FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AND
FIRST AMENDMENT TO
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT AND FIRST AMENDMENT TO AMENDED AND RESTATED STOCK PLEDGE
AGREEMENT (this "First Amendment") is made and entered into as of
April 21, 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) THE FIRST NATIONAL
BANK OF BOSTON ("FNBB"), a national banking association having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, LASALLE NATIONAL BANK, a national banking association having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, BANK ONE, WISCONSIN, a Wisconsin banking association having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, BANK OF AMERICA ILLINOIS, an Illinois banking association
having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the other lending institutions which become
parties to the Credit Agreement (collectively, the "Banks"), and (c) THE
FIRST NATIONAL BANK OF BOSTON, 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
(as 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 the Parent and
certain Subsidiaries are acquiring certain businesses as follows:
(a) Superior Waste Services of Pennsylvania, Inc., a Pennsylvania
corporation and a Subsidiary of the Parent ("Superior of Pennsylvania"),
is acquiring substantially all of the assets of the business referred to
as the ▇▇▇▇▇▇ District #703 (the "▇▇▇▇▇▇ Asset Purchase") and the Parent
is acquiring all of the capital stock of Homestand Land Corp., a
Pennsylvania corporation (the "Homestand Stock Purchase") for an aggregate
purchase price of approximately $27,800,000;
(b) Superior of Ohio, Inc., an Ohio corporation and a Subsidiary of
the Parent ("Superior of Ohio"), is acquiring substantially all of the
assets of the business referred to as the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇ for a
total purchase price of approximately $11,000,000 (the "Columbus Asset
Purchase");
(c) (i) Superior of Wisconsin, Inc., a Wisconsin corporation and a
Subsidiary of the Parent ("Superior of Wisconsin"), is acquiring
substantially all of the assets of the business referred to as the Green
Bay District #814 (the "Green Bay Asset Purchase") and substantially all
of the assets of M&N Recycling, Inc., a Wisconsin corporation (the "M&N
Asset Purchase" and collectively with the ▇▇▇▇▇▇ Asset Purchase, the
Columbus Asset Purchase, and the Green Bay Asset Purchase, the "Asset
Purchases"), and (ii) the Parent is acquiring all of the capital stock of
M&N Disposal, Inc., a Wisconsin corporation (the "M&N Stock Purchase," and
collectively with the Homestand Stock Purchase, the "Stock Purchases"),
for an aggregate purchase price of approximately $18,500,000;
WHEREAS, the Asset Purchases and the Stock Purchases (the
"Acquisitions") are to be consummated substantially in accordance with the
terms set forth in the Purchase and Sale Agreement dated as of April 11,
1997 among ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc., a Delaware corporation
("BFI"), ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Wisconsin, Inc., a Wisconsin
corporation and a wholly-owned subsidiary of BFI, M&N Recycling, Inc., a
Wisconsin corporation and a wholly-owned subsidiary of BFI, BFI Waste
Systems of Ohio, Inc., a Delaware corporation and a wholly-owned
subsidiary of BFI, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Pennsylvania, Inc., a
Delaware corporation and a wholly-owned subsidiary of BFI, the Parent,
Superior of Wisconsin, Superior of Ohio, and Superior of Pennsylvania (the
"Purchase Agreement");
WHEREAS, the Borrowers have requested that the Banks consent to the
Acquisitions, and the Banks are willing to consent to the Acquisitions 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 Schedule 1 of the Credit Agreement. Schedule 1 to
the Credit Agreement is hereby amended to add Homestand Land Corp., a
Pennsylvania corporation ("Homestand") and M&N Disposal, Inc., a Wisconsin
corporation ("M&N," and together with Homestand, the "New Borrowers") each
as a Subsidiary of the Parent and as a Borrower. An amended and restated
Schedule 1 is attached hereto. The Borrowers represent and warrant that,
except as set forth therein, the entities listed on Schedule 1 are all of
the Subsidiaries of the Parent, each of which is a Borrower.
3. Amendment to Stock Pledge Agreement. The Parent hereby pledges
100% of the stock of each of the New Borrowers to the Agent for the
benefit of the Banks, and the New Borrowers hereby agree to be bound by
the provisions of Section 4.1, 6, and 7 of the Stock Pledge Agreement. An
amended and restated Annex A to the Stock Pledge Agreement is attached
hereto.
4. Consent to Acquisitions. Each of the Banks hereby consents to
the Acquisitions, provided that the total aggregate purchase price paid by
the Borrowers in connection therewith shall not exceed $57,300,000 plus
(a) liabilities assumed as set forth in Article 2.1 of the Purchase
Agreement, plus (b) deferred payments of approximately $2,000,000 as set
forth in Article 3.3 of the Purchase Agreement, plus or minus, as
applicable, (c) adjustments to the purchase price as set forth in
Articles 3.4 and 3.6 of the Purchase Agreement.
5. 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 First 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 First Amendment. This First 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 First
Amendment.
6. GOVERNING LAW. THIS FIRST 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.
7. Counterparts. This First 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.
8. Effectiveness. This First Amendment shall become effective upon
the satisfaction of each of the following conditions (the "Effective
Date"):
(a) This First Amendment shall have been executed and delivered by
the respective parties hereto; and
(b) Each of the Banks shall have received an executed allonge to
such Bank's Note, in form and substance satisfactory to such Bank, adding
each of Homestand and M&N as a Borrower.
