<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED
JUNE 30, 1999
-----------------------
Commission File Number 0-16379
CLEAN HARBORS, INC.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2997780
(State of Incorporation) (IRS Employer Identification No.)
1501 Washington Street, Braintree, MA 02184-7599
(Address of Principal Executive Offices) (Zip Code)
(781) 849-1800 ext. 4454
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, $.01 par value 10,694,659
- ------------------------------------- --------------------------------
(Class) (Outstanding at August 6, 1999)
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<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
PART I: FINANCIAL INFORMATION
<TABLE>
<CAPTION>
ITEM 1: FINANCIAL STATEMENTS PAGES
-------
<S> <C>
Consolidated Statements of Operations 1
Consolidated Balance Sheets 2-3
Consolidated Statements of Cash Flows 4-5
Consolidated Statement of Stockholders' Equity 6
Notes to Consolidated Financial Statements 7-12
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF
OPERATIONS 13-24
PART II: OTHER INFORMATION
Items No. 1 through 6 25-26
Signatures 27
</TABLE>
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
UNAUDITED
(in thousands except for earnings per share amounts)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------- --------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues $51,118 $ 53,591 $ 95,766 $ 93,967
Cost of revenues 37,215 38,975 70,907 70,319
Selling, general and administrative
expenses 8,635 9,180 17,748 17,077
Depreciation and amortization 2,273 2,252 4,639 4,536
-------- -------- -------- --------
Income from operations 2,995 3,184 2,472 2,035
Interest expense, net 2,200 2,318 4,429 4,658
-------- -------- -------- --------
Income (loss) before provision for
income taxes 795 866 (1,957) (2,623)
Provision for income taxes 90 90 180 180
-------- -------- -------- --------
Net income (loss) $ 705 $ 776 $ (2,137) $ (2,803)
======== ======== ======== ========
Basic and fully diluted earnings (loss)
per share $ 0.06 $ 0.06 $ (0.22) $ (0.30)
======== ======== ======== ========
Weighted average common
shares outstanding 10,503 10,274 10,563 10,229
======== ======== ======== ========
Weighted average common
shares plus potentially dilutive
common shares 10,515 10,385 10,563 10,229
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
(1)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1999 1998
(Unaudited)
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 3,500 $ 1,895
Restricted investments 1,148 2,366
Accounts receivable, net of allowance for doubtful
accounts of $1,258 and $1,013, respectively 41,430 41,409
Prepaid expenses 1,210 939
Supplies inventories 2,796 2,858
Income tax receivable 1,236 1,236
-------- --------
Total current assets 51,320 50,703
-------- --------
Property, plant and equipment:
Land 8,478 8,182
Buildings and improvements 39,954 39,521
Vehicles and equipment 81,385 79,430
Furniture and fixtures 2,215 2,190
Construction in progress 2,614 967
-------- --------
134,646 130,290
Less - Accumulated depreciation
and amortization 76,901 73,157
-------- --------
Net property, plant and equipment 57,745 57,133
-------- --------
Other assets:
Goodwill, net 19,941 20,031
Permits, net 12,803 13,322
Other 4,382 4,721
-------- --------
Total other assets 37,126 38,074
-------- --------
Total assets $146,191 $145,910
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
(2)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1999 1998
(Unaudited)
---------------- ------------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term
obligations $ 2,300 $ 4,100
Accounts payable 16,135 17,998
Accrued disposal costs 6,354 6,335
Other accrued expenses 11,121 10,975
Income tax payable 68 50
-------- --------
Total current liabilities 35,978 39,458
-------- --------
Long-term obligations, less current maturities 74,545 68,774
Other 1,441 1,368
-------- --------
Total other liabilities 75,986 70,142
-------- --------
Commitments and contingencies (Note 4)
Stockholders' equity:
Preferred Stock, $.01 par value:
Series A Convertible;
Authorized-2,000,000 shares; Issued and
outstanding - none -- --
Series B Convertible;
Authorized-156,416 shares; Issued and
outstanding 112,000 (liquidation
preference of $5,600,000) 1 1
Common Stock, $.01 par value
Authorized-20,000,000 shares;
Issued and outstanding-10,607,990 and
10,420,874 shares, respectively 106 104
Additional paid-in capital 60,960 60,670
Accumulated other comprehensive loss (24) (10)
Accumulated deficit (26,816) (24,455)
-------- --------
Total stockholders' equity 34,227 36,310
-------- --------
Total liabilities and stockholders' equity $146,191 $145,910
======== ========
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
(3)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
UNAUDITED
(in thousands)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
----------------------------
1999 1998
------- -------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(2,137) $(2,803)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities:
Depreciation and amortization 4,639 4,536
Allowance for doubtful accounts 342 342
Amortization of deferred financing costs 172 317
Changes in assets and liabilities:
Accounts receivable (363) (8,779)
Refundable income taxes -- 432
Prepaid expenses (271) (238)
Supplies inventories 62 (324)
Other assets 339 32
Accounts payable (1,863) 5,350
Accrued disposal costs 19 (592)
Other accrued expenses 146 1,001
Taxes payable 18 36
Other liabilities 73 (229)
------- -------
Net cash provided by (used in) operating activities 1,176 (919)
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment (2,728) (2,801)
Acquisition (1,900) --
Proceeds from sale and maturities of
restricted investments 1,204 64
Purchase of restricted investments (14) (717)
------- -------
Net cash provided by (used in) investing
activities $(3,438) $(3,454)
------- -------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
(4)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
UNAUDITED
(in thousands)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-----------------------
1999 1998
------ ------
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Net borrowings under long-term revolver $1,010 $7,005
Additional borrowings under term note 4,139 --
Payments on long-term obligations (1,350) (1,503)
Additions to deferred financing cost -- (14)
Proceeds from employee stock purchase plan 68 65
------ ------
Net cash provided by (used in) financing activities 3,867 5,553
------ ------
INCREASE IN CASH AND CASH EQUIVALENTS 1,605 1,180
Cash and cash equivalents, beginning of year 1,895 3,935
------ ------
Cash and cash equivalents, end of period $3,500 $5,115
====== ======
Supplemental information:
Non cash investing and financing activities:
Stock dividend on preferred stock $ 224 $ 224
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
(5)
<PAGE>
<TABLE>
<CAPTION>
Series B Accumulated
Preferred Stock Common Stock Other
-------------------- -------------------- Additional Comprehensive Comprehensive
Number of $0.01 Par Number of $0.01 Par Paid-in Income Income
Shares Value Shares Value Capital (Loss) (Loss)
--------- --------- --------- --------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1998 112 $1 10,421 $104 $60,670 -- $(10)
Net loss -- -- -- -- -- $(2,137) --
Other comprehensive income, net of tax:
Unrealized holding losses arising during
the peroid -- -- -- -- -- (14) --
Reclassification adjustment for
gains (losses) included in net loss -- -- -- -- -- -- --
-------
Other comprehensive income (loss) -- -- -- -- -- (14) (14)
-------
Comprehensive loss -- -- -- -- -- $(2,151) --
=======
Preferred stock dividends:
Series B -- -- 137 1 223 -- --
Employee stock purchase plan -- -- 50 1 67 -- --
--- -- ------ ---- ------- ------- ----
Balance at June 30, 1999 112 $1 10,608 $106 $60,960 -- $(24)
=== == ====== ==== ======= ======= ====
<CAPTION>
Total
Accumulated Stockholders'
Deficit Equity
-------- -------
<S> <C> <C>
Balance at December 31, 1998 $(24,455) $36,310
Net loss (2,137) (2,137)
Other comprehensive income, net of tax:
Unrealized holding losses arising during
the peroid -- --
Reclassification adjustment for
gains (losses) included in net loss -- --
Other comprehensive income (loss) -- (14)
Comprehensive loss -- --
Preferred stock dividends:
Series B (224) --
Employee stock purchase plan -- 68
--------- -------
Balance at June 30, 1999 $(26,816) $34,227
========= =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
(6
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 BASIS OF PRESENTATION
The consolidated interim financial statements included herein have
been prepared by the Company, pursuant to the rules and regulations of the
Securities and Exchange Commission, and include, in the opinion of management,
all adjustments (consisting of only normal recurring accruals) necessary for the
fair statement of results of interim periods. The operating results for the
three and six months ended June 30, 1999 are not necessarily indicative of those
to be expected for the full fiscal year. Reference is made to the audited
consolidated financial statements and notes thereto included in the Company's
Report on Form 10-K for the year ended December 31, 1998 as filed with the
Securities and Exchange Commission.
