FIRST AMENDMENT TO ACQUISITION AGREEMENT
WHEREAS, Safety-Kleen Services, Inc. (the "Seller") and Clean Harbors,
Inc. (the "Purchaser"), are parties to an Acquisition Agreement dated as of
February 22, 2002 (the "Acquisition Agreement");
WHEREAS, the Seller and the Purchaser wish to amend certain provisions
of the Acquisition Agreement as set forth in this First Amendment to
Acquisition Agreement (this "Amendment");
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 5.2 of the Acquisition Agreement is hereby amended by
adding a new Section 5.2(k) which shall read as follows:
(k) Purchaser's Deposit. Provided that this Agreement shall
not by then have been terminated in accordance with its terms by either
the Seller or the Purchaser for any reason, the Purchaser shall on May
30, 2002 make a deposit (the "Purchaser's Deposit") in the form of a
certified check payable to the order of Lazard Freres & Co. LLC, as
agent for the Seller, or other immediately available funds, in the
amount of Three Million Dollars ($3,000,000). The Purchaser's Deposit
shall be held in an interest-bearing escrow account and, together with
interest thereon, shall be applied at the Closing against the
Unadjusted Cash Purchase Price if the Closing shall take place in
accordance with this Agreement. If the Closing shall not take place for
any reason other than a termination by the Seller in accordance with
Section 7.1(b), the Purchaser's Deposit, together with interest earned
thereon, shall be returned to the Purchaser within two days following
the earlier of either: (A) June 20, 2002 (or July 20, 2002 if such date
has been extended in accordance with Section 7.1(g)) if by such date
(or such extended date) the Bankruptcy Court shall not have entered the
Section 363/365 Order in favor of the Purchaser, (B) the date on which
this Agreement is terminated for any reason by either the Seller or the
Purchaser in accordance with this Agreement (other than a termination
by the Seller in accordance with Section 7.1(b)), or (C) October 15,
2002, provided that the Purchaser is not then in material breach of
this Agreement after the Purchaser has received not less than 30 days
prior written notice from the Seller of such breach. If this Agreement
shall be terminated by the Seller in accordance with Section 7.1(b),
the Purchaser's Deposit, together with interest earned thereon, shall
promptly be delivered to the Seller and, notwithstanding any provision
of Section 7.2 to the contrary, the receipt by the Seller of the
Purchaser's Deposit shall constitute the Seller's sole remedy for (and
such amount shall constitute liquidated damages in respect of) any
breach by the Purchaser of this Agreement (other than a breach by the
Purchaser of its obligations pursuant to Section 8.8 and the
Confidentiality Agreement).
2. Section 7.1(d) of the Acquisition Agreement is hereby amended to
read as follows:
(d) by the Purchaser (provided that the Purchaser is not then
in material breach of any representation, warranty, covenant or other
agreement contained herein) at or prior to the Due Diligence Expiration
Date, if the Purchaser is not satisfied with its due diligence review
of the Business because such due diligence
review causes the Purchaser to determine in its reasonable
judgment that either (i) the Seller is then in material breach
of any representation, warranty, covenant or other agreement
of the Seller contained in this Agreement, (ii) the
Confidential Information Memorandum of the Business dated
September 2001 which was delivered to the Purchaser contains
either a material misrepresentation or omission with respect
to the Business, or (iii) a Material Adverse Effect has
occurred since the date of said Confidential Information
Memorandum.
3. Article XI of the Acquisition Agreement is hereby amended to
change the definition of "Due Diligence Expiration Date" to read as follows:
"Due Diligence Expiration Date" means the date which is the later of
(i) April 30, 2002, or (ii) at the option of the Purchaser, five (5) days after
the Purchaser's receipt of the audited Balance Sheet as of August 31, 2001."
4. Except as described in the preceding sections of this
Amendment, the Acquisition Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
under seal as of March 8, 2002.
SAFETY-KLEEN SERVICES, INC.
By:
----------------------------
Name:
Title:
CLEAN HARBORS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
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