EXECUTION COPY
FOURTH AMENDMENT (this "AMENDMENT") dated as of March 21, 2003 to the
Second Amended and Restated Debtor in Possession Credit Agreement, initially
dated as of June 11, 2000, amended and restated as of July 19, 2000 and as
further amended and restated as of March 22, 2002 and amended by the First
Amendment dated as of September 3, 2002, the Second Amendment dated as of
September 6, 2002 and the Third Amendment dated as of October 24, 2002 (the
"CREDIT AGREEMENT") among SAFETY-KLEEN SERVICES, INC., a Delaware corporation
(the "BORROWER"), the financial institutions or entities from time to time
parties to this Agreement (the "LENDERS"), THE TORONTO-DOMINION BANK, HOUSTON
AGENCY and TORONTO DOMINION (TEXAS), INC., as letter of credit issuing banks
(the "ISSUING LENDERS"), TORONTO DOMINION (TEXAS), INC., as administrative agent
(the "GENERAL ADMINISTRATIVE AGENT") and THE CIT GROUP/BUSINESS CREDIT, INC.
("CIT"), as collateral agent and underwriter (the "COLLATERAL AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower;
WHEREAS, the Borrower has requested that the General Administrative
Agent and the Lenders agree to extend the expiration date of the Lenders'
commitments upon the terms and subject to the conditions set forth herein; and
WHEREAS, the General Administrative Agent and the Lenders have agreed
to the extension only upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Credit Agreement, the parties hereto
hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings given to them in the Credit Agreement.
2. AMENDMENT TO SECTION 1.1. Section 1.1 of the Credit Agreement is
hereby amended by deleting the term "Termination Date" and replacing it with the
following:
"TERMINATION DATE": the earliest to occur of (a) July 31, 2003, (b)
the effective date of a Plan of Reorganization, and (c) the earlier termination
of the Revolving Credit Commitments in accordance with the terms hereof."
3. REDUCTION OF REVOLVING CREDIT COMMITMENT. (a) On the Effective Date
(as defined below), each Lender's Tranche A Revolving Credit Commitment shall be
reduced on a PRO RATA basis such that the aggregate Tranche A Revolving Credit
Commitments of all Lenders is equal to $50,000,000.
(b) On the Effective Date (as defined below), each Lender's Tranche B
Revolving Credit Commitment shall be reduced on a PRO RATA basis such that
the aggregate Tranche B Revolving Credit Commitments of all Lenders is equal
to $100,000,000.
(c) Schedule 1.1A of the Credit Agreement is hereby deleted in its
entirety and replaced with the attached Exhibit A.
2
4. REPRESENTATIONS AND WARRANTIES. After giving effect to this
Amendment, the Borrower hereby represents and warrants that (i) all of the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects as of the date hereof (unless stated to relate
to a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date) and
(ii) no Default or Event of Default has occurred and is continuing.
5. EFFECTIVENESS. This Amendment shall become effective on the date
("EFFECTIVE DATE") upon which (i) the General Administrative Agent shall have
received counterparts hereof duly executed by the Borrower and each Lender and
(ii) each Lender shall have received, in consideration for the execution of this
Amendment, a fee equal to 2.50% of such Lender's Revolving Credit Commitments
(as reduced pursuant to Section 3).
6. CONTINUING EFFECTS. Except as expressly amended hereby, the Credit
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms.
7. FEES AND EXPENSES. The Borrower agrees to pay and reimburse the
General Administrative Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with the negotiation, preparation, execution,
and delivery of this Amendment, including the reasonable fees and expenses of
counsel.
8. COUNTERPARTS. This Amendment may be executed on any number of
separate counterparts (including facsimile counterparts) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. HEADINGS. The headings of the sections of this Amendment are
inserted for convenience only and shall not affect the interpretation hereof.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[BALANCE OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
SAFETY-KLEEN SERVICES, INC.