NOTE 2 SIGNIFICANT ACCOUNTING POLICIES
Capitalization of Software Developed Internally
In March 1998, the American Institute of Certified Public Accountants
issued Statement of Position 98-1, ACCOUNTING FOR THE COSTS OF COMPUTER SOFTWARE
DEVELOPED OR OBTAINED FOR INTERNAL USE ("SOP 98-1"), effective for periods
beginning after December 15, 1998. SOP 98-1 provides guidance on defining
internal use software and the accounting for the costs thereof. The adoption of
this statement in the period ended March 31, 1999 did not have a significant
effect on the Company's results of operations or its financial position.
NOTE 3 ACQUISITION
On May 25, 1999, the Company acquired the assets of the Texas
Transportation and Brokerage Divisions of American Ecology Environmental
Services Corporation for a cash price of $1,900,000. The divisions operate out
of locations in Dallas, Houston and Corpus Christi, Texas. The divisions provide
waste management services primarily to small quantity generators throughout
Texas and transportation services for both solid and liquid wastes. This
acquisition has been accounted for under the purchase method of accounting. The
purchase price has been allocated based on estimated fair values of assets
acquired at the date of acquisition. The acquisition resulted in $272,000 of
acquired goodwill, which is being amortized on the straight-line basis over 20
years. The results of the acquired businesses have been included in the
consolidated financial statements since the acquisition date. The acquisition
did not materially effect revenues or results from operations for the three and
six months ended June 30, 1999.
Assuming this acquisition had occurred January 1, 1998, consolidated,
pro forma revenues, net income (loss) and earnings (loss) per share would not
have been materially different than the amounts reported for the three and six
months ended June 30, 1999 and 1998. Such unaudited pro forma amounts are not
indicative of what the actual consolidated results of operations might have been
if the acquisition had been effective at the beginning of 1998.
(7)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 4 LEGAL MATTERS
As disclosed in the Form 10-K for the year ended December 31, 1998,
the Company was party to an ongoing lawsuit against the City of Chicago
challenging the imposition of a waste charge by the City of Chicago on every
gallon of waste received at the Company's Chicago facility. In June 1999, the
Company and the City of Chicago reached a settlement agreement in principle
where the City of Chicago agreed to pay the Company $320,000. The $320,000
settlement was recorded as a reduction of selling, general and administrative
expenses for the three months ended June 30, 1999.
NOTE 5 FINANCING ARRANGEMENTS
As described in the Form 10-K for the year ended December 31, 1998,
the Company had a $35,000,000 Loan Agreement which consisted of a revolving
credit agreement (the "Revolver") and a term promissory note (the "Term Note").
In May 1999, the Term Note was amended. The Term Note, as amended, allowed the
Company to increase the amount borrowed under the Term Note by $4,139,000 from
the $1,861,000 owed prior to the amendment of the Term Note to the $6,000,000
principal amount of Term Note, as amended. The Term Note as amended is payable
in monthly installments of $100,000 through May 2004. The other terms and
conditions of the Term Note remain substantially the same.
In May 1999, the due date of the Revolver was extended from May 8,
2000 to May 8, 2001 under substantially the same terms and conditions. The
Revolver allows the Company to borrow up to $24,500,000 in cash and letters of
credit, based on a formula of eligible accounts receivable. At June 30, 1999,
the Revolver balance was $10,932,000, letters of credit outstanding were
$6,307,000 and funds available to borrow were approximately $7,261,000.
The Loan Agreement has covenants that require, among others,
maintenance of a minimum level of working capital and adjusted net worth. At
June 30, 1999, the Loan Agreement required minimum amounts of working capital
and adjusted net worth of $6,000,000 and $33,000,000, respectively. At June 30,
1999, the Company had working capital and adjusted net worth of $15,342,000 and
$35,227,000, respectively. The Company must also maintain borrowing availability
of not less than $4,500,000 for sixty consecutive days prior to paying principal
and interest on its other indebtedness and dividends in cash on its preferred
stock. In the first half of 1999, the Company violated this covenant, which has
been waived by the financial institution through May 15, 1999. Since May 15,
1999, the Company has been in compliance with this covenant.
(8)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 5 FINANCING ARRANGEMENTS (CONTINUED)
In addition, the Indenture under which the Company has outstanding
$10,000,000 of industrial revenue bonds (the "Bonds") contains certain covenants
the most restrictive of which require the Company maintain a rolling four
quarter ratio of earnings before interest, income taxes, depreciation and
amortization (EBITDA) to total debt service of 1.25 to 1. At December 31, 1997
the debt service coverage ratio was 1.04 to 1. Under the terms of the Bonds, the
deficiency in the debt coverage ratio did not and will not result in a default,
but the Company was required to pay into a debt service reserve fund held by the
Trustee for the Bonds a total amount equal to the annual debt service for one
year on the Bonds. Through March 31, 1999, the Company had paid $1,075,000 into
this fund, as required. Under the terms of the Bonds, the Company can request
that the balance of the debt service reserve fund be returned to the Company if
a debt service coverage ratio of 1.50 to 1 is met for two consecutive quarters.
For the quarters ended March 31, 1999 and December, 31, 1998, the debt service
coverage ratios were 1.68 and 1.58, respectively. In May 1999, the Trustee for
the Bonds returned the balance of the debt service reserve fund to the Company.
The balance of the debt service reserve fund was reflected as a component of
restricted cash at December 31, 1998. At June 30, 1999, the debt service
coverage ratio of 1.52 to 1 was greater than the 1.25 to 1 required.
NOTE 6 INCOME TAXES
SFAS 109, "Accounting for Income Taxes," requires that a valuation
allowance be established when, based on an evaluation of objective verifiable
evidence, there is a likelihood that some portion or all of the deferred tax
assets will not be realized. The Company continually reviews the adequacy of the
valuation allowance for deferred tax assets, and in 1997, based upon this
review, the valuation allowance was increased to cover substantially all net
deferred tax assets. Accordingly, no benefit has been recorded on its books for
the future potential value of net operating loss carryforwards for the three and
six months ended June 30, 1998 and 1999. The actual realization of the net
operating loss carryforwards and other tax assets depend on having future
taxable income of the appropriate character prior to their expiration. If the
Company reports earnings from operations in the future, and depending on the
level of these earnings, some portion or all of the valuation allowance would be
reversed, which would increase net income reported in future periods.
