SECOND AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AND
SECOND AMENDMENT TO
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT AND SECOND AMENDMENT TO AMENDED AND RESTATED STOCK PLEDGE
AGREEMENT (this "Second Amendment") is made and entered into as of May 30,
1997, by and among (a) SUPERIOR SERVICES, INC., a Wisconsin corporation
(the "Parent"), the subsidiaries of the Parent identified on Schedule 1 to
the Credit Agreement defined below (the "Subsidiaries" and collectively
with the Parent, the "Borrowers"), (b) BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON, a national banking association having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 ("BKB"), LASALLE NATIONAL BANK, a national banking association
having its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, BANK ONE, WISCONSIN, a Wisconsin banking
association having its principal place of business at 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, BANK OF AMERICA ILLINOIS, an Illinois
banking association having its principal place of business at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and the other lending
institutions which become parties to the Credit Agreement (collectively,
the "Banks"), and (c) BKB, as agent for the Banks (the "Agent").
WHEREAS, the Borrowers, the Banks and the Agent are parties to an
Amended and Restated Revolving Credit Agreement dated as of March 26, 1997
and amended by a First Amendment to Amended and Restated Revolving Credit
Agreement and First Amendment to Amended and Restated Stock Pledge
Agreement dated as of April 21, 1997 (as further amended and in effect
from time to time, the "Credit Agreement"), pursuant to which the Banks
have extended credit to the Borrowers on the terms set forth therein;
WHEREAS, the Borrowers have informed the Banks that Superior of Ohio,
an Ohio corporation and a Subsidiary of the Parent ("Superior of Ohio") is
acquiring substantially all of the assets of the Companies (defined below)
for a total purchase price of approximately $5,000,000 (the "Asset
Purchase");
WHEREAS, the Borrowers have informed the Banks that the Parent is
entering into an agreement to acquire all of the capital stock of Noble
Road Landfill, Inc., an Ohio corporation ("Noble") from Xxxxx X. Xxxxxxxx,
an individual residing in the State of Ohio ("Xxxxxxxx"), for a total
purchase price of approximately $20,000,000 plus the additional share
purchase price as set forth in Article 2.5 of the Purchase Agreement,
defined below (the "Stock Purchase");
WHEREAS, the Asset Purchase and the Stock Purchase (the
"Acquisitions") are to be consummated substantially in accordance with the
terms set forth in the draft Purchase Agreement and Plan of Reorganization
dated as of May 14, 1997 among Xxxxxxxx Waste Management, Inc., Gem
Leasing, Inc., North Central Management, Inc., Xxxxxxxx Paper Recycling,
Inc., and Richland County Transfer & Recycling, Inc., each an Ohio
corporation (the "Companies"), Xxxxxxxx, the Parent, and Superior of Ohio
(the "Purchase Agreement");
WHEREAS, until the gate opening of the Noble Landfill (defined
below), which is anticipated to occur in approximately September or
October 1997 and which is a condition precedent to the final exchange of
cash consideration in connection with the Stock Purchase (the "Final
Exchange"), the Parent wishes to advance a loan of up to $4,000,000 to
Noble (the "Noble Loan") pursuant to the construction loan agreement dated
as of June 1, 1997 among the Parent and Noble (the "Noble Loan Agreement")
for the construction of a landfill located in Richland County, Ohio (the
"Noble Landfill");
WHEREAS, the Parent has agreed to assign the fixed-rate promissory
note payable by Noble to the Parent under the Noble Loan Agreement, and
the Parent's security interests in the open-end mortgage granted by Noble
to secure the Noble Loan, to the Agent for the benefit of the Banks (the
"Assignments");
WHEREAS, the Borrowers have requested that the Banks consent to the
Acquisitions and the Noble Loan, and the Banks are willing to consent
thereto on the terms set forth herein;
WHEREAS, the Banks, the Agent, and the Borrowers have further agreed
to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendment to Section 7.4 of the Credit Agreement. The second
sentence of Section 7.4 of the Credit Agreement is hereby amended by
deleting the first two words, "The Parent" and substituting "The
Borrowers" in place thereof.
3. Amendment to Section 7.1(g) of the Credit Agreement. Section
7.1(g) of the Credit Agreement is hereby amended to delete the amount,
"$10,000,000" and to substitute the amount "$3,000,000" in place thereof.
4. Amendment to Section 7.2 of the Credit Agreement.
(a) Section 7.2(a) of the Credit Agreement is hereby amended to
delete the amount, "$10,000,000" and to substitute the amount "$3,000,000"
in place thereof.
(b) Section 7.2 of the Credit Agreement is hereby amended by adding
the following subsection (j) to the end thereof:
"(j) A first mortgage granted to Xxxxx X. Xxxxxxxx, an
individual residing in the State of Ohio ("Xxxxxxxx"), securing the
Parent's obligation to pay royalties pursuant to Article 2.5 of the draft
Purchase Agreement and Plan of Reorganization dated as of May 14, 1997
among Xxxxxxxx Waste Management, Inc., Gem Leasing, Inc., North Central
Management, Inc., Xxxxxxxx Paper Recycling, Inc., and Richland County
Transfer & Recycling, Inc., each an Ohio corporation, Xxxxxxxx, the
Parent, and Superior of Ohio, an Ohio corporation and a Subsidiary of the
Parent."
