period
not to exceed 75 days from the date hereof, the Borrower may direct you
to transfer, and you are hereby authorized to transfer, any amounts
owing by the Borrower in respect of sales and use taxes to the
appropriate taxing authorities in accordance with existing arrangements.
8. Notwithstanding anything contained herein to the contrary, this Letter
Agreement shall terminate on such date as (i) the Credit Agreement has
terminated in accordance with its terms and (ii) all obligations of the
Company or any of its affiliates thereunder have been indefeasibly paid
in full.
4
This Letter Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Sincerely,
SAFETY-KLEEN SYSTEMS, INC.
By: /s/Henry H. Taylor
-----------------------------
Title: President
THE CIT GROUP/BUSINESS CREDIT,
INC., as Collateral Agent
By: /s/ Mark J. Long
-----------------------------
Title: Vice President
TORONTO DOMINION (TEXAS) INC.,
as General Administrative Agent
By: /s/ Illegible signature
-----------------------------
Title:
Acknowledged and Agreed To
as the date first above
written:
THE NORTHERN TRUST
By: /s/ Donald D. Dabisch
-------------------------------
Title: Vice President
NOTICE OF ASSIGNMENT
Wachovia Bank, N.A.
Mr. Donald E. Sellers
1401 Main Street, Suite 705
Columbia, SC 29226
Gentlemen:
Reference is made to the account at your institution in the name
of Safety-Kleen Services, Inc. (the "BORROWER"), account number 320652738, and
bearing the name Safety-Kleen Services, Inc., together with all sums now or in
the future in such account (collectively, the ACCOUNT). The Borrower has granted
to Toronto Dominion (Texas), Inc. ("TD"), as agent for the lenders under 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 the Borrower, the several lenders parties thereto, TD, as general
administrative agent and The CIT Group/Business Credit, Inc. ("CITBC") as
collateral agent, a security interest in certain assets and properties of the
Borrower including, among other things, the Account, the Borrower accounts
receivable, proceeds of pledged collateral and all monies, instruments and other
property deposited in the Account and all certificates and instruments, if any
representing or evidencing any of the foregoing. It is a condition to the
continued maintenance of the Account with you that you agree to the terms of
this agreement
Unless you are notified to the contrary by joint written request
of TD and CITBC, you shall, without need for any further inquiry to any other
party, transfer daily, in same day funds, all collected Binds on deposit in the
Account less charges for returned items received on the date of such transfer,
to the following account:
Bank One / FCNBD
ABA #: 071-000-013
For the A/C of Safety-Kleen Services, Inc.
A/C #: 10-64716
or such other account as may be designated by joint written notice from TD and
CITBC. You agree that each such transfer of funds by you to said account shall
neither comprise only part of a remittance nor reflect the rounding off of any
funds so transferred. All joint notifications and instructions from TD and CITBC
shall be reasonable, must be received by -you and you shall have a reasonable
time to comply with such instructions which shall be not less than two (2)
business days exclusive of the day that actual notice is received by you in the
manner specified herein.
You agree that all amounts on deposit in the Account will not be
subject to deduction, setoff, bankers lien or other right in your favor, except
that you retain (a) the right to
2
charge-back against the Account the face amount of any item deposited in or
credited to the Account which is subsequently returned for any reason, the right
to charge the Account for your customary charges for the administration of such
Account or other fees or charges due and payable in connection with such
Account, and the right to charge the Account for any erroneous crediting of
funds by you to such Account, (b) the right to retain a minimum balance in the
Account of $300,000 (the "RESERVE") with respect to such to be applied by you in
respect of any amounts specified in clause (a) of this paragraph for which there
are not otherwise sufficient collected funds in the Account (c) in the event the
Account is closed pursuant to a written notice of the Agent specified in the
preceding paragraph, the right to retain all amounts (to the extent not
prohibited by applicable law) with respect to such Account (including the
Reserve with respect to such Account) for a period of fourteen days from the
date such Account is closed, to be applied by you in respect of any amounts
specified in clause (a) of this paragraph, (d) the adequate protection provided
to you in decretal paragraph 8(c) of the Final Order, and (e) any security
interest to which you are entitled pursuant to Section 4-208 of the Uniform
Commercial Code as in effect in South Carolina.
The Borrower, TD and CITBC hereby grant you an irrevocable power
of attorney, coupled with an interest, to endorse all checks, drafts,
remittances and receipts of every kind and nature (collectively ITEMS) deposited
in the Account. We request you endorse such Items, provided such remittances are
payable to "Safety-Kleen Services, Inc.", or any reasonable variation thereof as
follows: "For deposit to Account". The Borrower agrees that such endorsement
shall constitute the proper endorsement of the Borrower. We understand that you
do not warrant any endorsements.
You may terminate this agreement upon not less than thirty (30)
days prior written notice to that effect to -the Company, TD and CITBC by
canceling the Account maintained with you and, pending the effective date of
such termination, transferring all funds as they become collected funds, if any,
in such Account as in accordance with the terms hereof or as otherwise directed
by joint written notice from TD and CITBC. After the effective date of any such
termination, you shall nonetheless remain obligated to promptly transfer
anything from time to time received in the Account including, but not limited
to, any funds received for deposit in the Account as they become collected
funds, pursuant joint written notice from TD and CITBC.
You are authorized to supply TD, CIT13C and the Lenders upon
TD's, CITBC's or the Lender's request with copies of all written agreements,
balances, written notices, account information and procedures related to the
Account in effect from time to time; provided, however, you shall have no
liability for your failure or delay in providing any such written agreements,
balances, written notices, account information and procedures. You have no
responsibility to provide the Borrower, TD, CITBC or the Lenders any Internal
communications (whether written, oral, or computer generated) by, between, or
among your employees and agents related to the Account, and such internal
communications shall not be considered account information or notice regarding
the Account, Except as specified herein and to the contrary, the agreement
governing the Account and your rules and regulations applicable to the Account
shall continue in full force and effect and you shall not be bound in any way by
any contract, loan
5
Dated: August 11, 2000
Acknowledgment of Notice of Assignment of Account
We hereby acknowledge receipt of the foregoing Notice of
Assignment. We agree that the Account is/are held in the above referenced name
and that no other person or entity is shown by our records to have an interest
in the Account.
Dated August 11, 2000 WACHOVIA BANK, N.A.
By: /s/ Donald E. Sellers, Jr.
-----------------------------
Name: Donald E. Sellers, Jr.
Title: Senior Vice President
SAFETY-KLEEN SERVICES, INC.
By: /s/ Henry H. Taylor
-----------------------------
Name: Henry H. Taylor
Title: President
Acknowledged By:
TORONTO-DOMINION (TEXAS), INC.
By: /s/ Illegible signature
-----------------------------
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Mark J. Long
-----------------------------
Name: Mark J. Long
Title: Vice President