(9)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 6 INCOME TAXES (CONTINUED)
During the ordinary course of its business, the Company is audited by
federal and state tax authorities which may result in proposed assessments. In
1996, the Company received a notice of intent to assess state income taxes from
one of the states in which it operates. The case is currently undergoing
administrative appeal. If the Company loses the administrative appeal, the
Company may be required to make a payment of approximately $3,000,000 to the
state. The Company can not currently predict when the decision for the
administrative appeal will be made. The Company believes that it has properly
reported its state income and intends to contest the assessment vigorously.
While the Company believes that the final outcome of the dispute will not have a
material adverse effect on the Company's financial condition or results of
operations, no assurance can be given as to the final outcome of the dispute,
the amount of any final adjustments or the potential impact of such adjustments
on the Company's financial condition or results of operations.
(10)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 7 EARNINGS (LOSS) PER SHARE
The following is a reconciliation of basic and diluted loss per share
computations (in thousands except for per share amounts):
<TABLE>
<CAPTION>
Three Months Ended June 30, 1999
------------------------------------
Income Shares Per-Share
(Numerator) (Denominator) Earnings
---------- ------------ ---------
<S> <C> <C> <C>
Net income $705
Less preferred dividends 112
---- ------ -----
Basic EPS
(income available to shareholders) 593 10,503 0.06
Effect of dilutive securities
Options -- 12 --
---- ------ -----
Diluted EPS
Income available to common
stockholders plus assumed conversions $593 10,515 $0.06
==== ====== =====
<CAPTION>
Three Months Ended June 30, 1999
------------------------------------
Income Shares Per-Share
(Numerator) (Denominator) Earnings
---------- ------------ ---------
<S> <C> <C> <C>
Net income $776
Less preferred dividends 112
---- ------ -----
Basic EPS
(income available to shareholders) 654 10,274 0.06
Effect of dilutive securities
Options -- 111 --
---- ------ -----
Diluted EPS
Income available to common
stockholders plus assumed conversions $654 10,385 $0.06
==== ====== =====
</TABLE>
(11)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 7 EARNINGS (LOSS) PER SHARE
<TABLE>
<CAPTION>
Six Months Ended June 30, 1999
------------------------------------
Income Shares Per-Share
(Numerator) (Denominator) Loss
---------- ------------ ---------
<S> <C> <C> <C>
Net loss $(2,137)
Less preferred dividends 224
---- ------ -----
Basic and diluted EPS
(loss available to shareholders) $(2,361) 10,563 (0.22)
======= ======= =====
<CAPTION>
Six Months Ended June 30, 1999
------------------------------------
Income Shares Per-Share
(Numerator) (Denominator) Loss
---------- ------------ ---------
<S> <C> <C> <C>
Net loss $(2,803)
Less preferred dividends 224
---- ------ ------
Basic and diluted EPS
(loss available to shareholders) $(3,027) 10,229 $(0.30)
======= ====== ======
</TABLE>
The Company has issued options, warrants and convertible preferred
stock which are potentially dilutive to earnings. For the three months ended
June 30, 1999 and 1998, some of the options outstanding but none of the warrants
or convertible preferred stock are dilutive to earnings. Only those options
where the options' exercise price was less than the average market price of the
common shares for the period are included in the above calculations. For the
other periods presented, the options, warrants and convertible stock outstanding
have not been included in the above calculations, since their inclusion would
have been antidilutive for the periods.
(12)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FORWARD-LOOKING STATEMENT
In addition to historical information, this Quarterly Report contains
forward-looking statements, which are generally identifiable by use of the words
"believes," "expects," "intends," "anticipates," "plans to," "estimates,"
"projects," or similar expressions. These forward-looking statements are subject
to certain risks and uncertainties that could cause actual results to differ
materially from those reflected in these forward-looking statements. Factors
that might cause such a difference include, but are not limited to, those
discussed in the section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations-Factors That May Affect Future
Results." Readers are cautioned not to place undue reliance on these
forward-looking statements, which reflect management's opinions only as of the
date hereof. The Company undertakes no obligation to revise or publicly release
the results of any revision to these forward-looking statements. Readers should
carefully review the risk factors described in other documents the Company files
from time to time with the Securities and Exchange Commission.
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated certain
operating data associated with the Company's results of operations.
<TABLE>
<CAPTION>
Percentage of Total Revenues
-----------------------------------------------
Three Months Ended Six Months Ended
March 31, June 30,
-----------------------------------------------
1999 1998 1999 1998
----- ----- ----- -----
<S> <C> <C> <C> <C>
Revenues 100.0% 100.0% 100.0% 100.0%
Cost of revenues:
Disposal costs paid to third parties 13.9 14.8 13.2 14.0
Other costs 58.9 57.9 60.8 60.8
----- ----- ----- -----
Total cost of revenues 72.8 72.7 74.0 74.8
Selling, general and administrative
expenses 16.9 17.2 18.5 18.2
Depreciation and amortization
of intangible assets 4.4 4.2 4.9 4.8
----- ----- ----- -----
Income from operations 5.9% 5.9% 2.6% 2.2%
===== ===== ===== =====
</TABLE>
(13)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS (CONTINUED)
<TABLE>
<CAPTION>
------------------------------------------
Three Months Ended Six Months Ended
March 31, June 30,
------------------------------------------
1999 1998 1999 1998
---- ---- ----- ----
<S> <C> <C> <C> <C>
Other Data:
Earnings before interest, taxes,
depreciation and amortization
(EBITDA) (in thousands) $5,268 $5,436 $7,111 $6,571
</TABLE>
REVENUES
Revenues for the second quarter of 1999 were $51,118,000, down
compared to revenues of $53,591,000 for the second quarter of the prior year, a
decrease of $2,473,000 or 4.6%. The primary cause of the decrease in revenues
was due to the 13.7% decrease in the volume of waste processed through the
Company's facilities. Most of the decrease in the volume of waste processed
through the Company's facilities was due to the Company's decision to increase
the selling prices on certain waste streams that were determined to be
unprofitable or only marginally profitable. This decrease in revenue was
partially offset by a 7.0% increase in the volume of site services work
performed. Pricing for the three months ended June 30, 1999 increased by 1.3% as
compared to the same period of the prior year.
Revenues for the first six months of 1999 were $95,766,000, up
compared to revenues of $93,967,000 for the same period of the prior year. The
majority of the increase in revenues was due to an increase in revenues from
site services, primarily due to a higher level of emergency response business
for the six months ended June 30, 1999 compared to the same period of the prior
year. Pricing on waste processed through the Company's facilities increased by
1.3% for the six months ended June 30, 1999 as compared to the same period of
the prior year. Billed hours on site services projects were flat as compared to
the same period of the prior year. Partially offsetting these increases in
revenues was a decrease in revenues due to a 13.2% decrease in the volume of
waste processed through the Company's facilities for the six months ended June
30, 1999 as compared to the same period of the prior year. A large portion of
the decrease in the volume of waste processed through the Company's facilities
was due to the Company's decision to increase the selling prices on certain
waste streams that were determined to be unprofitable or only marginally
profitable.
(14)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS (CONTINUED)
There are many factors which have impacted, and continue to impact,
the Company's revenues. These factors include: competitive industry pricing;
continued efforts by generators of hazardous waste to reduce the amount of
hazardous waste they produce; significant consolidation among treatment and
disposal companies; industry-wide over capacity; and direct shipment by
generators of waste to the ultimate treatment or disposal location.
