Exhibit 4.28I
AMENDMENT NO. 3
AMENDMENT NO. 3 (this “Amendment”), dated as of October 16, 2006, to the Amended and Restated Loan and Security Agreement, dated as of December 1, 2005 (as amended, supplemented and in effect from time to time, the “Loan Agreement”; capitalized terms used herein and not defined herein shall have the meaning set forth in the Loan Agreement) by and among Credit Suisse, as administrative agent for the LC Facility, Bank of America, N.A., as administrative agent for the Revolving Facility and syndication agent for the LC Facility, Banc of America Securities LLC (“BAS”), as sole arranger under the Revolving Facility, Credit Suisse, as sole bookrunner under the LC Facility, Credit Suisse and BAS, as joint lead arrangers under the LC Facility, Clean Harbors, Inc., a Massachusetts corporation (“Parent”), the Canadian Borrowers, and each of the other Subsidiaries of Parent from time to time a party thereto (each such Subsidiary, together with Parent and Canadian Borrowers, a “Credit Party” and, collectively, “Credit Parties”).
W I T N E S S E T H:
WHEREAS, subsection 11.3 of the Loan Agreement permits the Loan Agreement to be amended from time to time;
WHEREAS, the Loan Agreement is being amended at the request of the Borrowers;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments.
(a) The following defined terms shall be added to Section 1 of the Loan Agreement:
“Amendment No. 3” shall mean Amendment No. 3 to this Agreement, dated as of October 16, 2006.
“Amendment No. 3 Effective Date” shall mean the first Business Day on which all conditions precedent set forth in Section 2 of Amendment No. 3 are satisfied.
(b) Section 1 of the Loan Agreement is hereby amended by deleting the definition of “Significant Subsidiary” in its entirety and replacing it with the following:
“Significant Subsidiary” with respect to any Person means (1) any Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” as defined in Regulation S-X under the Securities Act as such Regulation is in effect on the Amendment No. 3 Effective Date (assuming such Person is the registrant referred to in the definition of “significant subsidiary” in such Regulation) and (2) any Subsidiary that, when aggregated with all other Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in clause (e), (f), (g) or (h) of Section 10.1 has occurred and is continuing, would constitute a Significant Subsidiary under clause (1) of this definition; provided that each reference to “10 percent” in the criteria for a “significant subsidiary” as defined in Regulation S-X under the Securities Act as such Regulation is in effect on the Amendment No. 3 Effective Date shall be replaced with the words “5 percent”.
(c) Section 8.24 is hereby amended by replacing the references to “each Credit Party” therein with “each of Parent and each Significant Subsidiary of Parent”.
(d) Section 9.10 is hereby amended by adding the following proviso thereto at the end of such Section:
“; provided that, notwithstanding the foregoing, if an Event of Default would be occurring and continuing under Section 10.1(e), (f), (g) or (h) if a Credit Party that is not a Significant Subsidiary were in fact a Significant Subsidiary, such Credit Party shall not be considered a Credit Party for purposes of clause (c)(3) or (d) of this Section 9.10 to the extent that the aggregate value of all Investments (other than
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Investments to fund compliance with applicable Environmental Laws) made in all Credit Parties with respect to which an Event of Default described in Section 10.1(e), (f), (g) or (h) has occurred and is continuing (assuming each reference to “Significant Subsidiary of Parent” in Sections 10.1(e), (f), (g) and (h) were to “Credit Party”) after the date of any such Event of Default shall exceed $10.0 million.”
(e) Section 10.1(d) is hereby amended by deleting it in its entirety and replacing it with the following:
“(d) one or more judgments for the payment of money is rendered against any Credit Party in excess of the US Dollar Equivalent of $5.0 million in any one case or in the aggregate and shall remain undischarged, unpaid or unstayed for a period in excess of thirty (30) days after any such judgment or judgments shall have become final and non-appealable;”
(f) Sections 10.1(e), (f), (g) and (h) are hereby amended by replacing the references to “any Credit Party” therein with “Parent or any Significant Subsidiary of Parent”.
Section 2. Conditions to Effectiveness. This Amendment shall become effective as of the date (the “Amendment No. 3 Effective Date”) when, and only when the Administrative Agents shall have received counterparts of this Amendment executed by each Credit Party, the Administrative Agents and a number of Lenders sufficient to constitute the Majority Lenders. The effectiveness of this Amendment (other than Sections Six, Seven and Eight hereof) is conditioned upon the accuracy of the representations and warranties set forth in Section Three hereof.
Section 3. Representations and Warranties. In order to induce the Lenders and the Administrative Agents to enter into this Amendment, Borrowers represent and warrant to each of the Lenders and the Administrative Agents that after giving effect to this Amendment, (a) no Default or Event of Default exists or has occurred and is continuing; (b) after giving effect to this Amendment, no Default or Event of Default will exist or will have occurred and be continuing; and (c) all of the representations and warranties in the Loan Agreement are true and complete in all material respects on and as of the date hereof as if made on the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
Section 4. Amendment No. 3 Affirmative Covenant. Borrowers shall pay within one day after the Amendment No. 3 Effective Date a cash fee in an amount equal to (i) in the case of each LC Facility Lender that delivers a fully and properly executed signature page to this Amendment at or before the Amendment No. 3 Effective Date, 0.10% of the aggregate amount of the Credit Linked Deposits held by such LC Facility Lender immediately prior to the Amendment No. 3 Effective Date, (ii) in the case of each Term Loan Lender that delivers a fully and properly executed signature page to this Amendment at or before the Amendment No. 3 Effective Date, 0.10% of the aggregate of the Term Loans held by such Term Loan Lender immediately prior to the Amendment No. 3 Effective Date and (iii) in the case of each Revolving Lender that delivers a fully and properly executed signature page to this Amendment at or before the Amendment No. 3 Effective Date, 0.10% of the aggregate amount of the Revolving Loan Commitments (whether drawn or undrawn) held by such Revolving Lender immediately prior to the Amendment No. 3 Effective Date.
