Exhibit 4.27
EXECUTION COPY
DEPOSIT ACCOUNT CONTROL AND INTERCREDITOR AGREEMENT
This DEPOSIT ACCOUNT CONTROL AND INTERCREDITOR AGREEMENT (this "Agreement")
dated as of September 6, 2002 is made by and among CLEAN HARBORS, INC., a
Massachusetts corporation (the "Pledgor"), FLEET NATIONAL BANK, in its
capacities as issuer of letters of credit under the Fleet Facility Agreement
referred to below and as depositary bank ("Fleet") and ABLECO FINANCE LLC, in
its capacity as agent for the lenders under the Ableco Financing Agreement
referred to below ("Ableco").
WHEREAS, the Pledgor and Fleet are parties to that certain Letter of Credit
Facility, Reimbursement and Security Agreement dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Fleet
Facility Agreement") between Pledgor and Fleet, pursuant to which, among other
things, (i) Fleet has agreed, subject to the terms and conditions contained
therein, to issue certain letters of credit for the account of the Pledgor, (ii)
the Pledgor has deposited cash into the Collateral Account (as defined below),
and (iii) the Pledgor has pledged, assigned and granted to Fleet a present and
continuing senior first priority lien on and security interest in and to the
Collateral Account and in all funds and other amounts from time to time credited
to or deposited or held in the Collateral Account as security for the
obligations of the Pledgor to Fleet; and
WHEREAS, the Pledgor, certain of the Pledgor's subsidiaries (the
"Borrowers"), the lenders party thereto from time to time (the "Lenders") and
Ableco are parties to that certain Financing Agreement dated as of the date
hereof (as amended, supplemented or otherwise modified from time to time, the
"Ableco Financing Agreement"), pursuant to which, among other things, the
Lenders have agreed, subject to the terms and conditions contained therein, to
make certain term loans and extend certain other credit accommodations to the
Borrowers, and the Pledgor has pledged, assigned and granted to Ableco, for the
benefit of the Lenders, a subordinated second priority lien on and security
interest in the Collateral Account and in the funds and other amounts from time
to time deposited or held in the Collateral Account as security for the
obligations of the Pledgor to Ableco and the Lenders; and
WHEREAS, the parties wish to set forth the relative priorities of the
interests of Fleet and Ableco in the Collateral Account and in the funds and
other amounts from time to time deposited or held in the Collateral Account;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes hereof the following terms have the following
definitions:
(a) "Ableco Documents" shall mean the Ableco Financing Agreement, the
other Loan Documents (as such term is defined in the Ableco Financing
Agreement), all notes issued in connection with the Ableco Financing Agreement,
and any and all other agreements, instruments or documents delivered or to be
delivered by the Pledgor, the other Borrowers, or any of their affiliates to
Ableco and the Lenders in connection therewith, in each case, as the same may be
supplemented and amended from time to time.
(b) "Ableco Obligations" shall mean any and all indebtedness, obligations
and liabilities of the Pledgor to Ableco and the Lenders under the Ableco
Documents, whether now existing or hereafter arising, whether direct or
indirect, absolute or contingent, due or to become due, including without
limitation, the Pledgor's obligation to repay the extensions of credit under the
Ableco Financing Agreement, and all interest, fees, expenses, indemnification
obligations and other amounts from time to time owing from the Pledgor to
Ableco, including, without limitation, interest which accrues after the
commencement of any proceeding in respect of any partial liquidation or
reorganization, or bankruptcy, insolvency, receivership or other statutory or
common law proceedings or arrangements involving the Pledgor or the readjustment
of its liabilities or any assignment for the benefit of creditors or any
marshalling of the Pledgor's assets or liabilities, and all premium and
termination fees, if any, and other fees and expenses payable in accordance with
the terms of the Ableco Documents.
(c) "Collateral" shall mean (i) the Collateral Account, and any and all
cash, deposits, money, checks, drafts, wire transfers, funds and other amounts
from time to time credited to or deposited or held in the Collateral Account,
and (ii) any and all interest, dividends, distributions and other income
accruing on or payable in respect of the Collateral, and (iii) any and all
proceeds of the foregoing.