COST OF REVENUES
Cost of revenues were $37,215,000 for the three months ended June 30,
1999 compared to $38,975,000 for the three months ended June 30, 1998, a
decrease of $1,760,000 or 4.5%. As a percentage of revenues, cost of revenues
increased from 72.7% for the three months ended June 30, 1998 to 72.8% for the
three months ended June 30, 1999. One of the largest components of cost of
revenues is the cost of sending waste to other companies for disposal. Disposal
costs paid to third parties as a percentage of revenue declined from 14.8% for
the three months ended June 30, 1998 to 13.9% for the three months ended June
30, 1999. This decrease was primarily due to the reduced volumes of waste
handled by the Company in the three months ended June 30, 1999 as compared to
the same period of the prior year. Other costs of revenues as a percentage of
revenues increased from 57.9% for the three months ended June 30, 1998 to 58.9%
for the three months ended June 30, 1999. This increase was primarily due to the
increase in plant related costs as a percentage of revenue due to the fixed cost
nature of the plants and the decrease in waste processed through the plants.
Cost of revenues were $70,907,000 for the six months ended June 30,
1999 as compared to $70,319,000 for the six months ended June 30, 1998, an
increase of $588,000 or 0.8%. As a percentage of revenues, cost of revenues
decreased from 74.8% for the six months ended June 30, 1998 to 74.0% for the
six months ended June 30, 1999. Disposal costs paid to third parties as a
percentage of revenue declined from 14.0% for the six months ended June 30,
1998 to 13.2% for the six months ended June 30, 1999. This decrease was
primarily due to the reduced volumes of waste handled by the Company in the
six months ended June 30, 1999 as compared to the same period of the prior
year. Other costs of revenues as a percentage of revenues were flat at 60.8%
of revenues for the six months ended June 30, 1999 and 1998. Although other
costs of revenues were flat as a percentage of revenue, there was an increase
in plant related costs as a percentage of revenue due to the fixed cost
nature of the plants and the decrease in waste processed through the plants.
This increase in other cost of revenues as a percentage of revenues was
primarily offset by increased margins on site services work due to the types
of jobs and volume of work performed.
(15)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
COST OF REVENUES (CONTINUED)
The Company believes that its ability to manage operating costs is an
important factor in its ability to remain price competitive. During the first
quarter of 1999, the Company commenced a strategic sourcing initiative in order
to reduce operating costs by identifying suppliers that are able to supply goods
and services at lower costs, by obtaining volume discounts where the Company is
currently purchasing goods and services from various suppliers and consolidating
these purchases with a small number of suppliers, and by reducing the internal
costs of purchasing goods and services by reducing the number of suppliers that
the Company uses through reducing the number of purchase orders that must be
prepared and invoices that must be processed. No assurance can be given that the
Company's efforts to manage future operating expenses will be successful.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses decreased from $9,180,000
for the three months ended June 30, 1998 to $8,635,000 for the three months
ended June 30, 1999, a decrease of $545,000 or 5.9%. The largest part of the
decrease was due to recording as a reduction to expense $320,000 relating to
reaching a settlement agreement in principle with the City of Chicago which
represents, in part, a reimbursement of costs incurred in bringing the suit. In
addition, the Company achieved reductions in costs across a number of expense
categories. Partially offsetting these decreases in expenses were increases in
expenses relating to employee headcount in sales and marketing due to strategic
business initiatives and increases in compensation to remain competitive in the
employment markets in which the Company operates.
Selling, general and administrative expenses increased to $17,748,000
for the six months ended June 30, 1999 from $17,077,000 for the six months ended
June 30, 1998, an increase of $671,000 or 3.8%. The largest components of the
increase are due to increases in headcount due to higher levels of revenues,
increases in headcount in sales and marketing due to strategic business
initiatives and increases in compensation to remain competitive in the
employment markets in which the Company operates. The Company also experienced
increases in non-payroll sales and marketing expenses related to sales
initiatives. Partially offsetting these increases in expenses were the $320,000
reduction to expense relating to the settlement agreement in principle with the
City of Chicago and reductions in costs across a number of categories.
(16)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
INTEREST EXPENSE, NET
Interest expense net of interest income was $2,200,000 for the second
quarter of 1999 as compared to $2,318,000 for the second quarter of 1998. The
decrease in interest expense is primarily due to a decrease in the average
balance of loans outstanding.
Interest expense net of interest income was $4,429,000 for the first
half of 1999 as compared to $4,658,000 for the first half of 1998. The decrease
in interest expense is primarily due to a decrease in the average balance of
loans outstanding.
INCOME TAXES
For the three months ended June 30, 1999, income tax expense of
$90,000 was recorded on pre-tax income of $795,000 for an effective tax rate of
11.3%, as compared to the same period of the prior year where tax expense of
$90,000 was recorded on pre-tax income of $866,000 for an effective tax rate of
10.3%. For the six months ended June 30, 1999, income tax expense of $180,000
was recorded on pre-tax loss of $(1,957,000) for an effective tax rate of
(9.1)%, as compared to the same period of the prior year where tax expense of
$180,000 was recorded on pre-tax loss of $(2,623,000) for an effective tax rate
of (6.8)%. SFAS 109, "Accounting for Income Taxes," requires that a valuation
allowance be established when, based on an evaluation of objective verifiable
evidence, there is a likelihood that some portion or all of the deferred tax
assets will not be realized. The Company continually reviews the adequacy of its
valuation allowance for deferred tax assets, and in 1997, based on this review,
the valuation allowance was increased to cover substantially all net deferred
tax assets. Accordingly, no benefit has been recorded on its books for the
future potential value of net operating loss carryforwards for the three and six
months ended June 30, 1998 and 1999.
The actual realization of the net operating loss carryforwards and
other tax assets depend on having future taxable income of the appropriate
character prior to their expiration under the tax laws. If the Company reports
earnings from operations in the future, and depending on the level of these
earnings, some portion or all of the valuation allowance would be reversed,
which would increase net income reported in future periods.
The $180,000 in income tax expense recorded for the each of periods
ended June 30, 1998 and 1999 is due to the tangible property taxes and net worth
taxes that are levied as a component of state income taxes.
(17)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
INCOME TAXES (CONTINUED)
During the ordinary course of its business, the Company is audited by
federal and state tax authorities which may result in proposed assessments. In
1996, the Company received a notice of intent to assess state income taxes from
one of the states in which it operates. The case is currently undergoing
administrative appeal. If the Company loses the administrative appeal, the
Company may be required to make a payment of approximately $3,000,000 to the
state. The Company cannot currently predict when the decision for the
administrative appeal will be made. The Company believes that it has properly
reported its state income and intends to contest the assessment vigorously.
While the Company believes that the final outcome of the dispute will not have a
material adverse effect on the Company's financial condition or results of
operations, no assurance can be given as to the final outcome of the dispute,
the amount of any final adjustments or the potential impact of such adjustments
on the Company's financial condition or results of operations.
FACTORS THAT MAY AFFECT FUTURE RESULTS
From time to time, the Company and employees acting on behalf of the
Company make forward-looking statements concerning the expected revenues,
results of operations, capital expenditures, capital structure, plans and
objectives of management for future operations, and future economic performance.
This report contains forward-looking statements. There are many factors which
could cause actual results to differ materially from those projected in a
forward-looking statement, and there can be no assurance that such expectations
will be realized.
