Exhibit 4.12
June 23, 1998
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: Sixth Amendment to Financing Agreements ("Sixth 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, 2000. 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
June 24, 1998
Page 2
date five (5) 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 six (6) years from the date hereof by giving Borrower
notice at least one hundred twenty (120) days prior to the fifth
anniversary of this Agreement."
(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 1/2% of the Revolving Credit Limit if
such termination is effective in the period May 9, 1998 to and including
May 8, 2000. 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) This Sixth 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 Sixth 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 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.
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July 24, 1998
Page 3
(4) 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.
(5) 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.
(6) 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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June 24, 1998
Page 4
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: Vice President
AGREED:
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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/ STEPHEN MOYNIHAN
----------------------------
Name: Stephen Moynihan
Title: Senior Vice President
GUARANTORS:
CLEAN HARBORS, INC.
By: /s/ STEPHEN MOYNIHAN
----------------------------
Name: Stephen Moynihan
Title: Senior Vice President
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June 24, 1998
Page 5
CLEAN HARBORS OF BALTIMORE, INC.
By: /s/ STEPHEN MOYNIHAN
----------------------------
Name: Stephen Moynihan
Title: Senior Vice President
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