EXHIBIT 4.4
GUARANTEE
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May 8, 1995
Congress Financial Corporation (New England)
One Post Office Square
Boston, MA 02109
Re: Clean Harbors Environmental Services, Inc., a Massachusetts
corporation, Clean Harbors Technology Corporation, a
Massachusetts corporation, Clean Harbors Kingston Facility
Corporation, a Massachusetts corporation, Clean Harbors of
Braintree, Inc., a Massachusetts corporation, Clean Harbors
of Chicago, Inc., a Massachusetts corporation, Clean Harbors
of Natick, Inc., a Massachusetts corporation, Clean Harbors
of Connecticut, Inc., a Connecticut corporation, Clean
Harbors of Cleveland, Inc., a Massachusetts corporation,
Murphy's Waste Oil Service, Inc., a Massachusetts
corporation, Mr. Frank, Inc., an Illinois corporation and
Spring Grove Resource Recovery, Inc., a Delaware corporation
(each, a "Borrower" and, collectively, the "Borrowers").
Gentlemen:
Congress Financial Corporation (New England) ("Lender") and Borrowers have
entered into certain financing arrangements pursuant to which Lender may make
loans and advances and provide other financial accommodations to Borrowers as
set forth in the Loan and Security Agreement, dated May 8, 1995, among Borrowers
and Lender (as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement"),
and other agreements, documents and instruments referred to therein or at any
time executed and/or delivered in connection therewith or related thereto,
including, but not limited to, this Guarantee (all of the foregoing, together
with the Loan Agreement, as the same now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between Borrowers and
the undersigned ("Guarantor"), in consideration of the benefits which will
accrue to Guarantor and as an inducement for and in consideration of Lender
making loans and advances and providing other financial accommodations to
Borrowers pursuant to the Loan Agreement and the other Financing Agreements,
Guarantor hereby agrees in favor of Lender as follows:
1. Guarantee.
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(a) Guarantor absolutely and unconditionally guarantees and agrees to
be liable for the full and indefeasible payment and performance when due of the
following (all of
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which are collectively referred to herein as the "Guaranteed Obligations"): (i)
all obligations, liabilities and indebtedness of any kind, nature and
description of any Borrower to Lender and/or its affiliates, including
principal, interest, charges, fees, costs and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, whether arising
under the Loan Agreement, the other Financing Agreements or otherwise, whether
now existing or hereafter arising, whether arising before, during or after the
initial or any renewal term of the Loan Agreement or after the commencement of
any case with respect to any Borrower under the United States Bankruptcy Code or
any similar statute (including, without limitation, the payment of interest and
other amounts, which would accrue and become due but for the commencement of
such case and including loans, interest, fees, charges and expenses related
thereto and all other obligations of any Borrower or its successors to Lender
arising after the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by Lender
and (ii) all expenses (including, without limitation, attorneys' fees and legal
expenses) incurred by Lender in connection with the preparation, execution,
delivery, recording, administration, collection, liquidation, enforcement and
defense of any Borrower's obligations, liabilities and indebtedness as aforesaid
to Lender, the rights of Lender in any collateral or under this Guarantee and
all other Financing Agreements or in any way involving claims by or against
Lender directly or indirectly arising out of or related to the relationships
between any Borrower, Guarantor or any other Obligor (as hereinafter defined)
and Lender, whether such expenses are incurred before, during or after the
initial or any renewal term of the Loan Agreement and the other Financing
Agreements or after the commencement of any case with respect to any Borrower or
Guarantor under the United States Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of collection.
Guarantor agrees that Lender need not attempt to collect any Guaranteed
Obligations from any Borrower, Guarantor or any other Obligor or to realize upon
any collateral, but may require Guarantor to make immediate payment of all of
the Guaranteed Obligations to Lender when due, whether by maturity, acceleration
or otherwise, or at any time thereafter. Lender may apply any amounts received
in respect of the Guaranteed Obligations to any of the Guaranteed Obligations,
in whole or in part (including attorneys' fees and legal expenses incurred by
Lender with respect thereto or otherwise chargeable to any Borrower or
Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of
Lender from time to time on demand as Guaranteed Obligations become due.
Guarantor shall make all payments to Lender on the Guaranteed Obligations free
and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or
concurrent actions may be brought hereon against Guarantor either in the same
action in which any Borrower or any other Obligor is sued or in separate
actions. In the event any claim or action, or action on any judgment, based on
this Guarantee is brought against Guarantor, Guarantor agrees not to deduct,
set-off, or seek any counterclaim for or recoup any amounts which are or may be
owed by Lender to Guarantor.
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2. Waivers and Consents.