The Company's future operating results may be affected by a number of
factors, including the Company's ability to: utilize its facilities and
workforce profitably in the face of intense price competition; maintain or
increase market share in an industry which appears to be downsizing and
consolidating; realize benefits from cost reduction programs; generate
incremental volumes of waste to be handled through its facilities from existing
sales offices and service centers; obtain sufficient volumes of waste at prices
which produce revenue sufficient to offset the operating costs of the
facilities; minimize downtime and disruptions of operations; and develop the
industrial services, and the consulting and information services business.
(18)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FACTORS THAT MAY AFFECT FUTURE RESULTS (CONTINUED)
The Company's operations may be affected by the commencement and
completion of major site remediation projects; cleanup of major spills or other
events; seasonal fluctuations due to weather and budgetary cycles influencing
the timing of customers' spending for remedial activities; the timing of
regulatory decisions relating to hazardous waste management projects; changes in
regulations governing the management of hazardous waste; secular changes in the
waste processing industry towards waste minimization and the propensity for
delays in the remedial market; suspension of governmental permits; and fines and
penalties for noncompliance with the myriad of regulations governing the
Company's diverse operations. As a result of these factors, the Company's
revenue and income could vary significantly from quarter to quarter, and past
financial performance should not be considered a reliable indicator of future
performance.
Typically during the first quarter of each calendar year there is less
demand for environmental remediation due to the cold weather, particularly in
the Northeast and Midwest regions, and increased possibility of unplanned
weather related plant shutdowns.
FINANCIAL CONDITION AND LIQUIDITY
For the six months ended June 30, 1999, the Company generated
$1,176,000 of cash from operations even though it lost $(2,137,000) for the
period primary due to non-cash expenses that total $5,153,000 and consist of
depreciation and amortization of $4,639,000, additions to the allowance for
doubtful accounts of $342,000 and amortization of deferred financing costs of
$172,000. Partially offsetting these sources of cash are the primary uses of
cash of $2,137,000 due to the net loss for the period and a $1,863,000 decrease
in accounts payable at June 30, 1999 as compared to December 31, 1998.
For the six months ended June 30, 1999, the Company obtained
$3,867,000 from financing activities. Sources of cash from financing activities
were $4,139,000 due to additional borrowings under of the term promissory note,
$1,010,000 due to additional net borrowings under the revolving credit agreement
and $68,000 due to the issuance of additional stock under the employee stock
purchase plan. Partially offsetting these sources of cash was $1,350,000 in
payments on long-term obligations.
The Company generated $1,176,000 of cash from operations and
$3,867,000 from financing activities together with $1,204,000 from the sale and
maturities of restricted investments, which was almost completely due to the
release of restricted funds that were held in a debt service reserve fund at
December 31, 1998. These funds totaling $6,247,000 were used primarily to
acquire property, plant and equipment of $2,728,000, to acquire two divisions of
American Ecology Environmental Services Corporation for $1,900,000 and to
increase the amount of cash and cash equivalents by $1,605,000.
(19)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION AND LIQUIDITY (CONTINUED)
For the six months ended June 30, 1998, the Company's operations
consumed $919,000 of cash primarily to finance higher levels of accounts
receivable of $8,779,000 due to increased sales and to cover the net loss of
$2,803,000 for the period. Partially offsetting these uses of cash were cash
provided by increases in accounts payable $5,350,000 and other accrued expenses
of $1,001,000, both of which were caused by higher volumes of activity, and the
non-cash depreciation and amortization expenses of $4,536,000. The Company
obtained $5,553,000 from financing activities, which consisted primarily of
additional net borrowings, and the Company used these funds primarily to
purchase property, plant and equipment of $2,801,000, to make payments into a
debt service reserve fund of $717,000 and to increase the amount of cash on hand
by $1,180,000.
The Company believes 1999 capital additions of approximately
$5,000,000 will be required to maintain existing capital assets, replace site
services equipment and upgrade information technology hardware and software.
However, the Company continues to evaluate potential acquisitions and opening
additional site services offices within and next to the Company's service areas.
Thus, it is possible that capital additions could exceed the $5,000,000
currently planned.
As described in the Form 10-K for the year ended December 31, 1998,
the Company had a $35,000,000 Loan Agreement which consisted of a revolving
credit agreement (the "Revolver") and a term promissory note (the "Term Note").
In May 1999, the Term Note was amended. The Term Note, as amended, allowed the
Company to increase the amount borrowed under the Term Note by $4,139,000 from
the $1,861,000 owed prior to the amendment of the Term Note to the $6,000,000
principal amount of Term Note, as amended. The Term Note, as amended is payable
in monthly installments of $100,000 through May 2004. The other terms and
conditions of the Term Note remain substantially the same.
In May 1999, the due date of the Revolver was extended from May 8,
2000 to May 8, 2001 under substantially the same terms and conditions. The
Revolver allows the Company to borrow up to $24,500,000 in cash and letters of
credit, based on a formula of eligible accounts receivable. At June 30, 1999,
the Revolver balance was $10,932,000, letters of credit outstanding were
$6,307,000 and funds available to borrow were approximately $7,261,000.
(20)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION AND LIQUIDITY (CONTINUED)
The Loan Agreement has covenants that require, among others, maintenance of a
minimum level of working capital and adjusted net worth. At June 30, 1999, the
Loan Agreement required minimum amounts of working capital and adjusted net
worth of $6,000,000 and $33,000,000 respectively. At June 30, 1999, the Company
had working capital and adjusted net worth of $15,342,000 and $35,227,000,
respectively. The Company must also maintain borrowing availability of not less
than $4,500,000 for sixty consecutive days prior to paying principal and
interest on its other indebtedness and dividends in cash on its preferred stock.
In the first half of 1999, the Company violated this covenant, which has been
waived by the financial institution through May 15, 1999. Since May 15, 1999,
the Company has been in compliance with this covenant. Management believes that
it will be able to comply with this covenant for the foreseeable future, and the
financial institution has stated it will continue to waive this covenant, if
violated, so long as the Company is in substantial compliance with the covenant.
However, no assurance can be given that this covenant will not be violated and
that this covenant will be waived, if violated, in the future by the financial
institution. There were no other violations of loan covenants at June 30, 1999.
In addition, the Indenture under which the Company has outstanding
$10,000,000 of industrial revenue bonds (the "Bonds") contains certain covenants
the most restrictive of which require the Company maintain a rolling four
quarter ratio of earnings before interest, income taxes, depreciation and
amortization (EBITDA) to total debt service of 1.25 to 1. At December 31, 1997
the debt service coverage ratio was 1.04 to 1. Under the terms of the Bonds, the
deficiency in the debt coverage ratio did not and will not result in a default,
but the Company was required to pay into a debt service reserve fund held by the
Trustee for the Bonds a total amount equal to the annual debt service for one
year on the Bonds. Through March 31, 1999, the Company had paid $1,075,000 into
this fund, as required. Under the terms of the Bonds, the Company can request
that the balance of the debt service reserve fund be returned to the Company if
a debt service coverage ratio of 1.50 to 1 is met for two consecutive quarters.
For the quarters ended March 31, 1999 and December, 31, 1998, the debt service
coverage ratios were 1.68 and 1.58, respectively. In May 1999, the Trustee for
the Bonds returned the balance of the debt service reserve fund to the Company.
The balance of the debt service reserve fund was reflected as a component of
restricted cash at December 31, 1998. At June 30, 1999, the debt service
coverage ratio of 1.52 to 1 was greater than the 1.25 to 1 required.
(21)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION AND LIQUIDITY (CONTINUED)
The Company has $50,000,000 of Senior Notes which mature in May 2001.
