Exhibit 4.10
June 20, 1997
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
CLEAN HARBORS TECHNOLOGY
CORPORATION
CLEAN HARBORS KINGSTON FACILITY
CORPORATION
CLEAN HARBORS OF BRAINTREE, INC.
CLEAN HARBORS SERVICES, INC.
CLEAN HARBORS OF NATICK, INC.
CLEAN HARBORS OF CONNECTICUT, INC.
MURPHY'S WASTE OIL SERVICE, INC.
CLEAN HARBORS OF CLEVELAND, INC.
MR. FRANK, INC.
SPRING GROVE RESOURCE RECOVERY, INC.
Re: Fourth Amendment to Financing Agreements ("Fourth Amendment")
Gentlemen:
Reference is made to the Loan and Security Agreement dated May 8, 1995,
as amended, between you and the undersigned (the "Loan Agreement"). All
capitalized terms not otherwise defined herein shall have the meanings given
such terms in the Loan Agreement.
Borrowers have requested an extension of the term of the Financing
Agreements to May 8, 1999 and amendments to certain of the covenants therein.
Subject to the terms and conditions hereof, the Lender agrees with the
Borrowers as follows:
(1) The first sentence of Section 12.1(a) of the Loan Agreement is
deleted and replaced with the following sentence:
"This Agreement and the other Financing Agreements shall
become effective as of the date set forth on the first page
hereof and shall continue in full force and effect for a term
ending on the date four (4) years from the date hereof (the
"Renewal Date"), and from year to year thereafter, unless
sooner terminated pursuant to the terms hereof; provided,
that, Lender may, at its option, extend the Renewal Date to
the date five (5) years from the date hereof by giving
Borrower notice at least one hundred twenty (120) days prior
to the fourth anniversary of this Agreement."
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(2) Section 12.1(c) of the Loan Agreement is deleted in its entirety and
replaced with the following:
"If for any reason this Agreement is terminated prior to the
end of the then current term or renewal term of this
Agreement, in view of the impracticality and extreme
difficulty of ascertaining actual damages and by mutual
agreement of the parties as to a reasonable calculation of
Lender's lost profits as a result thereof, Borrower agrees to
pay to Lender, upon the effective date of such termination, an
early termination fee in the amount of (i) 1% of the Revolving
Credit Limit if such termination is effective in the period
May 9, 1997 to and including May 8, 1998, and (ii) .5% of the
Revolving Credit Limit if such termination is effective in the
period May 9, 1998 to and including May 8, 1999. Such early
termination fee shall be presumed to be the amount of damages
sustained by Lender as a result of such early termination and
Borrower agrees that it is reasonable under the circumstances
currently existing. The refinancing and repayment of the Term
Loan through the issuance of pollution control authority
industrial revenue bonds shall not trigger the payment of the
early termination fee. The early termination fee provided for
in this Section 12.1 shall be deemed included in the
Obligations."
(3) Section 9.13 of the Loan Agreement is deleted in its entirety and
replaced with the following:
"Parent shall, at all times, maintain Working Capital of not less
than $10,000,000.00."
(4) Section 9.14 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"Parent shall, at all times, maintain Adjusted Net Worth of not less
than $40,000,000.00."
(5) This Fourth Amendment and the Lender's obligations hereunder shall
not be effective until each of the following conditions are satisfied:
(a) all requisite corporate action and proceedings of the Borrowers
in connection with this Fourth Amendment shall be satisfactory in form and
substance to Lender and Lender shall receive certified copies of such
corporate action and proceedings as Lender may request;
(b) no material adverse change shall have occurred in the assets,
business or prospects of any Borrower since the date of the most recent
financial statements furnished to Lender pursuant to the Loan Agreement and
no change or event shall have occurred which would impair the ability of any
Borrower or any Obligor to
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perform its obligations under the Loan Agreement or any of the other Financing
Agreements or of Lender to enforce the Obligations or to realize upon the
Collateral; and
(c) Borrowers shall pay to Lender, and directs Lender to debit its
loan account for, an additional facility fee equal to $50,000.00, which fee
shall be fully earned and non-refundable on the date hereof.
