AMENDMENT NO. 4
Exhibit 4.28L
AMENDMENT NO. 4
AMENDMENT NO. 4 (this Amendment), dated as of June 25, 2008, 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. 4 shall mean Amendment No. 4 to this Agreement, dated as of June 25, 2008.
Amendment No. 4 Effective Date shall mean the first Business Day on which all conditions precedent set forth in Section 2 of Amendment No. 4 are satisfied.
(b) Section 9.20 of the Loan Agreement is hereby amended by deleting Section 9.20 in its entirety and replacing it with the following:
9.20 Limitation on Capital Expenditures. Credit Parties shall not permit the aggregate amount of Capital Expenditures made in each of fiscal years 2008, 2009 and 2010 of Parent to exceed $60.0 million in any such fiscal year; provided, however, that (x) if the aggregate amount of Capital Expenditures made in fiscal years 2008, 2009 or 2010 shall be less than the maximum amount of Capital Expenditures permitted under this Section 9.20 for such fiscal year (before giving effect to any carryover), then an amount of such shortfall not exceeding 50% of such maximum amount (without giving effect to clause (y) below) may be added to the amount of Capital Expenditures permitted under this Section 9.20 for the imme-diately succeeding (but not any other) fiscal year, and (y) in determining whether any amount is available for carryover, the amount expended in any fiscal year shall first be deemed to be from the amount allocated to such fiscal year (before giving effect to any carryover).
Section 2. Conditions to Effectiveness. This Amendment shall become effective as of the date (the Amendment No. 4 Effective Date) when, and only when (x) the Administrative Agents shall have received counterparts of this Amendment executed by each Credit Party, the Administrative Agents, a number of Lenders sufficient to constitute the Majority LC Facility Lenders and each Revolving Lender and (y) Borrowers shall pay on the Amendment No. 4 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. 4 Effective Date, 0.25% of the aggregate amount of the Credit-Linked Deposits held by such LC Facility Lender immediately prior to the Amendment No. 4 Effective Date and (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. 4 Effective Date, 0.25% of the aggregate of the Term Loans held by such Term Loan Lender immediately prior to the Amendment No. 4 Effective Date. The effectiveness of this Amendment (other than Sections Five, Six and Seven 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 before and after giving effect to this Amendment, (a) no Default or Event of Default exists, has occurred and is continuing or will have occurred and be continuing and (b) 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. Reference to and Effect on the Loan Agreement. On and after the Amendment No. 4 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 5. 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 6. 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 7. 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]
| CREDIT PARTIES |
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| 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 DEVELOPMENT, 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/ James M. Rutledge | |
| Title: | Executive Vice President and | |
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| Chief Financial Officer | |
| 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 RECYCLING SERVICES OF CHICAGO, LLC |
| CLEAN HARBORS RECYCLING SERVICES OF OHIO, 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/ James M. Rutledge | |
| Title: | Executive Vice President and | |
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| Chief Financial Officer | |
| CLEAN HARBORS ENVIRONMENTAL SERVICES, INC |
| CLEAN HARBORS OF BRAINTREE, INC. |
| CLEAN HARBORS OF NATICK, INC. |
| CLEAN HARBORS SERVICES, INC. |
| MURPHYS WASTE OIL SERVICE, INC. |
| CLEAN HARBORS KINGSTON FACILITY CORPORATION |
| CLEAN HARBORS OF CONNECTICUT, INC. |
| SPRING GROVE RESOURCE RECOVERY, INC. |
| CH CANADA HOLDINGS CORP. |
| CH CANADA GP, INC. |
| CLEAN HARBORS CANADA LP |
| CLEAN HARBORS CANADA, INC. |
| CLEAN HARBORS QUEBEC, INC. |
| CLEAN HARBORS MERCIER, INC. |
| 510127 N.B. INC. |
| By: | /s/ James M. Rutledge | |
| Title: | Executive Vice President and | |
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| Chief Financial Officer | |
REVOLVING ADMINISTRATIVE AGENT,
ACCOUNTS COLLATERAL AGENT AND
US REVOLVING LENDER
BANK OF AMERICA, N.A.,
Individually and as Agent
By: | /s/ Christopher M. OHalloran |
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Title: | Vice President |
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CANADIAN COLLATERAL AGENT
AND CANADIAN LENDER
BANK OF AMERICA, N.A., CANADA BRANCH
Individually and as Agent
By: | /s/ Medina Sales de Andrade |
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Title: | Vice President |
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LC FACILITY ADMINISTRATIVE AGENT
AND LC FACILITY COLLATERAL AGENT
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By: | /s/ Doreen Barr |
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Title: | Vice President |
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By: | /s/ Morenikeji Ajayi |
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Title: | Associate |
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