Most or all of the borrowings under the Senior Notes will need to be refinanced
by the maturity date. The ability of the Company to refinance the Senior Notes
at reasonable interest rates is dependent upon improving results from operations
and is contingent on both a favorable interest rate environment and a market
that is receptive of the type of debt that would be issued. No assurance can be
given that the Company will be successful in improving the results from
operations, that the credit markets will be receptive to the issuance of this
type of debt or that there will exist a favorable interest rate environment.
Dividends on the Company's Series B Convertible Preferred Stock are
payable on the 15th day of January, April, July and October, at the rate of
$1.00 per share, per quarter; 112,000 shares are outstanding. The Company
currently is restricted in the payment of cash dividends due to covenants in its
loan agreements. Under the terms of the preferred stock, the Company can elect
to pay dividends in cash or in common stock with a market value equal to the
amount of the dividend payable. The Company paid the January 15 and April 15,
1999 dividends in common stock. Accordingly, the Company issued 71,340 and
65,402 shares of common stock to the holders of the preferred stock in the three
month periods ended March 31 and June 30, 1999, respectively. The Company
anticipates that the preferred stock dividends payable through 1999 will be paid
in common stock.
YEAR 2000
As has been widely discussed in the media, companies around the world are
working on resolving the anticipated problems relating to the year 2000. The
problem stems from the fact that much of the computer software, computer
hardware and control devices produced in prior years provide only two digits
with which to record the year. This may result in these products not functioning
or producing unexpected results when the year 2000 is recorded as "00", and the
program or device is unable to differentiate whether the "00" represents the
year 1900 or 2000. Since 1998, the Company has been working on identifying and
correcting the year 2000 problems. Although the work is on-going, the Company
has identified potential year 2000 issues related to its management information
systems, control devices used at its plants, and readiness of vendors and
customers for the year 2000.
(22)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
YEAR 2000 (CONTINUED)
Starting in 1996, the Company began a major upgrade of all
management information systems with the ultimate aim being better control
over costs and better availability of management information, which
management believes will yield improved operating results. As a by-product of
this upgrade, the Company believes that all of its major management
information systems are currently year 2000 compliant, with the exception of
the accounts receivable and human resource systems. The Company has installed
an accounts receivable module as part of its new financial software package.
The Company is in the process of implementing the accounts receivable system
and anticipates that the new accounts receivable system will be functional by
the end of 1999. The Company has purchased a new human resource system as
part of its long-term management information strategy at a cost of
approximately $100,000 that it expects to be able to install in 1999. Should
the installation be delayed, a year 2000 upgrade is available for the
existing software. At this time, the Management of the Company believes that
all major systems will be year 2000 compliant prior to the end of 1999.
The Company has also compiled a list of secondary computer software
and hardware that is not year 2000 compliant. Although the cost of modifying or
replacing the secondary software and hardware that is not year 2000 compliant
has not been determined, a review of the list indicates that the cost will not
be material to the results of operations of the Company.
In addition to computer software and hardware, the Company utilizes a
variety of control devices in its plants, most of which are not date or time
sensitive. Based on an inventory of the control devices, the cost of replacing
the control devices that are not year 2000 compliant approximated $100,000 and
this cost has been recorded as an expense for the six months ending June 30,
1999. The Company replaced these control devices during regularly scheduled
plant shutdowns in April of 1999.
The Company relies on a large number of primary vendors to supply
required products and services. Since the unavailability of key goods and
services could potentially disrupt the Company's operations, letters have been
sent to all primary and secondary vendors to determine their readiness for the
year 2000. To date 80% of vendors have responded to the Company's inquiry and
all critical vendors are being individually contacted. The effort to qualify all
primary vendors and certain potentially key secondary vendors as to their
readiness for the year 2000 problem is on-going. A contingency plan for backup
vendors is being established and will be implemented for those primary vendors
that fail to comply.
The Company relies on its customers to pay for services performed
within a commercially reasonable period of time. If the computer systems of
customers are not year 2000 compliant, there is a possibility that the
collection of bills, thus cash flow, could be adversely impacted in the first
quarter of 2000.
(23)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
YEAR 2000 (CONTINUED)
As discussed above, the Company is trying to insure that all mission
critical software, hardware and control devices are year 2000 compliant and that
there will be no disruption of service to its client base. In addition, the
Company is trying to insure that primary suppliers, key secondary suppliers and
significant customers are ready for the year 2000. However, due to the pervasive
use of computers and control devices throughout all businesses, there is a risk
that certain key non-compliant year 2000 software, hardware and control devices
will be overlooked by the Company, our vendors or our customers, which could
adversely affect revenues or cash flow early in the year 2000.
The Company has made significant progress on resolving problems
related to the year 2000. The Securities and Exchange Commission in Release
33-7558, DISCLOSURE OF YEAR-2000 ISSUES AND CONSEQUENCES BY PUBLIC COMPANIES,
INVESTMENT ADVISERS, INVESTMENT COMPANIES, AND MUNICIPAL SECURITIES ISSUERS,
dated August 4, 1998 requires that all companies disclose their most reasonably
likely worst case scenario relating to the year 2000. The Company has
interpreted this to mean that the assumption is that there will be no further
future progress on resolving known problems related to the year 2000. Although
the Company intends to work diligently to resolve known year 2000 problems, the
Company believes that the most reasonably likely worst case scenarios of not
being able to make any further progress on its known year 2000 problems would be
a decrease in cash flow due to inefficient collection of monies owed the Company
because of the accounts receivable system, a disruption in cash flow due to the
Company's customers not being able to pay their bills due to their systems being
non-compliant, and a decrease in revenues due to the inability of the Company to
obtain required goods and services because of the vendor's systems being
non-compliant. The Company will continue to monitor the situation and will
continue to develop contingency plans as required.
NEW ACCOUNTING PRONOUNCEMENTS
In 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, ACCOUNTING FOR THE COSTS OF COMPUTER SOFTWARE
DEVELOPED OR OBTAINED FOR INTERNAL USE ("SOP 98-1") which provides guidance on
the accounting for the costs of software developed or obtained for internal use.
SOP 98-1 is effective for fiscal years beginning after December 15, 1998. The
adoption of this statement in the period ended March 31, 1999 did not have a
significant effect on the Company's results of operations or its financial
position.
In 1999, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 135 RESCISSION OF FASB STATEMENT NO. 75 AND
TECHNICAL CORRECTIONS. Statement No. 135 is effective for fiscal years ending
after February 15, 1999. It provides technical correction to 29 accounting
documents. The Company is currently studying the provisions of SFAS No. 135, and
has not adopted such provisions for the periods ended June 30, 1999.
(24)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
PART II - OTHER INFORMATION
ITEM 1 - LEGAL PROCEEDINGS
As disclosed in the Form 10-K for the year ended December 31, 1998,
the Company was party to an ongoing lawsuit against the City of Chicago
challenging the imposition of a waste charge by the City of Chicago on every
gallon of waste received at the Company's Chicago facility. In June 1999, the
Company and the City of Chicago reached a settlement agreement in principle
where the City of Chicago agreed to pay the Company $320,000 which represents in
part a reimbursement of costs incurred in bringing the suit.
ITEM 2 - CHANGES IN SECURITIES
None
ITEM 3 - DEFAULTS UPON SENIOR DEBT
None
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company's 1999 Annual Meeting of the Stockholders was held on June
18, 1999. At the meeting, the Stockholders elected Alan S. McKim and John F.
