Exhibit 4.33B
EXECUTION COPY
AMENDMENT NO. 1 TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDMENT TO SECURITY
AGREEMENT
This AMENDMENT NO. 1 TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDMENT TO SECURITY
AGREEMENT dated as of August 14, 2009 (this “
Amendment ”), by and among (i) with respect to
amendments to the Credit Agreement, CLEAN HARBORS, INC. , a
Massachusetts corporation (the “ Borrower ”),
BANK OF AMERICA, N.A. (“ Bank of America
”), the other lending institutions from time to time party to
the Credit Agreement (as defined below) (together with Bank of
America, the “ Lenders ”) and Bank of America,
as Administrative Agent for the Lenders (hereinafter, in such
capacity, the “ Administrative Agent ”), Swing
Line Lender, and L/C Issuer and (ii) with respect to
amendments to the Security Agreement, the Borrower, the other
Grantors (as defined below) and the Administrative Agent.
Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Credit Agreement.
WHEREAS , the Borrower, the Lenders, and Bank of
America, as Administrative Agent, Swing Line Lender, and L/C Issuer
are parties to a Second Amended and Restated Credit Agreement,
dated as of July 31, 2009 (as amended, restated, amended and
restated, supplemented, modified or otherwise in effect from time
to time, the “ Credit Agreement ”), pursuant to
which the Lenders have agreed to make Loans to the Borrower and the
L/C issuer has agreed to issue or extend Letters of Credit to the
Grantors on the terms set forth therein;
WHEREAS , the Obligations under the Credit Agreement are
secured, inter alia, by that certain Security Agreement, dated as
of July 31, 2009 (as amended, restated, amended and restated,
supplemented, modified or otherwise in effect from time to time,
the “ Security Agreement ’) by and among the
Borrower, the other Loan Parties signatory thereto (together with
the Borrower, the “ Grantors ”), and the
Administrative Agent;
WHEREAS , each of the undersigned guarantors (each, a
“ Guarantor ”) have guaranteed the
Borrower’s obligations to the Secured Parties and the
Administrative Agent under or in respect of the Credit Agreement,
pursuant to the terms of that certain Guaranty, dated as of
July 31, 2009 (as amended, restated, amended and restated,
supplemented, modified or otherwise in effect from time to time,
the “ Guaranty ”);
WHEREAS , it is a condition precedent to the Lenders and
Administrative Agent entering into this Amendment that each of the
Guarantors ratifies its obligations under the Guaranty;
WHEREAS , in respect of the Security Agreement, the
undersigned Lenders hereby ratify the Administrative Agent’s
entering into the amendments to the Security Agreement on behalf of
such Lenders and do not sign this Amendment as parties to such
Security Agreement;
WHEREAS , the Borrower requests that the Lenders and
Administrative Agent amend certain of the terms and provisions of
the Credit Agreement as set forth herein subject to the conditions
set forth below; and
NOW THEREFORE
, in consideration of the mutual
agreements contained in the Credit Agreement and herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
§1.
Ratification of Guaranty . Each of the Guarantors hereby
acknowledges and consents to this Amendment and agrees that the
Guaranty and all other Loan Documents to which each of
the
Guarantors is a party remain in full force and
effect and apply to all Obligations, and each of the Guarantors
confirms and ratifies all of its Obligations thereunder.
§2.
Amendments to the Credit Agreement . Subject to the satisfaction of the
conditions set forth in Section 6 of this Amendment,
the Credit Agreement is hereby amended as follows:
§2.1.
Section 1.01 of the Credit Agreement is hereby amended by
inserting the following new definition in the correct alphabetical
order:
“ First Amendment Effective
Date ” means August 14, 2009.
§2.2.
