AMENDED AND RESTATED
TERM PROMISSORY NOTE
--------------------
$15,000,000.00 Boston, Massachusetts
March 20, 1996
FOR VALUE RECEIVED, 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 "Debtor" and, collectively the "Debtors"), jointly
and severally, hereby unconditionally promise to pay to the order of CONGRESS
FINANCIAL CORPORATION (NEW ENGLAND), a Massachusetts corporation (the "Payee"),
at the offices of Payee at One Post Office Square, Boston, MA 02109, or at such
other place as the Payee or any holder hereof may from time to time designate,
the principal sum of FIFTEEN MILLION DOLLARS ($15,000,000) in lawful money of
the United States of America and in immediately available funds, in sixty (60)
consecutive monthly installments (or earlier as hereinafter provided) on the
first day of each month commencing April 1, 1996 of which the first fifty-nine
(59) installments shall each be in the amount of TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000), and the last installment shall be in the amount of the
entire unpaid balance of this Note.
Debtors, jointly and severally, hereby further promise to pay interest to
the order of Payee on the unpaid principal balance hereof at the Interest Rate.
Such interest shall be paid in like money at said office or place from the date
hereof, commencing April 1, 1996 and on the first day of each month thereafter
until the indebtedness evidenced by this Note is paid in full. Interest payable
upon and after an Event of Default or termination or non-renewal of the Loan
Agreement shall be payable upon demand.
For purposes hereof, (a) the term "Interest Rate" shall mean, as to Prime
Rate Loans, a rate of one and one-half (1.5%) percent per annum in excess of the
Prime Rate, and as to Eurodollar Rate Loans, a rate of three (3.0%) percent per
annum in excess of the Adjusted Eurodollar Rate; provided, that, at Payee's
option, the Interest Rate shall mean a rate of four (4.0%) percent per annum in
excess of the Prime Rate as to Prime Rate Loans and a rate of five and one-half
(5.5%) percent per annum in excess of the Adjusted Eurodollar Rate as to
Eurodollar Rate Loans upon and after an Event of Default or termination or non-
renewal of the Loan Agreement, (b) the term "Prime Rate" shall mean the rate
from time to time publicly announced by CoreStates Bank, N.A., or its
successors, at its office in Philadelphia, Pennsylvania, as its prime rate,
whether or not such announced rate is the best rate available at such bank, (c)
the term "Event of Default" shall mean an Event of Default as such term is
defined in the Loan Agreement, and (d) the term "Loan Agreement" shall mean the
Loan and Security Agreement, dated May 8, 1996, as amended, between Debtors and
Payee, as the same now exists or may hereafter be amended,
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modified, supplemented, extended, renewed, restated or replaced. Unless
otherwise defined herein, all capitalized terms used herein shall have the
meaning assigned thereto in the Loan Agreement.
The Interest Rate applicable to Prime Rate Loans payable hereunder shall
increase or decrease by an amount equal to each increase or decrease,
respectively, in the Prime Rate, effective on the first day of the month after
any change in the Prime Rate, based on the Prime Rate in effect on the last day
of the month in which any such change occurs. Interest shall be calculated on
the basis of a three hundred sixty (360) day year and actual days elapsed. In
no event shall the interest charged hereunder exceed the maximum permitted under
the laws of the Commonwealth of Massachusetts or other applicable law.
This Note is issued pursuant to the terms and provisions of the Loan
Agreement to evidence the Term Loan by Payee to Debtors. This Note is secured
by the Collateral described in the Loan Agreement and all notes, guarantees,
security agreements and other agreements, documents and instrument now or at any
time hereafter executed and/or delivered by any Debtor or any other party in
connection therewith (all of the foregoing, together with the Loan Agreement, as
the same now exist or may hereafter be amended, modified, supplemented, renewed,
extended, restated or replaced, being collectively referred to herein as the
"Financing Agreements"), and is entitled to all of the benefits and rights
thereof and of the other Financing Agreements. At the time any payment is due
hereunder, at its option, Payee may charge the amount thereof to any account of
any Debtor maintained by Payee.