(d) "Collateral Account" shall mean the high yield savings deposit account
#__________ (and any and all sub-accounts thereof, replacement accounts
therefore and other accounts relating thereto) maintained by the Pledgor at
Fleet for the benefit of Fleet.
1
(e) "Fleet Documents" shall mean the Fleet Facility Agreement, the letters
of credit issued thereunder, all letter of credit application and reimbursement
agreements executed and/or delivered by the Pledgor to Fleet in connection
therewith, and all other related agreements, instruments or documents delivered
or to be delivered by Pledgor in connection therewith, in each case, as the same
may be supplemented and amended from time to time.
(f) "Fleet Obligations" shall mean any and all indebtedness, obligations
and liabilities of the Pledgor to Fleet under the Fleet Documents and under this
Agreement, whether now existing or hereafter arising, whether direct or
indirect, absolute or contingent, due or to become due, including without
limitation, the Pledgor's obligation to reimburse Fleet for all drawings under
letters of credit issued under the Fleet Documents, and all interest, fees,
expenses, indemnification obligations and other amounts from time to time owing
from the Pledgor to Fleet under the Fleet Documents and under this Agreement,
including, without limitation, interest which accrues after the commencement of
any proceeding in respect of any partial liquidation or reorganization, or
bankruptcy, insolvency, receivership or other statutory or common law
proceedings or arrangements involving the Pledgor or the readjustment of its
liabilities or any assignment for the benefit of creditors or any marshalling of
the Pledgor's assets or liabilities, and all premium and termination fees, if
any, and other fees and expenses payable in accordance with the terms of the
Fleet Documents.
(g) "Fleet's LC Commitment" shall mean the commitment of Fleet to issue
letters of credit to or for the account of the Pledgor under the Fleet
Documents.
(h) "Fleet's LC Exposure" shall mean, at any time, the sum of (i) 100% of
the aggregate undrawn amount of all outstanding standby and documentary letters
of credit issued by Fleet to or for the account of the Pledgor at such time plus
(y) the aggregate amount of all disbursements made by Fleet in respect of
letters of credit issued by Fleet to or for the account of the Pledgor that have
not yet been reimbursed by or on behalf of the Pledgor at such time.
(i) "Termination of the Fleet Obligations" shall mean the time when all of
the Fleet Obligations have been fully paid in cash, no letters of credit are
outstanding, and Fleet has no further obligation to issue additional letters of
credit or extend credit accommodations to or for the account of the Pledgor
under the Fleet Facility Agreement.
(j) "Termination Notice" shall mean a written notice from Fleet to the
Pledgor and Ableco stating that Termination of the Fleet Obligations has
occurred.
2. Acknowledgment of Security Interests. The Pledgor and Ableco hereby
acknowledge and agree that unless and until such time as Fleet shall have
delivered to the Pledgor and Ableco a Termination Notice, the Collateral Account
and all of the Collateral are and will continue to be subject to the senior
first priority liens and security interests of Fleet, and that the liens and
security interests of Fleet are senior in priority to all other liens, security
interests and encumbrances of any kind, including, without limitation, any liens
in favor of Ableco. The Pledgor and Fleet hereby acknowledge and agree that the
Collateral Account and all of the Collateral are subject to the liens and
security interests of Ableco, which liens and security interests, unless and
until such time as Fleet shall have delivered to the Pledgor and Ableco a
Termination Notice, are and will continue to be junior and subordinated in all
respects to the liens and security interests in favor of Fleet.
3. Representations, Warranties and Covenants of the Pledgor Regarding the
Collateral.
(a) Except for (i) the senior first priority liens and security interests
in favor of Fleet, and (ii) the subordinated second priority liens and security
interests in favor of Ableco, the Pledgor is the owner of the Collateral free
and clear of any and all liens, security interests or other encumbrances of any
kind. The Pledgor agrees not to grant any lien on or security interest in, or
permit the existence of any lien or encumbrance on or security interest in, the
Collateral Account or any of the other Collateral (except for the senior first
priority liens and security interests in favor of Fleet and the subordinated
second priority liens and security interests in favor of Ableco).