Section 7.02(b) of the Credit Agreement is hereby amended
by deleting Section 7.02(b) in its entirety and
substituting the following in lieu thereof:
“(b)
Indebtedness owed by a Loan Party or a Subsidiary of a Loan Party
to any other Loan Party which Indebtedness (x) is permitted as
an Investment under the provisions of Section 7.03 ;
and (y) shall not be evidenced by a note or securities;
provided , however , to the extent such Indebtedness
exists as of the First Amendment Effective Date and is evidenced by
a note or securities, such note or securities shall be permitted
hereunder, and to the extent such Indebtedness exists as of the
First Amendment Effective Date and is not evidenced by a note or
securities, such Indebtedness shall not be evidenced by a note or
securities thereafter;”
§3.
Amendments to the Security Agreement . Subject
to the satisfaction of the conditions set forth in
Section 6 of this Amendment, the Security Agreement is
hereby amended as follows:
§3.1.
The introductory paragraph of the Security Agreement is hereby
amended by deleting “Section 9.13” and
substituting “Section 8.13” in lieu
thereof.
§3.2.
Section 1 of the Security Agreement is hereby amended by
deleting clause (a) of the definition of “Excluded
Accounts” in its entirety and substituting the following in
lieu thereof:
“(a) prior to the
Discharge of Senior Secured Notes Obligations (as defined in the
Intercreditor Agreement), any Deposit Account or Securities Account
established solely to hold the identifiable proceeds of any sale of
Non-Accounts Collateral after an Event of Default (as defined in
the Senior High Yield Indenture),”
§3.3.
Section 1 of the Security Agreement is hereby amended by
deleting the final two clauses and proviso of the definition of
“Excluded Property” in their entirety and substituting
the following in lieu thereof:
“(g)
any capital stock, notes, instruments, other equity interests and
other securities of any Subsidiary or Affiliate of the Company
(other than any Securities Account); provided that
(x) notwithstanding the foregoing, intercompany Indebtedness
held by any Grantor shall be deemed Collateral, but no notes or
securities evidencing the same shall be required to be delivered to
the Administrative Agent hereunder and such notes or securities
(but not the Indebtedness underlying such notes and securities)
shall not be Collateral, (y) no Grantor or any of its
Subsidiaries shall pledge or grant any security interest in any
such note or security to any Person without the consent of the
Administrative Agent and (z) the intercompany loans (or any
whole or partial replacements or refinancings thereof) being made
on or about the date hereof to one or more Canadian Subsidiaries of
the Borrower shall not be evidenced by a note or a security;
and
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(h)
any property or asset only to the extent and for so long as the
grant of a security interest in such property or asset is
prohibited by any applicable law or requires a consent not obtained
of any governmental authority pursuant to applicable law, statute
or regulation;
provided , however , that (A) Excluded
Property shall not include any Proceeds, substitutions or
replacements of any Excluded Property referred to in clause (a),
(b), (c), (d), (e), (f), (g) or (h) (unless such
Proceeds, substitutions or replacements would constitute Excluded
Property referred to in clause (a), (b), (c), (d), (e), (f),
(g) or (h)) and (B) any property or asset that
constitutes Excluded Property by reason of any violation or
restriction shall cease to be Excluded Property upon the
ineffectiveness, lapse or termination of such prohibition or
restriction.”
§3.4.
Section 2(a) of the Security Agreement is hereby amended
by deleting clause (ix) in its entirety and substituting the
following in lieu thereof:
“(ix)
all Goods, including Equipment, Inventory and Rolling
Stock;”.
§3.5.
Section 3.6 of the Security Agreement is hereby amended by
inserting the phrase “and the Mortgage Property”
immediately after the word “Collateral” in the second
line of such section.
§3.6.
Section 4.8 of the Security Agreement is here by amended
by:
(a)
Deleting the reference to “$10,000” contained therein
and substituting “$50,000, the applicable Grantor shall
notify the Administrative Agent of any such Rolling Stock acquired
after the date hereof and” in lieu thereof; and
(b)
Inserting the following sentence immediately after the final
sentence of Section 4.8:
“No Grantor shall request any
Rolling Stock be released from the Lien created by the Collateral
Documents unless such a release is permitted by the Loan Documents
and no such release shall be requested at any time after the
occurrence and during the continuation of an Event of
Default.”