(6) Each Borrower confirms and agrees that (a) all representations and
warranties contained in the Loan Agreement and in the other Financing
Agreements are on the date hereof true and correct in all material respects
(except for changes that have occurred as permitted by the covenants in
Section 9 of the Loan Agreement), and (b) it is unconditionally and jointly
and severally liable for the punctual and full payment of all Obligations,
including, without limitation, all charges, fees, expenses and costs
(including attorneys' fees and expenses) under the Financing Agreements, and
that no Borrower has any defenses, counterclaims or setoffs with respect to
full, complete and timely payment of all Obligations.
(7) Each Guarantor, for value received, hereby assents to the Borrowers'
execution and delivery of this Amendment, and to the performance by the
Borrowers of their respective agreements and obligations hereunder. This
Amendment and the performance or consummation of any transaction or matter
contemplated under this Amendment, shall not limit, restrict, extinguish or
otherwise impair any of the Guarantor's liability to Lender with respect to
the payment and other performance obligations of the Guarantors pursuant to
the Guarantees, dated May 8, 1995 executed for the benefit of Lender. Each
Guarantor acknowledges that it is unconditionally liable to Lender for the
full and complete payment of all Obligations including, without limitation,
all charges, fees, expenses and costs (including attorney's fees and
expenses) under the Financing Agreements and that such Guarantor has no
defenses, counterclaims or setoffs with respect to full, complete and timely
payment of any and all Obligations.
(8) Borrowers hereby agree to pay to Lender all reasonable attorney's
fees and costs which have been incurred or may in the future be incurred by
Lender in connection with the negotiation and preparation of this Amendment
and any other documents and agreements prepared in connection with this
Amendment. The undersigned confirm that the Financing Agreements remain in
full force and effect without amendment or modification of any kind, except
for the amendments explicitly set forth herein. The undersigned further
confirm that no Event of Default or events which with notice or the passage
of time or both would constitute an Event of Default have occurred and are
continuing. The execution and delivery of this Amendment by Lender shall not
be construed as a waiver by Lender of any Event of Default under the
Financing Agreements. This Amendment shall be deemed to be a Financing
Agreement and, together with the other Financing Agreements, constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior dealings, correspondence, conversations or
communications between the parties with respect to the subject matter hereof.
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If you accept and agree to the foregoing please sign and return the
enclosed copy of this letter. Thank you.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(NEW ENGLAND)
By: /s/ KATHLEEN J. MERRITT
--------------------------------------
Name: Kathleen J. Merritt
---------------------------------
Title: Assistant Vice President
--------------------------------
AGREED:
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
CLEAN HARBORS TECHNOLOGY
CORPORATION
CLEAN HARBORS KINGSTON FACILITY
CORPORATION
CLEAN HARBORS OF BRAINTREE, INC.
CLEAN HARBORS SERVICES, INC.
CLEAN HARBORS OF NATICK, INC.
CLEAN HARBORS OF CONNECTICUT, INC.
MURPHY'S WASTE OIL SERVICE, INC.
CLEAN HARBORS OF CLEVELAND, INC.
MR. FRANK, INC.
SPRING GROVE RESOURCE RECOVERY, INC.
By: /s/ STEVEN MOYNIHAN
----------------------------------------
Name: Steven Moynihan
Title: Senior Vice President
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GUARANTORS:
CLEAN HARBORS, INC.
By: /s/ STEVEN MOYNIHAN
----------------------------------------
Name: Steven Moynihan
Title: Senior Vice President
CLEAN HARBORS OF BALTIMORE, INC.
By: /s/ STEVEN MOYNIHAN
----------------------------------------
Name: Steven Moynihan
Title: Senior Vice President
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