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(a) Notice of acceptance of this Guarantee, the making of loans and
advances and providing other financial accommodations to any Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which any Borrower or Guarantor is entitled are hereby
waived by Guarantor. Guarantor also waives notice of and hereby consents to, (i)
any amendment, modification, supplement, extension, renewal, or restatement of
the Loan Agreement and any of the other Financing Agreements, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Guaranteed Obligations or any collateral, and the guarantee
made herein shall apply to the Loan Agreement and the other Financing Agreements
and the Guaranteed Obligations as so amended, modified, supplemented, renewed,
restated or extended, increased or decreased, (ii) the taking, exchange,
surrender and releasing of collateral or guarantees now or at any time held by
or available to Lender for the obligations of any Borrower or any other party at
any time liable on or in respect of the Guaranteed Obligations or who is the
owner of any property which is security for the Guaranteed Obligations
(individually, an "Obligor" and collectively, the "Obligors"), (iii) the
exercise of, or refraining from the exercise of any rights against any Borrower
or any other Obligor or any collateral, (iv) the settlement, compromise or
release of, or the waiver of any default with respect to, any of the Guaranteed
Obligations and (v) any financing by Lender of any Borrower under Section 364 of
the United States Bankruptcy Code or consent to the use of cash collateral by
Lender under Section 363 of the United States Bankruptcy Code. Guarantor agrees
that the amount of the Guaranteed Obligations shall not be diminished and the
liability of Guarantor hereunder shall not be otherwise impaired or affected by
any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations shall affect, impair or be a defense to this
Guarantee, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of any Borrower in respect
of any of the Guaranteed Obligations, or Guarantor in respect of this Guarantee,
affect, impair or be a defense to this Guarantee. Without limitation of the
foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the commencement of
any case with respect to any Borrower under the United States Bankruptcy Code or
any similar statute, Guarantor shall be liable therefor, even if such Borrower's
liability for such amounts does not, or ceases to, exist by operation of law.
3. Subordination. Payment of all amounts now or hereafter owed to
Guarantor by any Borrower or any other Obligor is hereby subordinated in right
of payment to the indefeasible payment in full in cash to Lender of the
Guaranteed Obligations and all such amounts and any security and guarantees
therefor are hereby assigned to Lender as security for the Guaranteed
Obligations.
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4. Acceleration. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Financing Agreements, the
liability of Guarantor for the entire Guaranteed Obligations shall mature and
become immediately due and payable, even if the liability of any Borrower or any
other Obligor therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. Account Stated. The books and records of Lender showing the account
between Lender and Borrowers shall be admissible in evidence in any action or
proceeding against or involving Guarantor as prima facie proof of the items
therein set forth, and the monthly statements of Lender rendered to Borrowers,
to the extent to which no written objection is made within thirty (30) days from
the date of sending thereof to Borrowers, shall be deemed conclusively correct
and constitute an account stated between Lender and Borrowers and be binding on
Guarantor.
6. Termination. This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. Guarantor shall continue to be
liable hereunder until one of Lender's officers actually receives a written
termination notice from Guarantor sent to Lender at its address set forth above
by certified mail, return receipt requested and thereafter as set forth below.
Revocation or termination hereof by Guarantor shall not affect, in any manner,
the rights of Lender or any obligations or duties of Guarantor under this
Guarantee with respect to (a) Guaranteed Obligations which have been created,
contracted, assumed or incurred prior to the receipt by Lender of such written
notice of revocation or termination as provided herein, including, without
limitation, (i) all amendments, extensions, renewals and modifications of such
Guaranteed Obligations (whether or not evidenced by new or additional
agreements, documents or instruments executed on or after such notice of
revocation or termination), (ii) all interest, fees and similar charges accruing
or due on and after revocation or termination, and (iii) all attorneys' fees and
legal expenses, costs and other expenses paid or incurred on or after such
notice of revocation or termination in attempting to collect or enforce any of
the Guaranteed Obligations against any Borrower, Guarantor or any other Obligor
(whether or not suit be brought), or (b) Guaranteed Obligations which have been
created, contracted, assumed or incurred after the receipt by Lender of such
written notice of revocation or termination as provided herein pursuant to any
contract entered into by Lender prior to receipt of such notice. The sole effect
of such revocation or termination by Guarantor shall be to exclude from this
Guarantee the liability of Guarantor for those Guaranteed Obligations arising
after the date of receipt by Lender of such written notice which are unrelated
to Guaranteed Obligations arising or transactions entered into prior to such
date. Without limiting the foregoing, this Guarantee may not be terminated and
shall continue so long as the Loan Agreement shall be in effect (whether during
its original term or any renewal, substitution or extension thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Lender
is required to surrender or return such payment or proceeds to any Person for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this
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Guarantee shall continue in full force and effect as if such payment or proceeds
had not been received by Lender. Guarantor shall be liable to pay to Lender, and
does indemnify and hold Lender harmless for the amount of any payments or
proceeds surrendered or returned. This Section 7 shall remain effective
notwithstanding any contrary action which may be taken by Lender in reliance
upon such payment or proceeds. This Section 7 shall survive the termination or
revocation of this Guarantee.