§3.7.
Section 4.11 of the Security Agreement is hereby amended by
deleting the existing Section in its entirety and substituting
the following in lieu thereof:
“4.11.
Deposit Accounts and Securities Accounts Subject to the
Intercreditor Agreement, for each Deposit Account and Securities
Account (including, without limitation, those listed on Schedule 8)
that any Grantor, now or at any time hereafter, opens or maintains,
such Grantor shall, at the Administrative Agent’s request and
option, pursuant to a Control Agreement in form and substance
satisfactory to the Administrative Agent, either (a) cause the
depositary bank or securities intermediary, as applicable, to agree
to comply without further consent of such Grantor, at any time with
instructions from the Administrative Agent to such depositary bank
or securities intermediary directing the disposition of funds or
financial assets from time to time credited to such deposit account
or securities account, or (b) arrange for the Administrative
Agent to become the customer of the depositary bank with respect to
the Deposit Account, with such Grantor being permitted, only with
the consent of the Administrative Agent, to exercise rights to
withdraw funds from such deposit account. The Administrative
Agent agrees with each Grantor that the Administrative Agent shall
not give any such instructions or withhold any withdrawal rights
from such Grantor, unless an Event of Default has occurred and is
continuing, unless cash on hand falls below $50,000,000, or if
effect were given to any withdrawal not otherwise permitted by the
Loan Documents, would occur. The provisions of this paragraph
shall not apply to any Excluded Accounts.”
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§3.8.
Section 4.13 of the Security Agreement is hereby amended by
deleting the section reference “4.13” and incorporating
the text previously included in that section into Section 4.12
of the Security Agreement as the final paragraph
thereof.
§3.9.
Section 4.14 of the Security Agreement is hereby amended
by:
(a)
Changing the section reference from “4.14” to
“4.13”; and
(b)
Inserting the phrase “, including, without limitation, the
Mortgage Property,” immediately after the word
“properties” in the second line of such
section.
§3.10.
Section 5.6 of the Security Agreement is hereby amended by
inserting the phrase “or Mortgage Property” immediately
after the word “Collateral” in the second line of such
section.
§3.11.
Section 6.1(a)(v) of the Security Agreement is hereby
amended by deleting the reference to “4.14” and
substituting “4.13” in lieu thereof.
§3.12.
Section 6.2 of the Security Agreement is hereby amended
by:
(a)
In the second paragraph of Section 6.2, inserting the phrase
“or Mortgage Property” after each instance of the word
“Collateral” in such paragraph.
(b)
Inserting the following paragraph between the second and third
paragraphs of Section 6.2:
“The Administrative Agent is
hereby authorized to enter into a Collateral Agency Agreement with
Corporation Service Company, US Bank National Association, as
Senior Secured Notes Trustee (as defined in the Intercreditor
Agreement) and Clean Harbors Environmental Services, Inc. (as
amended, restated, supplemented or modified from time to time, the
“ Collateral Agency Agreement ”) for the purpose
of engaging Corporation Service Company to act as collateral agent
with respect to Rolling Stock for the benefit of the Administrative
Agent.”
(c)
Replacing the third paragraph of Section 6.2 with the
following:
“The Administrative Agent
shall not be responsible for the existence, genuineness or value of
any of the Collateral or Mortgage Property or for the validity,
perfection, priority or enforceability of the Liens in any of the
Collateral or Mortgage Property, whether impaired by operation of
law or by reason of any of any action or omission to act on its
part hereunder, except to the extent such action or omission
constitutes gross negligence, bad faith or willful misconduct on
the part of the Administrative Agent, for the validity or
sufficiency of the Collateral or Mortgage Property or any agreement
or assignment contained therein, for the va