(b) The Pledgor (i) hereby agrees to promptly execute and deliver to Fleet
and Ableco such financing statements (to the extent, if any, that the Pledgor's
signature is required thereon), certificates and other documents or instruments
as may be necessary or appropriate to enable Fleet and/or Ableco to perfect,
protect or from time to time renew the liens and security interests granted
hereby, including, without limitation, such financing statements, control
agreements, certificates and other documents as may be necessary to perfect a
security interest in any additional Collateral hereafter acquired by the Pledgor
or in any replacements or proceeds thereof, and (ii) hereby authorizes Fleet and
Ableco to execute (to the extent, if any, that any signature is required
thereon), file and refile, in their own names or in the name of the Pledgor, in
each case at the Pledgor's expense, such financing statements, continuation
statements and other documents (including, without limitation, this Agreement)
in such offices as the Pledgor may reasonably deem necessary or appropriate in
order to perfect and preserve the rights and
2
interests granted to Fleet and Ableco. The Pledgor hereby irrevocably appoints
each of Fleet and Ableco as its true and lawful attorney for the purpose of
executing and filing any such financing statements or other agreements or
instruments.
4. Control over the Collateral Account and the Collateral; Subordination of
Rights and Interests of Ableco. Each of the parties hereto hereby acknowledges
and agrees as follows:
(a) Unless and until such time as Fleet shall have delivered a Termination
Notice to the Pledgor and Ableco, (i) Fleet has and shall continue to have
"control" of the Collateral Account and the Collateral (within the meaning of
such term under Section 9-104 of the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts) and full power and authority to set-off, apply,
debit, withdraw, dispose of and transfer funds from the Collateral Account
without the necessity of notifying or obtaining the consent of the Pledgor or
Ableco, (ii) except as otherwise provided in Sections 4(e), 6(a) and 6(b) of
this Agreement, Fleet shall not be obligated to comply with, and shall have no
liability to the Pledgor or Ableco for refusing to comply with, any instructions
originated by the Pledgor or Ableco with respect to the Collateral Account or
the Collateral, including, without limitation, any instructions or directions
with respect to the disposition of funds in the Collateral Account, (iii)
regardless of the time, order or manner of attachment or perfection, or any
provision of the Ableco Documents to the contrary, the rights and interests of
Fleet in and to the Collateral Account and the Collateral have and shall
continue to have priority over and shall be senior in all respects to any rights
or interests of Ableco in and to the Collateral Account and the Collateral, and
(iv) it is the intent of the parties hereto that, except as otherwise provided
in Section 6(b), Termination of the Fleet Obligations shall have occurred before
any portion of the Collateral is delivered to Ableco or applied to the Ableco
Obligations.
(b) Until such time as the Ableco Obligations have been paid in full and
the Ableco Financing Agreement shall have terminated, (i) Ableco has and shall
continue to have "control" of the Collateral Account and the Collateral (within
the meaning of such term under Section 9-104 of the Uniform Commercial Code as
in effect in The Commonwealth of Massachusetts) and shall be able to direct the
disposition of funds from the Collateral Account without the necessity of
notifying or obtaining the consent of the Pledgor, and (ii) except as otherwise
provided in Section 6(a), Fleet will comply with all notifications it receives
directing it to transfer, redeem, or permit the withdrawal of any property in
the Collateral Account originated by Ableco without further consent by the
Pledgor; provided that, unless and until such time as Fleet shall have delivered
a Termination Notice to Ableco, Ableco shall not, except as otherwise provided
in Section 6(b), direct or instruct Fleet to take any action with respect to the
Collateral Account or the Collateral or otherwise assert or attempt to enforce
or avail itself of any lien or security interest in the Collateral or otherwise
realize upon the Collateral, and, except as otherwise provided in Section 6(b),
Fleet shall not be obligated to comply with any direction or instruction
originated by Ableco with respect to the Collateral Account or the Collateral,
including, without limitation, any instruction or direction regarding the
disposition of funds in the Collateral Account.
