FIFTH AMENDMENT AND AGREEMENT dated as of August 6, 2001 (this
"Amendment"), to the Amended and Restated Debtor in Possession Credit Agreement,
initially dated as of June 11, 2000, amended and restated as of July 19, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement") among SAFETY-KLEEN SERVICES, INC., a Delaware corporation (the
--------
"Borrower"), the financial institutions or entities from time to time parties to
--------
this Agreement (the "Lenders"), THE TORONTO-DOMINION BANK, HOUSTON AGENCY, as
-------
letter of credit issuing bank (the "Issuing Lender"), TORONTO DOMINION (TEXAS),
--------------
INC., as administrative agent (the "General Administrative Agent"), and THE CIT
----------------------------
GROUP/BUSINESS CREDIT, INC. ("CIT"), as collateral agent and underwriter (the
"Collateral Agent"; collectively with the General Administrative Agent, the
----------------
"Underwriters").
-----------
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower has requested that the General Administrative
Agent and the Lenders agree to amend certain provisions of the Credit Agreement
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the General Administrative Agent and the Lenders have agreed
to such amendments only upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Credit Agreement, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, all
--------------
capitalized terms
used herein shall have the meanings given to them in the Credit Agreement.
2. Amendment of Section 1.1. Section 1.1 of the Credit Agreement
------------------------- -------
is hereby amended by inserting the following new definition in its appropriate
alphabetical order:
"Environmental Letters of Credit: as defined in Section 3.1(a)."
-------------------------------
3. Amendment of Section 3.1(a). Section 3.1 of the Credit
------------------------------
Agreement is hereby amended by replacing Section 3.1(a) in its entirety with the
following new Section 3.1(a):
"(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 $75,000,000; (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
-------- -------
$40,000,000 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 and (iii) up to
$30,000,000 of Letters of Credit shall be available solely to provide
additional financial assurance as required for compliance with
Environmental Law with respect to those facilities identified in
Attachment K to the Consent Agreement and Final Order (CAFO) Between
Certain Debtors and the United States Environmental Protection Agency,
as Amended on May 16, 2001 ("Environmental Letters of Credit"). 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, provided, however, that Environmental Letters of Credit shall
--------- -------
expire no later than the date which is 190 days after the Maturity
Date."
4. Fees. As consideration for the Lenders' agreements under this
----
Amendment, the Borrower agrees to pay, upon the execution and delivery hereof,
to the General Administrative Agent, for the account of the Lenders, an
amendment fee (the "Amendment Fee") in an aggregate amount equal to 1/4 of 1% of
-------------
the Revolving Credit Commitments
5. Representations and Warranties. After giving effect to this
--------------------------------
Amendment, the Borrower hereby represents and warrants that all of the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects as of the date hereof (unless stated to relate
to a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date) and
that no Default or Event of Default has occurred and is continuing.
6. 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.
7. Miscellaneous. The parties hereto acknowledge that, by
-------------
separate agreements executed contemporaneously herewith, Bank of America, N.A.
is assigning all of its rights and obligations under the Credit Agreement to
GSCP Recovery, Inc. and Toronto Dominion Texas, Inc. is assigning a portion of
its rights and obligations under the Credit Agreement to GSC Recovery II, L.P.
8. Effectiveness. This Amendment shall become effective on the
-------------
date upon which the General Administrative Agent shall have received (i)
counterparts hereof duly executed by the Borrower, the Issuing Lender and the
Required Lenders and (ii) the Amendment Fee.
9. Continuing Effects. Except as expressly waived or amended
-------------------
hereby, the Credit Agreement shall continue to be and shall remain in full force
and effect in accordance with its terms.
10. Counterparts. This Amendment may be executed by the parties
------------
hereto on one or more counterparts, and all of such counterparts shall be deemed
to constitute one and the
same instrument. This Amendment may be delivered by facsimile transmission of
the relevant signature pages hereof
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
--------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SAFETY-KLEEN SERV1CES, INC.
By: /s/ Larry W. Singleton
------------------------------
Name: Larry W. Singleton
Title: C.F.O.
August 7, 2001
TORONTO DOMINION (TEXAS), INC.
By: /s/ Jano Mott
------------------------------
Name:
Title:
TORONTO-DOMINION BANK,
HOUSTON AGENCY
as Issuing Lender
By: /s/ Jano Mott
------------------------------
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
as Collateral Agent, Underwriter and Lender
By: /s/ Barbara Perich
------------------------------
Name: Barbara Perich
Title: Vice President
GSCP Recovery, Inc.
By: /s/ Thomas Inglesby
------------------------------
Name: Thomas Inglesby
Title:
GSCP Recovery II, L.P.
By: /s/ Thomas Inglesby
------------------------------
Name: Thomas Inglesby
Title:
BANK ONE, NA
By: /s/ Richard Babcock
------------------------------
Name: Richard Babcock
Title: First Vice President
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: /s/ Mark Denatale
------------------------------
Name: Mark Denatale
Title: Authorized Signatory
SENIOR DEBT PORTFOLIO
By Boston Management and Research, as
Advisor
By: /s/ Scott H. Page
------------------------------
Name: Scott H. Page
Title: Vice President