Kaslow to serve as directors of the Company for a three-year term, until the
2002 Annual Meeting of Stockholders. Other directors whose term of office as
director continued after the meeting were: Christy W. Bell, Daniel J. McCarthy,
John T. Preston and Lorne R. Waxlax.
ITEM 5 - OTHER INFORMATION
None
(25)
<PAGE>
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION LOCATION
<S> <C> <C>
4.13 Seventh Amendment to Financial Agreements Filed
dated May 24, 1999 by and between Congress herewith
Financial Corporation (New England), the
Company's Subsidiaries as Borrowers and
Clean Harbors, Inc. as guarantor.
4.14 Second Amendment and Restated Term Filed
Promissory Notes dated May 24, 1999 by and herewith
between Congress Financial Corporation (New
England), the Company's Subsidiaries as
Borrowers and Clean Harbors, Inc. as guarantor.
27 Financial Data Schedule Filed
herewith
Reports on Form 8-K None
</TABLE>
(26)
<PAGE>
CLEAN HARBORS, INC. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Clean Harbors, Inc.
-------------------------
Registrant
Dated: August 12, 1999 By: /s/ Alan S. McKim
--------------------------------------
Alan S. McKim
President and
Chief Executive Officer
Dated: August 12, 1999 By: /s/ Roger A. Koenecke
-------------------------------------
Roger A. Koenecke
Senior Vice President and
Chief Financial Officer
(27)
<PAGE>
EXHIBIT 4.13
May 24, 1999
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
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.
MR. FRANK, INC.
SPRING GROVE RESOURCE RECOVERY, INC.
HARBOR MANAGEMENT CONSULTANTS, INC.
Re: SEVENTH AMENDMENT TO FINANCING AGREEMENTS ("SEVENTH 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. This Agreement is referred to as the "Seventh Amendment".
Borrowers have requested that the Lender consent to the acquisition by CHES
of certain of the assets (as hereinafter defined, the "Acquisition Assets") of
the Texas Transportation and Brokerage Division (the "Division") of American
Ecological Services Corporation ("AESC") and of American Ecology Environmental
Services Corporation ("AEESC"). In addition, Borrowers have requested that
Lender agree to readvance, to the original principal amount of $6,000,000 on the
Term Loan and to an extension of the term of the Financing Agreements to May 8,
2001. Subject to the terms and conditions hereof and effective on the Seventh
Amendment Effective Date (as defined herein), the Lender agrees with the
Borrowers as follows:
(1) Subject to the conditions, representations, acknowledgements and
affirmations set forth in this Seventh Amendment, Lender hereby consents to the
<PAGE>
May 24, 1999
Page 2
acquisition of the Acquisition Assets (as defined in the Purchase Agreement, as
hereinafter defined) from AESC and AEESC (the "Acquisition"), pursuant to the
Asset Purchase Agreement dated May 24, 1999 among CHES and AESC and AEESC in the
form delivered to Lender prior to the date hereof (the "Purchase Agreement"),
and waives Section 9.10 of the Loan Agreement with respect to the Acquisition,
PROVIDED that the aggregate purchase price of the Acquisition does not exceed
$1,900,000 of which a portion is to be paid by the cancellation of certain
Accounts due from certain affiliates of AESC and AEESC to CHES. Lender's consent
given herein is limited strictly to its terms and shall apply only to the
specific provisions described herein. The consent contained herein shall not
extend to or affect any other Obligations of the Borrowers or the Obligors and
shall not impair or prejudice any rights consequent thereon.
(2) Section 2.3 of the Loan Agreement is deleted and replaced with the
following:
2.3 TERM LOAN. On the Seventh Amendment Effective Date (as defined in
the Seventh Amendment), Lender is making a Term Loan to Borrowers in
the original principal amount of $6,000,000. This Term Loan includes
the outstanding amount of the original Term Loan made on May 8, 1995
(as increased to $15,000,000 on March 20, 1996) with the excess
proceeds to be used to pay to AESC and AEESC the purchase price of the
Acquisition and for working capital of the Borrowers. The Term Loan is
(a) evidenced by a Second Amended and Restated Term Note (the "Term
Promissory Note") in such original principal amount duly executed and
delivered by the Borrowers to Lender concurrently with the Seventh
Amendment; (b) to be repaid, together with interest and other amounts,
in accordance with this Agreement, the Term Promissory Note, and other
Financing Agreements; and (c) secured by all of the Collateral. This
Term Promissory Note amends and restates the Term Promissory Note
dated May 8, 1995 in the original principal amount of $10,000,000, as
such Term Promissory Note was previously amended and restated by the
Amended and Restated Term Promissory Note, dated March 20, 1996 in the
original principal amount of $15,000,000."
(3) 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 six
(6) years from the date hereof (the "Renewal Date"),
<PAGE>
May 24, 1999
Page 3
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 seven (7) years from the date hereof by
giving Borrowers notice at least one hundred twenty (120) days prior
to the sixth anniversary of this Agreement."
(4) 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, Borrowers
agree 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, 2001. Such early termination fee shall be
presumed to be the amount of damages sustained by Lender as a result
of such early termination and Borrowers agree 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."
(5) This Seventh Amendment and the Lender's obligations hereunder shall not
be effective until each of the following conditions are satisfied (the "Seventh
Amendment Effective Date"):
(a) Borrowers shall have duly executed and delivered this Seventh
Amendment, the Term Promissory Note, the Deeds of Trust for the Real Property
acquired in connection with the Acquisition, the UCC Financing Statements
required by Lender in connection with the Acquisition, the Amended and Restated
Information Certificate for CHES and all other instruments, documents and
agreements required by Lender.
(b) all requisite corporate action and proceedings of the Borrowers in
connection with this Seventh Amendment shall be satisfactory in form and
substance to Lender and Lender shall receive certified copies of such corporate
action and proceedings and a legal opinion of counsel to the Borrowers as to the
due authorization and enforceability of this Amendment and the Financing
Agreements entered into pursuant hereto;
<PAGE>
May 24, 1999
Page 4
(c) no material adverse change shall have occurred in the assets
(including the Acquisition 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;
(d) Borrowers shall pay to Lender, and hereby direct Lender to debit
their 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;
(e) Lender shall have received, in form and substance satisfactory to
Lender, evidence that the Purchase Agreement and all instruments, documents and
agreements entered into pursuant thereto or relating thereto (the "Purchase
Agreements") have been duly executed and delivered by and to the appropriate
parties thereto and the transactions contemplated under the terms of the
Purchase Agreements have been consummated prior to or contemporaneously with the
execution of the Seventh Amendment;
(f) Lender shall have received evidence, in form and substance
satisfactory to Lender, that Lender has valid and perfected first priority
security interests in and liens upon all of the Acquisition Assets, subject only
to security interests and liens permitted under the Agreement and other Loan
Documents;
(g) Lender shall have received, in form and substance satisfactory to
Lender, valid and effective title policies issued by companies and agents
acceptable to Lender for each parcel of Real Property acquired pursuant to the
Purchase Agreements (i) insuring the priority, amount and sufficiency of the
Lender's Deeds of Trust, (ii) insuring all matters that would be disclosed by
surveys and (iii) containing any legally available endorsements, assurances or
affirmatives coverages requested by Lender for the protection of its interests;
(h) Lender shall have received (or received evidence satisfactory to
Lender of arrangements for the future delivery to Lender on or before either (A)
June 7, 1999 in the case of all motor vehicles and rolling stock described below
in this clause (h) except for those listed on Exhibit B-4 attached hereto, or
(B) August 7, 1999 in the case of those listed on such Exhibit B-4) the original
certificates of title for all motor vehicles and other rolling stock acquired as
part of the Acquisition of the Division together with duly executed and
completed applications and other documents required to effect Lender's lien
thereon; and
(i) Lender shall have received agreements, in form and substance
<PAGE>
May 24, 1999
Page 5
satisfactory to Lender, from landlords and other parties in possession of Real
Property leased or used by the Division and included within the Acquisition
Assets which agreements shall provide, among other things, that such landlord or
other party (i) waives and relinquishes all liens, claims and rights of
distraint in the Collateral, (ii) agrees not to interfere with Lender's exercise
of its rights in the Collateral and (iii) grants to Lender access to and the
right to remain on any real property to realize on and liquidate the Collateral.