5. Consent. Each of the Banks hereby consents to the Acquisitions
and the Noble Loan, provided that:
(a) the total aggregate purchase price paid by the Borrowers in
connection with the Asset Purchase shall not exceed $5,000,000 cash plus
(i) the liabilities assumed as set forth in Article 1.4 of the Purchase
Agreement, plus (ii) the invoice price paid by the Companies for capital
assets acquired after December 31, 1996, minus (iii) the long-term
liabilities of the Companies as set forth in Article 2.1 of the Purchase
Agreement;
(b) the total aggregate purchase price paid by the Borrowers in
connection with the Stock Purchase shall not exceed $20,000,000 (of which
$13,750,000 may be cash) minus (i) the long-term liabilities of Noble as
set forth in Article 2.2 of the Purchase Agreement plus (ii) the
additional share purchase price as set forth in Article 2.5 of the
Purchase Agreement; and
(c) contemporaneously with the closing of the Stock Purchase and the
acquisition by the Parent of all the capital stock of Noble in connection
therewith, the Borrowers and Noble shall execute an amendment to the
Credit Agreement and the Stock Pledge Agreement, and an allonge to each of
the Notes, adding Noble as a Borrower, each in form and substance
satisfactory to the Agent.
6. Ratification, etc. The Credit Agreement, the other Loan
Documents and all documents, instruments and agreements related thereto
are hereby ratified and confirmed in all respects and shall continue in
full force and effect. This Second Amendment and the Credit Agreement
shall hereafter be read and construed together as a single document, and
all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit
Agreement as amended by this Second Amendment. This Second Amendment and
the Stock Pledge Agreement shall hereafter be read and construed together
as a single document, and all references in the Stock Pledge Agreement or
any related agreement or instrument to the Stock Pledge Agreement shall
hereafter refer to the Stock Pledge Agreement as amended by this Second
Amendment.
7. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
8. Counterparts. This Second Amendment may be executed in any
number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which counterparts taken together shall be deemed to
constitute one and the same instrument.
9. Effectiveness. This Second Amendment shall become effective upon
the execution and delivery of this Second Amendment by the respective
parties hereto (the "Effective Date").
10. Representations. The Borrowers represent and warrant to the
Agent and the Banks that:
(a) at the time of the Acquisitions, no Default or Event of Default
has occurred and is continuing, and the Acquisitions will not otherwise
create a Default or an Event of Default under the Credit Agreement; and
(b) the Borrowers have delivered to the Agent all items required
under Section 7.4 of the Credit Agreement.
11. Covenants.
11.1 Deliveries by Borrowers. The Borrowers agree to deliver,
no later than thirty (30) days after the Effective Date, each of the
following, in form and substance satisfactory to the Agent:
(a) duly executed Assignments;
(b) an opinion of counsel to the Borrowers as to the due
authorization and enforceability of the Assignments, and all other
matters as the Agent may reasonably request; and
(c) the results of UCC searches with respect to the Companies
and Noble indicating no liens other than Permitted Liens.
Failure to deliver each of such items on or before thirty (30) days
after the Effective Date shall constitute an Event of Default under the
Credit Agreement.
11.2 Repayment of Noble Loan. Contemporaneously with the Final
Exchange, the Noble Loan shall be repaid in full. No more than thirty
(30) days after the Final Exchange, the mortgage securing the Noble Loan
shall be released, and satisfactory evidence thereof shall be delivered to
the Agent.
12. Entire Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS AS AMENDED REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Second Amendment under seal as of the date first set forth above.
BANKBOSTON, N.A., f/k/a
THE FIRST NATIONAL BANK OF
BOSTON, individually and as Agent
By:______________________________
Xxxxxxx X. Xxxxxxx
Vice President
LASALLE NATIONAL BANK
By:______________________________
Xxxxxxx Xxxxxx
Senior Vice President
BANK ONE, WISCONSIN
By:______________________________
Xxxx X. Xxxxx
Vice President
BANK OF AMERICA ILLINOIS
By:______________________________
Xxxxxxx X. Xxxxxxxx
Senior Vice President
SUPERIOR SERVICES, INC.
SUPERIOR CRANBERRY CREEK LANDFILL, INC.
SUPERIOR CONSTRUCTION SERVICES, INC.
HARDROCK, INC.
SUMMIT, INC.
SUPERIOR SPECIAL SERVICES, INC.
VALLEY SANITATION CO., INC.
SUPERIOR SERVICES OF ELGIN, INC.
SUPERIOR GLACIER RIDGE, INC.
LAND & GAS RECLAMATION, INC.
SUPERIOR OF WISCONSIN, INC.
SUPERIOR EMERALD PARK LANDFILL, INC.
SUPERIOR FCR LANDFILL, INC.
SUPERIOR SEVEN MILE CREEK LANDFILL, INC.
SUPERIOR OAK RIDGE LANDFILL, INC.
SUPERIOR OF MISSOURI, INC.
SUPERIOR OF OHIO, INC.
SUPERIOR SERVICES OF MICHIGAN, INC.
SUPERIOR WASTE SERVICES OF PENNSYLVANIA, INC.
HOMESTAND LAND CORP.
M&N DISPOSAL, INC.
By:______________________________
Xxxxxx X. Xxxx, Treasurer