(c) Unless and until such time as (i) Fleet shall have delivered a
Termination Notice to the Pledgor, and (ii) the Ableco Obligations have been
repaid in full and the Ableco Financing Agreement has terminated, the Pledgor
shall have no right to access or withdraw any of the Collateral from the
Collateral Account or to instruct or direct Fleet to make withdrawals from or
transfer or dispose of any funds in the Collateral Account; and Fleet shall not,
except as otherwise provided in Section 6(a), comply with any withdrawal
request, direction or instruction originated by the Pledgor with respect to the
Collateral Account and the Collateral unless Ableco has previously consented to
such withdrawal request, direction or instruction in writing and notified Fleet
to comply with same. Promptly, but in any event within 3 business days after
Termination of the Fleet Obligations, Fleet shall deliver the Termination Notice
to the Pledgor and Ableco.
(d) Notwithstanding anything in this Agreement or in the Ableco Documents
to the contrary, (i) the respective rights and priorities of the liens and
security interests of Fleet and Ableco set forth herein shall not be altered,
impaired or affected in any way by any amendment, modification, supplement to or
restatement of the Fleet Documents, any increase in Fleet's LC Commitment or in
Fleet's LC Exposure, any application of the Collateral against the Fleet
Obligations, or any release or reduction in the amount of the Collateral (and
Fleet expressly reserves the right, prior to the delivery of a Termination
Notice to Ableco, to amend, modify, supplement or restate the Fleet Documents,
to increase Fleet's LC Commitment, to apply the Collateral against the Fleet
Obligations, or to release all or any portion of the Collateral, without the
necessity of giving notice to or obtaining the consent of Ableco), and (ii)
until such time as Fleet shall have delivered a Termination Notice to the
Pledgor and Ableco, except as otherwise provided in Section 6(b), Fleet shall at
all times be authorized to, and shall act and refrain from acting in respect of,
and otherwise deal with, the Collateral and the Collateral Account, in its sole
and absolute discretion, without any obligation whatsoever on the part of Fleet
to notify or obtain the consent of the Pledgor or Ableco.
(e) At the time of delivery by Fleet to the Pledgor and Ableco of a
Termination Notice, the liens and security interests of Fleet in the Collateral
and the Collateral Account shall automatically be released, discharged and
terminated and Fleet shall, at the request of Ableco, or at the election of
Fleet (which election may be made by Fleet at any time in its sole discretion),
cause (and the Pledgor hereby authorizes and directs Fleet to cause) any
remaining Collateral in the Collateral Account to be
3
delivered to Ableco (or to a depository institution specified in writing by
Ableco), to be held by or for the benefit of Ableco as security for the Ableco
Obligations of Ableco and the Lenders.
(f) If at any time Fleet shall exercise any of its rights with respect to
the Collateral (including, the right to apply any portion of the Collateral
against the Fleet Obligations or to set-off, foreclose, liquidate or otherwise
realize upon any portion of the Collateral), Fleet shall apply the proceeds of
the Collateral and the Collateral Account as follows: (i) first, to the payment
of any and all fees, costs and expenses incurred by Fleet in exercising its
rights (including, without limitation, reasonable attorney's fees), and (ii)
second, to the repayment of any and all Fleet Obligations. If, following
Termination of the Fleet Obligations, there shall remain any surplus Collateral
in the Collateral Account which would otherwise, but for the security interest
of Ableco, be payable to the Pledgor, Fleet shall, unless directed otherwise by
a court of competent jurisdiction or by Ableco, deliver such surplus Collateral
to Ableco (or to a depository institution specified in writing by Ableco) to be
held by or for the benefit of Ableco and the Lenders as collateral for and/or
applied to the repayment of the Ableco Obligations in accordance with the terms
of the Ableco Documents. In exercising any rights with respect to the
Collateral, so long as Fleet acts in a commercially reasonable manner, Fleet may
proceed in any manner which Fleet, in its sole discretion, shall elect, without
in any way incurring any liability or obligations to the Pledgor or Ableco.
Except as otherwise expressly set forth in Section 6 of this Agreement, in no
event shall Fleet be obligated to deliver any portion of the Collateral to the
Pledgor or Ableco unless and until such time as Termination of the Fleet
Obligations has occurred.