By: /s/ Larry W. Singleton
-------------------------------------
Name: Larry W. Singleton
Title: EVP & CFO
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent, Issuing
Lender, Underwriter and Lender
By: /s/ Warren Finlay
-------------------------------------
Name: Warren Finlay
Title: President
THE TORONTO-DOMINION BANK,
HOUSTON AGENCY, as an Issuing Lender
By: /s/ Warren Finlay
-------------------------------------
Name: Warren Finlay
Title: Director Credit
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Collateral Agent, Underwriter and Lender
By: /s/ Mark J. Long
-------------------------------------
Name: Mark J. Long
Title: Vice President
BANK ONE, NA, as a Lender
By: /s/ Richard Babcock
-------------------------------------
Name: Richard Babcock
Title: First Vice President
BEAR STEARNS & CO. INC., as a Lender
By: /s/ John E. McDermott
-------------------------------------
Name: John E. McDermott
Title: Senior Managing Director
CONTINENTAL CASUALTY COMPANY, as a Lender
By: /s/ Marilou R. McGirr
-------------------------------------
Name: Marilou R. McGirr
Title: Vice President
GOLDMAN SACHS CREDIT PARTNERS, L.P.,
as a Lender
By: /s/ Mark DeNatale
-------------------------------------
Name: Mark DeNatale
Title: Authorized Signatory
GSC RECOVERY II, L.P., as a Lender
By: GSC Recovery II GP, L.P., its general partner
By: GSC RII, LLC, its general partner
By: GSCP (NJ) Holdings, L.P., its sole member
By: GSCP (NJ), Inc., its general partner
By: /s/ Robert A. Hamwee
-------------------------------------
Name: Robert A. Hamwee
Title: Managing Director
GSC RECOVERY IIA, L.P., as a Lender
By: GSC Recovery IIA GP, L.P., its general partner
By: GSC RIIA, LLC, its general partner
By: GSCP (NJ) Holdings, L.P., its sole member
By: GSCP (NJ), Inc., its general partner
By: /s/ Robert A. Hamwee
-------------------------------------
Name: Robert A. Hamwee
Title: Managing Director
GSCP RECOVERY, INC., as a Lender
By: /s/ Robert A. Hamwee
-------------------------------------
Name: Robert A. Hamwee
Title: Managing Director
HALCYON FUND, L.P., as a Lender
By: Halcyon/Alan B. Slifka Management, LLC,
its managing general partner
By: /s/ James W. Sykes
-------------------------------------
Name: James W. Sykes
Title: Managing Principal
HCM/Z SPECIAL OPPORTUNITIES LLC, as a Lender
By: /s/ Daniel Zwim
-------------------------------------
Name: Daniel Zwim
Title: Managing Member
J.P. MORGAN SECURITIES INC.,
as agent for JPMORGAN CHASE BANK, as a Lender
By: /s/ Eric Rosen
-------------------------------------
Name: Eric Rosen
Title: Authorized Signatory
OAK HILL SECURITIES FUND, L.P.
By: /s/ Scott D. Krase
-------------------------------------
Name: Scott D. Krase
Title: Authorized Signatory
OZ MASTER FUND, LTD.,
as a Lender
By: /s/ Daniel S. Och
-------------------------------------
Name: Daniels S. Och
Title: Senior Managing Member
OZF CREDIT OPPORTUNITIES MASTER FUND, LTD.,
as a Lender
By: /s/ Daniel S. Och
-------------------------------------
Name: Daniel S. Och
Title: Senior Managing Member
OZF CREDIT OPPORTUNITIES MASTER FUND II, LTD.,
as a Lender
By: /s/ Daniel S. Och
-------------------------------------
Name: Daniel S. Och
Title: Senior Managing Member
RESERVOIR CAPITAL PARTNERS, L.P.,
as a Lender
By: Reservoir Capital Group, L.L.C., general partner
By: /s/ Craig Huff
-------------------------------------
Name: Craig Huff
Title: Managing Member
RESERVOIR CAPITAL MASTER FUND, L.P.,
as a Lender
By: Reservoir Capital Group, L.L.C., general partner
By: /s/ Craig Huff
-------------------------------------
Name: Craig Huff
Title: Managing Member
SPCP GROUP, as a Lender
By: /s/ Unintelligible Signature
-------------------------------------
Name: Jeffrey A. (?)
Title: CFO
URBAN CAPITAL LLC, as a Lender
By: /s/ John Urban
-------------------------------------
Name: John Urban
Title: President
EXHIBIT A
SCHEDULE 1.1 A TO THE
AMENDED AND RESTATED
CREDIT AGREEMENT
COMMITMENTS OF LENDERS
Tranche A Tranche B Total
Revolving Credit RevolvingCredit Revolving Credit
Commitment Commitment Commitments
---------- ---------- -----------
Financial Institution
Toronto Dominion (Texas), Inc. $20,000,000 $8,000,000 $28,000,000
Bank One, NA 3,333,334 -- 3,333,334
Bear, Stearns & Co. Inc. -- 26,000,000 26,000,000
The CIT Group/Business Credit, Inc. 20,000,000 -- 20,000,000
Continental Casualty Company 6,000,000 6,000,000
Goldman Sachs Credit Partners, L.P. -- 12,412,800 12,412,800
GSC Recovery II, L.P. 3,333,333 2,776,515 6,109,849
GSC Recovery IIA, L.P. -- 1,605,535 1,605,535
GSCP Recovery, Inc. 3,333,333 1,617,950 4,951,284
Halcyon Fund, L.P. -- 3,587,200 3,587,200
HCM/Z Special Opportunities LLC -- 10,400,000 10,400,000
JPMorgan Chase Bank -- 4,000,000 4,000,000
Oak Hill Securities Fund, L.P. -- 4,000,000 4,000,000
OZ Master Fund, Ltd. -- 4,372,800 4,372,800
OZF Credit Opportunities Master Fund, Ltd. -- 1,168,800 1,168,800
OZF Credit Opportunities Master Fund II, Ltd. -- 1,658,400 1,658,400
Reservoir Capital Master Fund, L.P. -- 800,000 800,000
Reservoir Capital Partners, L.P. -- 1,200,000 1,200,000
SPCP Group -- 6,400,000 6,400,000
Urban Capital LLC -- 4,000,000 4,000,000
TOTAL $50,000,000 $100,000,000 $150,000,000
=========== ============ ============