If any payment of principal or interest is not made when due hereunder, or
if any other Event of Default shall occur for any reason, or if the Loan
Agreement shall be terminated or not renewed for any reason whatsoever, then and
in any such event, in addition to all rights and remedies of Payee under the
Financing Agreements, applicable law or otherwise, all such rights and remedies
being cumulative, not exclusive and enforceable alternatively, successively and
concurrently, Payee may, at its option, declare any or all of Debtor's
obligations, liabilities and indebtedness owing to Payee under the Loan
Agreement and the other Financing Agreements (the "Obligations"), including,
without limitation, all amounts owing under this Note, to be due and payable,
whereupon the then unpaid balance hereof, together with all interest accrued
thereon, shall forthwith become due and payable, together with interest accruing
thereafter at the then applicable Interest Rate stated above until the
indebtedness evidenced by this Note is paid in full, plus the costs and expenses
of collection hereof, including, but not limited to, attorneys' fees and legal
expenses.
Each Debtor (i) waives diligence, demand, presentment, protest and notice of
any kind, (ii) agrees that it will not be necessary for Payee to first institute
suit in order to enforce payment of this Note and (iii) consents to any one or
more extensions or postponements of time of payment, release, surrender or
substitution of collateral security, or forbearance or other indulgence, without
notice or consent. The pleading of any statute of limitations as a defense to
any demand against any Debtor is expressly hereby waived by each Debtor. Upon
any Event of Default or termination or non-renewal of the Loan Agreement, Payee
shall have the right, but not the obligation to setoff against this Note all
money owed by Payee to any Debtor.
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Payee shall not be required to resort to any Collateral for payment, but may
proceed against any Debtor and any guarantors or endorsers hereof in such order
and manner as Payee may choose. None of the rights of Payee shall be waived or
diminished by any failure or delay in the exercise thereof.
The validity, interpretation and enforcement of this Note and the other
Financing Agreements and any dispute arising in connection herewith or therewith
shall be governed by the internal laws of the Commonwealth of Massachusetts
(without giving effect to principles of conflicts of law).
Each Debtor 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 Note or any of the other Financing
Agreements or in any way connection with or related or incidental to the
dealings of any Debtor and Payee in respect of this Note 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, and agrees that any dispute arising out of the relationship
between any Debtor and Payee or the conduct of such persons in connection with
this Note or otherwise shall be heard only in the courts described above (except
that Payee shall have the right to bring any action or proceeding against such
Debtor or its property in the courts of any other jurisdiction which Payee deems
necessary or appropriate in order to realize on the Collateral or to otherwise
enforce its rights against such Debtor or its property).
Each Debtor 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 as specified in the Loan Agreement 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 Payee's option, by
service upon Debtors in any other manner provided under the rules of any such
courts. Within thirty (30) days after such service, Debtors shall appear in
answer to such process, failing which Debtors shall be deemed in default and
judgment may be entered by Payee against Debtors for the amount of the claim and
other relief requested.
EACH DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS NOTE OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS BETWEEN DEBTOR AND PAYEE
IN RESPECT OF THIS NOTE 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. DEBTOR
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY.
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The execution and delivery of this Note has been authorized by the Board of
Directors and by any necessary vote or consent of the stockholders of each
Debtor. Each Debtor hereby authorizes Payee to complete this Note in any
particulars according to the terms of the loan evidenced hereby.
This Note shall be binding upon the successors and assigns of each Debtor
and inure to the benefit of Payee and its successors, endorsees and assigns.
Whenever used herein, the term "Debtor" shall be deemed to include its
successors and assigns and the term "Payee" shall be deemed to include its
successors, endorsees and assigns. If any term or provision of this Note shall
be held invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
This Note amends and restates that certain Term Promissory Note, dated May
8, 1995 of the Debtors in the original principal amount of $10,000,000.00.
ATTEST: BORROWERS:
CLEAN HARBORS TECHNOLOGY
CORPORATION
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
CLEAN HARBORS KINGSTON
FACILITY CORPORATION
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
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CLEAN HARBORS OF BRAINTREE, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
CLEAN HARBORS OF CHICAGO, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
CLEAN HARBORS OF NATICK, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
CLEAN HARBORS OF CONNECTICUT, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Secretary Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
MURPHY'S WASTE OIL SERVICE, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
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CLEAN HARBORS OF CLEVELAND, INC.
/s/ J.T. Black By: /s/ Stephen Moynigan
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Assistant Clerk Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
MR. FRANK, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Secretary Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
SPRING GROVE RESOURCE RECOVERY, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Secretary Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
/s/ J.T. Black By: /s/ Stephen Moynihan
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Assistant Secretary Name: Stephen Moynihan
[Corporate Seal] Title: Vice President
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