(g) In the event that Fleet shall exercise any of its rights with respect
to the Collateral under the Fleet Documents or under the provisions of any
applicable law (including, without limitation, the right of set-off), any
portion of the Collateral applied to the repayment of the Fleet Obligations
shall automatically be released and Ableco shall have no rights, claims or
interests against Fleet or against such portion of the Collateral. Ableco agrees
that promptly upon the written request of Fleet therefor, Ableco shall execute,
deliver and file any and all such termination statements, lien releases or other
agreements or instruments as Fleet shall reasonably deem necessary or
appropriate in order to give effect to the foregoing provisions of this Section
4(g).
5. Application, Set-off and other Rights of Fleet. The Pledgor and Ableco
acknowledge and agree that under the terms of the Fleet Documents and applicable
law, regardless of the adequacy of the Collateral or any other property or
collateral securing the Fleet Obligations, Fleet (a) may withdraw and apply from
the Collateral Account at any time and from time to time such funds as may be
necessary (i) to reimburse Fleet for any drawing made on any letter of credit
issued by Fleet under the terms of the Fleet Documents, and (ii) to cover any
fees, costs, expenses (including reasonable attorney's fees)and other amounts
for which the Pledgor may from time to time be liable to Fleet under the terms
of the Fleet Documents, (b) may set-off the Collateral and the Collateral
Account and any deposits or other sums at any time credited thereto against the
Fleet Obligations, and (c) has all rights and remedies of a secured party under
the Uniform Commercial Code (as in effect in Massachusetts), including, without
limitation, the rights of a secured party under Section 9-607 of the Uniform
Commercial Code. In no event shall the liens, rights and interests of Ableco, or
any term or provision of this Agreement, impair or affect in any way any rights
or remedies (including, without limitation, any rights of set off) that Fleet
may have against the Pledgor, the Collateral Account, the Collateral or any
other property or assets of the Pledgor prior to the date on which Fleet
delivers the Termination Notice to the Pledgor and Ableco.
6. Periodic Withdrawals from the Collateral Account. The Pledgor and Ableco
acknowledge and agree that pursuant to the terms of the Fleet Documents so long
as no Default or Event of Default (as such term is defined in the Fleet
Documents on the date hereof) shall have occurred and be continuing or shall
arise therefrom:
(a) unless Ableco has notified Fleet that an event of default has occurred
and is continuing under the Ableco Financing Agreement, on the fifteenth day of
each calendar month (or if such day is not a business day, on the next
succeeding business day), commencing on October 15, 2002, Fleet shall withdraw
from the Collateral Account the aggregate amount of interest that has accrued on
the funds on deposit in the Collateral Account during the prior month, and shall
transfer such interest to Pledgor in accordance with the wire transfer
instructions of the Pledgor set forth on Schedule I hereto (whereupon such
interest shall no longer be subject to the liens and security interests of Fleet
or Ableco); and
(b) from time to time (but not more frequently than once each month) after
the earlier of (x) 3 Business Days after the date on which Fleet's LC Commitment
terminates, and (y) March 31, 2003, upon the written request of Ableco, Fleet
shall withdraw from the Collateral Account the amount, if any, by which (i) the
aggregate amount of funds on deposit in the Collateral Account (exclusive of the
interest amounts referred to in Section 6(a)) exceeds (ii) the product of (A)
one hundred three percent (103%) multiplied by (B) Fleet's LC Exposure at such
time, and shall transfer such excess amount to Ableco in accordance with the
wire transfer instructions of Ableco set forth on Schedule I hereto to be
applied by Ableco against the Ableco Obligations (whereupon such excess amount
shall no longer be subject to the liens and security interests of Fleet).
4
Each of the Pledgor and Ableco hereby irrevocably authorize and direct Fleet to
make the transfers described in this Section 6, and hereby agree that in no
event shall Fleet be liable or obligated to the Pledgor or Ableco for any
transfer made in accordance with this Section 6, or for any failure by Fleet to
make any such transfer if Fleet, in its reasonable determination, believes that
a Default or Event of Default has occurred and is continuing under the Fleet
Documents, or that such transfer may expose Fleet to any obligation, liability
or expense (other than any administrative costs and expenses related to or
incurred in connection with the transfers described in this Section 6).