Section 5. Reference to and Effect on the Loan Agreement. On and after the Amendment No. 3 Effective Date, each reference in the Loan Agreement, to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Loan Agreement, respectively, and in each of the Financing Agreements to “the Loan Agreement,” “thereunder,” “thereof” or words of like import referring to the Loan Agreement shall mean and be a reference to the Loan Agreement as amended by this Amendment. The Loan Agreement and each other Financing Agreement, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Financing Agreements, nor constitute a waiver of any provision of any of the Financing Agreements.
Section 6. Costs, Expenses and Taxes. Borrowers agree to pay all reasonable costs and expenses of the Administrative Agents in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder, if any, in accordance with the terms of the Loan Agreement.
Section 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
[Signature Pages Follow]
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| | CREDIT PARTIES | |
| | | |
| | CLEAN HARBORS, INC. | |
| | ALTAIR DISPOSAL SERVICES, LLC | |
| | BATON ROUGE DISPOSAL, LLC | |
| | BRIDGEPORT DISPOSAL, LLC | |
| | CH INTERNATIONAL HOLDINGS, INC. | |
| | CLEAN HARBORS ANDOVER, LLC | |
| | CLEAN HARBORS ANTIOCH, LLC | |
| | CLEAN HARBORS ARAGONITE, LLC | |
| | CLEAN HARBORS ARIZONA, LLC | |
| | CLEAN HARBORS OF BALTIMORE, INC. | |
| | CLEAN HARBORS BATON ROUGE, LLC | |
| | CLEAN HARBORS BDT, LLC | |
| | CLEAN HARBORS BUTTONWILLOW, LLC | |
| | CLEAN HARBORS CHATTANOOGA, LLC | |
| | CLEAN HARBORS COFFEYVILLE, LLC | |
| | CLEAN HARBORS COLFAX, LLC | |
| | CLEAN HARBORS DEER PARK, L.P. | |
| | CLEAN HARBORS DEER TRAIL, LLC | |
| | CLEAN HARBORS DISPOSAL SERVICES, INC. | |
| | CLEAN HARBORS EL DORADO, LLC | |
| | CLEAN HARBORS FINANCIAL SERVICES COMPANY | |
| | CLEAN HARBORS FLORIDA, LLC | |
| | CLEAN HARBORS GRASSY MOUNTAIN, LLC | |
| | CLEAN HARBORS KANSAS, LLC | |
| | CLEAN HARBORS LAPORTE, L.P. | |
| | | |
| | By: | /s/ Stephen Moynihan | | |
| | Title: | Vice President | | |
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| | CLEAN HARBORS LAUREL, LLC |
| | CLEAN HARBORS LONE MOUNTAIN, LLC |
| | CLEAN HARBORS LONE STAR CORP. |
| | CLEAN HARBORS LOS ANGELES, LLC |
| | CLEAN HARBORS (MEXICO), INC. |
| | CLEAN HARBORS OF TEXAS, LLC |
| | CLEAN HARBORS PECATONICA, LLC |
| | CLEAN HARBORS PLAQUEMINE, LLC |
| | CLEAN HARBORS PPM, LLC |
| | CLEAN HARBORS REIDSVILLE, LLC |
| | CLEAN HARBORS SAN JOSE, LLC |
| | CLEAN HARBORS TENNESSEE, LLC |
| | CLEAN HARBORS WESTMORLAND, LLC |
| | CLEAN HARBORS WHITE CASTLE, LLC |
| | CLEAN HARBORS WILMINGTON, LLC |
| | CROWLEY DISPOSAL, LLC |
| | DISPOSAL PROPERTIES, LLC |
| | GSX DISPOSAL, LLC |
| | HARBOR MANAGEMENT CONSULTANTS, INC. |
| | HARBOR INDUSTRIAL SERVICES TEXAS, L.P. |
| | HILLIARD DISPOSAL, LLC |
| | NORTHEAST CASUALTY REAL PROPERTY, LLC |
| | ROEBUCK DISPOSAL, LLC |
| | SAWYER DISPOSAL SERVICES, LLC |
| | SERVICE CHEMICAL, LLC |
| | TULSA DISPOSAL, LLC |
| | |
| | By: | /s/ Stephen Moynihan | |
| | Title: | Vice President | |
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| | CLEAN HARBORS ENVIRONMENTAL SERVICES, INC |
| | CLEAN HARBORS OF BRAINTREE, INC. |
| | CLEAN HARBORS OF NATICK, INC. |
| | CLEAN HARBORS SERVICES, INC. |
| | MURPHY’S WASTE OIL SERVICE, INC. |
| | CLEAN HARBORS KINGSTON FACILITY CORPORATION |
| | CLEAN HARBORS OF CONNECTICUT, INC. |
| | SPRING GROVE RESOURCE RECOVERY, INC. |
| | CH CANADA HOLDINGS CORP. |
| | CLEAN HARBORS CANADA LP |
| | CH CANADA GP, INC. |
| | CLEAN HARBORS CANADA, INC. |
| | CLEAN HARBORS QUEBEC, INC. |
| | CLEAN HARBORS MERCIER, INC. |
| | 510127 N.B. INC. |
| | |
| | By: | /s/ Stephen Moynihan | |
| | Title: | Vice President | |
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REVOLVING ADMINISTRATIVE AGENT,
ACCOUNTS COLLATERAL AGENT AND
US REVOLVING LENDER
BANK OF AMERICA, N.A.,
Individually and as Agent
By: | /s/ Chris M. O’Halloran | |
Title: | Vice President | |
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