8. Amendments and Waivers. Neither this Guarantee nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not, by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy which Lender would otherwise have on any future occasion, whether
similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Guarantor is a corporation
duly organized and in good standing under the laws of its state or other
jurisdiction of incorporation and is duly qualified as a foreign corporation and
in good standing in all states or other jurisdictions where the nature and
extent of the business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition,
results of operation or businesses of Guarantor or the rights of Lender
hereunder or under any of the other Financing Agreements. The execution,
delivery and performance of this Guarantee is within the corporate powers of
Guarantor, have been duly authorized and is not in contravention of law or the
terms of the certificates of incorporation, by-laws, or other organizational
documentation of Guarantor, or any indenture, agreement or undertaking to which
Guarantor is a party or by which Guarantor or its property are bound. This
Guarantee constitutes the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guarantee and
any dispute arising out of the relationship between Guarantor and Lender,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the Commonwealth of Massachusetts (without giving effect to
principles of conflicts of law).
(b) Guarantor hereby irrevocably consents and submits to the non-
exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and
the United States District Court for the District of Massachusetts and waives
any objection based on venue or forum non conveniens with respect to any action
instituted therein arising under this Guarantee or any of the other Financing
Agreements or in any way connected with or related or incidental to the dealings
of Guarantor and Lender in respect of this Guarantee or any of the other
Financing Agreements or the transactions related hereto or thereto, in each case
whether now existing or hereafter
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arising and whether in contract, tort, equity or otherwise, and agrees that any
dispute arising out of the relationship between Guarantor or any Borrower and
Lender or the conduct of any such persons in connection with this Guarantee, the
other Financing Agreements or otherwise shall be heard only in the courts
described above (except that Lender shall have the right to bring any action or
proceeding against Guarantor or its property in the courts of any other
jurisdiction which Lender deems necessary or appropriate in order to realize on
any collateral at any time granted by any Borrower or Guarantor to Lender or to
otherwise enforce its rights against Guarantor or its property).
(c) Guarantor hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by certified
mail (return receipt requested) directed to its address set forth on the
signature pages hereof and service so made shall be deemed to be completed five
(5) days after the same shall have been so deposited in the U.S. mails, or, at
Lender's option, by service upon Guarantor in any other manner provided under
the rules of any such courts. Within thirty (30) days after such service,
Guarantor shall appear in answer to such process, failing which Guarantor shall
be deemed in default and judgment may be entered by Lender against Guarantor for
the amount of the claim and other relief requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS GUARANTEE OR ANY OF THE
OTHER FINANCING AGREEMENTS OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS GUARANTEE OR ANY OF
THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY
OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR
AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to Guarantor (whether in tort,
contract, equity or otherwise) for losses suffered by Guarantor in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated by this Guarantee, or any act, omission or event occurring in
connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Lender that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct. In any
such litigation, Lender shall be entitled to the benefit of the rebuttable
presumption that it acted in good faith and with the exercise of ordinary care
in the performance by it of the terms of the Loan Agreement and the other
Financing Agreements.
11. Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth above and to Guarantor
at its chief executive office set
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forth below, or to such other address as either party may designate by written
notice to the other in accordance with this provision, and (b) deemed to have
been given or made: if delivered in person, immediately upon delivery; if by
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
12. Partial Invalidity. If any provision of this Guarantee is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guarantee represents the entire agreement and
understanding of the parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guarantee shall be binding upon
Guarantor and its successors and assigns and shall inure to the benefit of
Lender and its successors, endorsees, transferees and assigns. The liquidation,
dissolution or termination of Guarantor shall not terminate this Guarantee as to
such entity or as to Guarantor.
15. Construction. All references to the term oGuarantoro wherever used
herein shall mean Guarantor and its successors and assigns (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
assets or Guarantor in its capacity as debtor or debtor-in-possession under the
United States Bankruptcy Code). All references to the term "Lender" wherever
used herein shall mean Lender and its successors and assigns and all references
to the term "Borrower" wherever used herein shall mean each Borrower and its
successors and assigns (including, without limitation, any receiver, trustee or
custodian for such Borrower or any of its assets or such Borrower in its
capacity as debtor or debtor-in-possession under the United States Bankruptcy
Code). All references to the term "Person" or "person" wherever used herein
shall mean any individual, sole proprietorship, partnership, corporation
(including, without limitation, any corporation which elects subchapter S status
under the Internal Revenue Code of 1986, as amended), business trust,
unincorporated association, joint stock corporation, trust, joint venture or
other entity or any government or any agency or instrumentality or political
subdivision thereof. All references to the plural shall also mean the singular
and to the singular shall also mean the plural.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guarantee as
of the day and year first above written.
ATTEST: CLEAN HARBORS, INC.
________________________ By:_______________________________
Name: James A. Pitts
Title: Executive Vice President
[CORPORATE SEAL]
Chief Executive Office
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325 Wood Road
Braintree, MA 02184
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STATE OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On this ____ day of May, 1995, before me personally came James A. Pitts, to
me known, who stated that he is the Executive Vice President of Clean Harbors,
Inc., the corporation described in and which executed the foregoing instrument;
and that he signed his name thereto by order of the Board of Directors of said
corporation.
___________________________
Notary Public
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