7. No Consent Required; Authority of Fleet to Act. Notwithstanding any
separate agreement that the Pledgor may have with Ableco or any other party, the
Pledgor and Ableco acknowledge and agree that unless and until such time as
Fleet shall have delivered a Termination Notice to the Pledgor and Ableco, Fleet
shall be authorized and directed to take such actions with respect to the
Collateral and the Collateral Account as Fleet, in its sole discretion,
determines to be necessary, appropriate or in the best interests of Fleet
(including, without limitation, exercising any rights of set-off which Fleet may
have with respect to the Collateral or the Collateral Account), in each case,
without the necessity of giving prior notice to, or obtaining any consent from,
the Pledgor or Ableco.
8. Standard of Care. Neither Fleet nor any of its officers, directors,
employees, agents or affiliates shall be liable for any action taken or not
taken by it under, or in connection with, this Agreement, except for gross
negligence or willful misconduct by Fleet as determined by a final and
non-appealable judgment of a court of competent jurisdiction. IN NO EVENT SHALL
FLEET BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
WHATSOEVER (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES) EVEN IF IT
IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF
ACTION IN WHICH ANY SUCH DAMAGES MAY BE CLAIMED. SO LONG AS FLEET SHALL HAVE
ACTED (OR REFRAINED FROM ACTING) IN GOOD FAITH, IT SHALL NOT BE LIABLE FOR ANY
ERROR OF JUDGMENT IN ANY ACTION TAKEN, SUFFERED OR OMITTED BY, OR FOR ANY
MISTAKE OF FACT OR LAW, UNLESS SUCH ACTION IS FOUND TO CONSTITUTE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT BY A FINAL AND NON-APPEALABLE JUDGMENT OF A
COURT OF COMPETENT JURISDICTION. Fleet will not incur any liability hereunder by
acting or not acting in reliance upon any notice, consent, certificate,
statement or other instrument or writing believed by it to be genuine and signed
or sent by the proper party or parties. Fleet shall not incur liability
hereunder for any notice, consent, certificate, wire instruction, telecopy, or
other writing which is delayed, canceled or changed without the actual knowledge
of Fleet. Fleet shall not incur any liability for acts or omissions of any
domestic or foreign depository or book-entry system for the central handling of
financial assets or any domestic or foreign custodian or subcustodian. Fleet
shall not be responsible for the title, value, validity or genuineness of any
Collateral subject to this Agreement. Fleet shall have no liability to the
Pledgor or any other person or entity for remitting any portion of the
Collateral in the Collateral Account to Ableco after the delivery by Fleet of a
Termination Notice even if contrary instructions have been delivered to Fleet by
the Pledgor and Fleet shall have no duty to investigate whether and to what
extent any Ableco Obligations shall then be outstanding.
9. No Additional Duties. Fleet shall have no responsibilities, obligations or
duties other than those expressly set forth in this Agreement, and no implied
duties, responsibilities or obligations shall be read into this Agreement;
without limiting the foregoing, Fleet shall have no duty to preserve, exercise
or enforce rights in the Collateral (against prior parties or otherwise). This
Agreement is not intended by the parties to impose or create any obligations or
duties upon Fleet greater than, or in addition to, the customary and usual
obligations and duties of Fleet to the Pledgor, except as otherwise provided in
Section 6. The Pledgor and Fleet acknowledge that this Agreement supplements the
Pledgor's existing cash management and other relationships with Fleet and in no
way is this Agreement intended to abridge any rights that Fleet might otherwise
have under the Fleet Documents or applicable law. Fleet makes no representations
and assumes no responsibility as to the validity, enforceability or perfection,
if any, of Ableco's purported liens and security interests in the Collateral,
other than Fleet's obligation to act in accordance with the material terms of
this Agreement.