(5) Each Borrower represents and warrants to Lender the following:
(a) The Purchase Agreements and the transactions contemplated
thereunder have been duly executed, delivered and performed in accordance with
their terms by the respective parties thereto in all respects, including the
fulfillment (not merely the waiver, except as may be disclosed to Lender and
consented to in writing by Lender) of all conditions precedent set forth therein
and giving effect to the terms of the Purchase Agreements and the assignments to
be executed and delivered by AESC and AEESC (or any of their affiliates or
subsidiaries) thereunder, CHES acquired and has good and marketable title to the
Acquisition Assets, free and clear of all claims, liens, pledges and
encumbrances of any kind, except as permitted hereunder;
(b) All actions and proceedings required by the Purchase Agreements or
applicable law or regulation (including, but not limited to, compliance with the
Hart-Scott-Rodino Anti-Trust Improvements Act of 1976, as amended) have been
taken and the transactions required thereunder have been duly and validly taken
and consummated;
(c) No court of competent jurisdiction has issued any injunction,
restraining order or other order which prohibits consummation of the
transactions described in the Purchase Agreements and no governmental or other
action or proceeding has been threatened or commenced, seeking any injunction,
restraining order or other order which seeks to void or otherwise modify the
transactions described in the Purchase Agreements; and
(d) Borrowers have delivered, or caused to be delivered, to Lender,
true, correct and complete copies of the Purchase Agreements.
(7) 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
<PAGE>
May 24, 1999
Page 6
timely payment of all Obligations.
(8) Each Obligor, 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 Obligor's liability to Lender with respect to the
payment and other performance obligations of the Obligors pursuant to the
Guarantees, dated May 8, 1995 executed for the benefit of Lender. Each Obligor
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 Obligor has no defenses, counterclaims or
setoffs with respect to full, complete and timely payment of any and all
Obligations.
(9) 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.
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/ Marc E. Swartz
------------------------------------
Name: MARC E. SWARTZ
Title: SR. VICE PRESIDENT
<PAGE>
May 24, 1999
Page 7
AGREED:
CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
CLEAN HARBORS KINGSTON FACILITY
CORPORATION
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
CLEAN HARBORS OF BRAINTREE, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
CLEAN HARBORS SERVICES, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
CLEAN HARBORS OF NATICK, INC.
By: /s/ Stephen Moynihan
--------------------
<PAGE>
May 24, 1999
Page 8
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
CLEAN HARBORS OF CONNECTICUT, INC.
By: /s/ STEPHEN MOYNIHAN
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
<PAGE>
May 24, 1999
Page 8
MURPHY'S WASTE OIL SERVICE, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
MR. FRANK, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
SPRING GROVE RESOURCE RECOVERY, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
HARBOR MANAGEMENT CONSULTANTS, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
OBLIGORS:
CLEAN HARBORS, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
<PAGE>
May 24, 1999
Page 9
CLEAN HARBORS OF BALTIMORE, INC.
By: /s/ Stephen Moynihan
--------------------
Name: STEPHEN MOYNIHAN
Title: SENIOR VICE PRESIDENT
<PAGE>
EXHIBIT 4.14
SECOND AMENDED AND RESTATED
TERM PROMISSORY NOTE
$6,000,000.00 Boston, Massachusetts
May 24, 1999
FOR VALUE RECEIVED, the undersigned, (collectively, the "Debtors"), hereby
unconditionally and jointly and severally 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,
Massachusetts 02109, or at such other place as the Payee or any holder hereof
may from time to time designate, the principal sum of SIX MILLION DOLLARS
($6,000,000.00) 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 June
1, 1999 of which the first fifty-nine (59) installments shall each be in the
amount of ONE HUNDRED THOUSAND DOLLARS ($100,000), and the last installment
shall be in the amount of the entire unpaid balance of this Note.
Each Debtor hereby further promises jointly and severally 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 June 1, 1999 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 First Union National Bank, or its successors, 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
-1-
<PAGE>
d) The term "Loan Agreement" shall mean the Loan and Security Agreement,
dated May 8, 1995, as amended, between Debtors and Payee, as the same now exists
or may hereafter be amended, 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 is announced. The increase or decrease shall be
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 Debtors'
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
-2-
<PAGE>
indulgence, without notice or consent. The pleading of any statute of
limitations as a defense to any demand against 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.
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 Debtors 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 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 any 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
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 to it 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 Debtor 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 Debtor
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 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
-4-
<PAGE>
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY.
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 Debtors.
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, restates and supercedes that certain Amended and Restated
Term Promissory Note, dated March 20, 1996, of the Debtors in the original
principal amount of $15,000,000.
ATTEST: CLEAN HARBORS ENVIRONMENTAL
SERVICES, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: CLEAN HARBORS KINGSTON FACILITY
CORPORATION
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: CLEAN HARBORS OF BRAINTREE, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
-4-
<PAGE>
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: CLEAN HARBORS SERVICES, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: CLEAN HARBORS OF NATICK, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: CLEAN HARBORS OF CONNECTICUT, INC.
/s/ C. Michael MalM By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: MURPHY'S WASTE OIL SERVICE, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST: MR. FRANK, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
-5-
<PAGE>
ATTEST: SPRING GROVE RESOURCE RECOVERY, INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
ATTEST HARBOR MANAGEMENT CONSULTANTS INC.
/s/ C. Michael Malm By: /s/ Stephen Moynihan
- ------------------------- -------------------------------
Secretary
[Corporate Seal] Title: SENIOR VICE PRESIDENT
-6-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<CIK> 0000822818
<NAME> CLEAN HARBORS
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 3,500
<SECURITIES> 1,148
<RECEIVABLES> 42,688
<ALLOWANCES> 1,258
<INVENTORY> 2,796
<CURRENT-ASSETS> 51,320
<PP&E> 134,646
<DEPRECIATION> 76,901
<TOTAL-ASSETS> 146,191
<CURRENT-LIABILITIES> 35,978
<BONDS> 74,545
0
1
<COMMON> 106
<OTHER-SE> 146,084
<TOTAL-LIABILITY-AND-EQUITY> 146,191
<SALES> 0
<TOTAL-REVENUES> 95,766
<CGS> 0
<TOTAL-COSTS> 70,907
<OTHER-EXPENSES> 17,748
<LOSS-PROVISION> 342
<INTEREST-EXPENSE> 4,429
<INCOME-PRETAX> (1,957)
<INCOME-TAX> 180
<INCOME-CONTINUING> (2,137)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,137)
<EPS-BASIC> (0.22)
<EPS-DILUTED> (0.22)
</TABLE>