10. Force Majeure. Fleet shall not be responsible for delays or failures in
performance resulting from acts beyond its control, including Acts of God,
strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization,
expropriation, currency restrictions, governmental regulations superimposed
after the fact, fire, communication line failures, power failures, earthquakes
or other disasters.
11. Release and Indemnification. The Pledgor and Ableco hereby release Fleet
and its respective affiliates, officers and employees from any and all claims,
causes of action, liabilities, losses, lawsuits, recoupment, demands and/or
damages, fines, penalties and expenses that may arise as a result of the
transactions contemplated by this Agreement or as a result of Fleet entering
into or acting in accordance with this Agreement, making any transfers of funds
contemplated by this Agreement, or
5
following any instructions given to Fleet by Ableco or the Pledgor in accordance
with the terms of this Agreement, except for proven gross negligence or willful
misconduct by Fleet. The Pledgor agrees to indemnify and hold harmless Fleet and
its respective affiliates, officers and employees from and against any and all
claims, causes of action, liabilities, losses, lawsuits, recoupment, demands
and/or damages, fines, penalties and expenses, including, without limitation,
out of pocket expenses and any and all court costs and reasonable attorneys'
fees, that may arise as a result of Fleet entering into or taking or failing to
take any action under this Agreement, making any transfers of funds contemplated
by this Agreement, or following any instructions given to Fleet by Ableco or the
Pledgor under this Agreement, except for gross negligence or willful misconduct
by Fleet as determined by a final non-appealable judgment of a court of
competent jurisdiction. This indemnification shall survive the termination of
this Agreement. Ableco will indemnify Fleet, and its officers, directors,
employees, and agents, against claims, liabilities, and reasonable expenses
(including reasonable attorney fees and disbursements) arising out of (i)
directions or instructions given by Ableco to Fleet under this Agreement, (ii)
actions taken by Fleet in compliance with such directions or instructions, and
(iii) transfers of funds from the Collateral Account to Ableco as provided in
this Agreement, except to the extent the claims, liabilities, or expenses are
caused by Fleet's gross negligence or willful misconduct as determined by a
final non-appealable judgment of a court of competent jurisdiction.
12. Reporting of Income. All items of income, if any, including dividends,
interest and other income, gain, expense and loss on the Collateral shall be
reported by Fleet in the name and tax identification number of the Pledgor.
13. Construction; Amendment; Conflict; Entire Agreement. If any term or
provision of this Agreement is determined to be invalid or unenforceable, the
remainder of this Agreement shall be construed in all respects as if the invalid
or unenforceable term or provision were omitted. No amendment, modification or
termination of this Agreement or waiver of any right hereunder shall be binding
on any party hereto unless it is in writing and is signed by the party to be
charged. Each of the parties hereto intends that a facsimile transmission of a
duly executed counterpart hereof shall be valid in all respects, as an original.
This Agreement may be executed in any number of counterparts all of which shall
constitute one original agreement. In the event of a conflict between this
Agreement and any other Fleet Document, as between Fleet and the Pledgor, the
terms of such other Fleet Document shall prevail; provided that if the terms of
any Fleet Document relating to the Collateral Account afford the Pledgor access
to or the right to withdraw funds from the Collateral Account, the terms of this
Agreement shall prevail. This Agreement sets forth the entire agreement of the
Pledgor, Ableco and Fleet with respect to the relative priorities of Fleet and
Ableco in the Collateral, and supersedes all prior agreements (written or oral)
and negotiations and all contemporaneous oral agreements concerning such subject
matter and negotiations.
14. Representations and Warranties; Ableco/Fleet Covenant. Each of the parties
represents and warrants that (i) it is duly incorporated or organized and is
validly existing in good standing in its jurisdiction of incorporation or
organization, (ii) the execution, delivery and performance of this Agreement and
all documents and instruments to be delivered hereunder or thereunder have been
duly authorized, (iii) the person executing this Agreement on its behalf has
been duly authorized to act on its behalf, (iv) this Agreement constitutes a
legal, valid, binding and enforceable agreement, and (v) entering into this
Agreement will not violate any agreement, law, rule or regulation by which it is
bound or by which any of its assets are affected. Ableco covenants that it shall
deliver to Fleet prompt written notice of the occurrence of any Event of Default
under the Ableco Financing Agreement, and Fleet covenants that it shall deliver
to Ableco prompt written notice of the occurrence of any Event of Default under
the Fleet Facility Agreement; provided that the failure of any party to give
notice as required hereby shall not affect the relative priorities of the
respective security interests of Fleet and Ableco as provided herein or the
validity or effectiveness of any such notice as against the Pledgor, and
provided further that neither Fleet nor Ableco shall incur any liability to any
other party hereto as a result of its failure to give notice as required hereby.
15. Termination. This Agreement may be terminated by Fleet upon thirty (30)
days written notice to the Pledgor and Ableco. Upon written notice from Ableco
to Fleet of the repayment of the Ableco Obligations and the termination of the
Ableco Financing Agreement, Ableco's security interest and lien in the
Collateral shall terminate, Ableco shall have no obligation to Fleet hereunder
(other than Ableco's indemnification obligations under Section 11) and Fleet
shall have no further obligation to Ableco.
16. Successors and Assigns; Governing Law. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns (including, without
limitation, any person or entity that succeeds to acquires any interest in any
of the Ableco Obligations), representatives and heirs, of the respective parties
hereto and shall be construed in accordance with the laws of The Commonwealth of
Massachusetts (the "Governing Law State") without regard to its conflict of law
principles and the rights and remedies of the parties shall be determined in
accordance with such laws. Notwithstanding any other agreement to the contrary,
with respect to the Collateral, Massachusetts is Fleet's jurisdiction for
purposes of the Uniform Commercial Code.
6
17. Notices. Any notice, request or other communication required or permitted
to be given under this Agreement shall be in writing and deemed to have been
properly given when delivered in person, or when sent by telecopy or other
electronic means (acceptable to Fleet) and electronic confirmation of error-free
receipt is received, or after being sent by certified or registered United
States mail, return receipt requested, postage prepaid:
If to Fleet:
Fleet National Bank
c/o Fleet Capital Corporation
One Federal Street
Mail Stop: MA DE 10307X
Boston, MA 02110
Attention: Mark B. Schafer
Telephone: 617-654-1187
Telecopy: 617-654-1167
If to the Pledgor:
Clean Harbors, Inc.
1501 Washington Street
Braintree, MA 02185-9048
Attention: Stephen Moynihan
Telephone: 781-849-4339
Telecopy: 781-849-4472
If to Ableco:
Ableco Finance LLC
450 Park Avenue
28/th/ Floor
New York, NY 10022
Attention: Daniel Wolf
Telephone: 212-891-2121
Telecopy: 212-891-1541
Fleet shall not be deemed to have or be charged with notice or knowledge of any
fact or matter unless a written notice thereof has been received by Fleet at the
address and to the person designated in (or subsequently designated in
accordance with) this Agreement.
18. JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF, OR IN ANY
WAY RELATED TO, THIS AGREEMENT AND/OR THE COLLATERAL. EACH PARTY ACKNOWLEDGES
THAT THE FOREGOING WAIVER IS A MATERIAL INDUCEMENT TO EACH PARTY TO ENTER THIS
AGREEMENT, AND THAT EACH PARTY IS RELYING UPON THE FOREGOING WAIVER IN ITS
FUTURE DEALINGS WITH EACH OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER HEREOF.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED WITHOUT AUTHENTICATION
AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
[Signature page follows.]
7
IN WITNESS WHEREOF, the Pledgor, Fleet and Ableco have caused this Deposit
Account Control and Intercreditor Agreement to be duly executed as of the day
first above written.
PLEDGOR:
CLEAN HARBORS, INC.
By: /s/ Stephen Moynihan
----------------------------------
Name: Stephen Moynihan
Title: Senior Vice President
FLEET:
FLEET NATIONAL BANK
By: /s/ Mark B. Schafer
----------------------------------
Name: Mark B. Schafer
Title: Vice President
ABLECO:
ABLECO FINANCE LLC, AS AGENT
By: /s/ Kevin P. Genda
----------------------------------
Name: Kevin P Genda
Title: SVP
8