9. Representations.
9.1 Asset Purchases. The Borrowers represent and warrant to
the Agent and the Banks that they intend to operate:
(a) the business acquired pursuant to the ▇▇▇▇▇▇ Asset Purchase
as a division of Superior of Pennsylvania under the name, "Superior
Services-▇▇▇▇▇▇, a division of Superior Waste Services of Pennsylvania,
Inc."
(b) the business acquired pursuant to the Columbus Asset
Purchase as a division of Superior of Ohio under the name, "Superior
Services-Columbus, a division of Superior of Ohio, Inc."
(c) the businesses acquired pursuant to the Green Bay Asset
Purchase and the M&N Asset Purchase as a division of Superior of Wisconsin
under the name, "Superior Services-Green Bay, a division of Superior of
Wisconsin, Inc."
9.2 No Event of Default. The Borrowers represent and warrant
to the Agent and the Banks that 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.
9.3 Waiver. The Borrower has delivered to the Agent all items
required under Section 7.4 of the Credit Agreement, with the exception of
the appraisal required pursuant to clause (h) thereof, which requirement
is hereby waived by each of the Banks and the Agent.
10. Covenant Regarding New 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) a certificate of the Secretary or Assistant Secretary of
each New Borrower regarding the incumbency of the officers of each
such Borrower and a copy, certified by a duly authorized officer of
such Person to be true and complete on the date hereof, of such
Borrower's (i) charter or other incorporation documents and by-laws
as in effect on such date of certification, and (ii) the resolutions
of each such Borrower's Board of Directors authorizing the execution
and delivery of this First Amendment, the allonges to the Notes, and
all related documents;
(b) an opinion of counsel to the Borrowers as to the due
authorization and enforceability of this First Amendment as it
relates to the New Borrowers, the allonges to the Notes to be issued
to the Banks pursuant to Section 8(b) hereof, the due organization,
legal existence, and good standing of the New Borrowers and all other
matters as the Agent may reasonably request;
(c) the stock certificates evidencing all of the issued and
outstanding shares of capital stock of each of the New Borrowers
together with stock powers thereto duly executed in blank; and
(d) the results of UCC searches with respect to the New
Borrowers 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.
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
First Amendment under seal as of the date first set forth above.
THE FIRST NATIONAL BANK OF
BOSTON, individually and as Agent
By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
LASALLE NATIONAL BANK
By:_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
BANK ONE, WISCONSIN
By:_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
BANK OF AMERICA ILLINOIS
By:_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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.
By:_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
HOMESTAND LAND CORP.
By:_________________________________
Name:
Title:
M&N DISPOSAL, INC.
By:_________________________________
Name:
Title:
SCHEDULE 1
SUBSIDIARIES (1)
Number of Number of
Jurisdiction of Authorized Outstanding
Issuer Incorporation Shares Shares
Superior Cranberry Creek
Landfill, Inc. Wisconsin 9,000 100
Superior Construction
Services, Inc. Wisconsin 9,000 508
Hardrock, Inc. Wisconsin 9,000 1,000
Summit, Inc. Wisconsin 9,000 1,000
Superior Special Services,
Inc. Wisconsin 9,000 1,000
Valley Sanitation Co., Inc. Wisconsin 9,000 100
Superior Services of Elgin,
Inc. Illinois 9,000 480
Superior Glacier Ridge, Inc. Wisconsin 9,000 1,000
Land & Gas Reclamation, Inc. Wisconsin 9,000 500
Superior of Wisconsin, Inc. Wisconsin 9,000 100
Superior Emerald Park
Landfill, Inc. Wisconsin 9,000 100
Superior FCR Landfill, Inc. Minnesota 9,000 1,800
Superior Seven Mile Creek
Landfill, Inc. Wisconsin 9,000 1,000
Superior Oak Ridge Landfill,
Inc. Missouri 9,000 4
Superior of Missouri, Inc. Missouri 9,000 4
Superior of Ohio, Inc. Ohio 850 100
Superior Services of
Michigan, Inc. Michigan 60,000 1,000
Superior Waste Services of
Pennsylvania, Inc. Pennsylvania 9,000 100
Homestand Land Corp. Pennsylvania 100 100
M&N Disposal, Inc. Wisconsin 1,000 1,000
_______________
(1) Sharps Incinerator of Fort, Inc. ("Sharps") is a Subsidiary of the
Parent, but is not a Borrower under the Credit Agreement. The only
remaining assets of Sharps are an ABB microwave unit, an incinerator unit,
approximately $1,300 in cash, and nominal accounts receivable.
ANNEX A TO PLEDGE AGREEMENT
None of the issuers has any authorized, issued or outstanding shares
of its capital stock of any class or any commitments to issue any shares
of its capital stock of any class or any securities convertible into or
exchangeable for any shares of its capital stock of any class except as
otherwise stated in this Annex A.
Number Number Par or
Class Number of of of Out- Liquid-
Record of Authorized Issued standing ation
Issuer Owner Shares Shares Shares Shares Value
Superior
Cranberry
Creek
Landfill,
Inc. Parent Common 9,000 100 100 .10
Superior
Construction
Services,
Inc. Parent Common 9,000 508 508 .10
Hardrock,
Inc. Parent Common 9,000 1,000 1,000 .10
Summit, Inc. Parent Common 9,000 1,000 1,000 .10
Superior
Special
Services,
Inc. Parent Common 9,000 1,000 1,000 .10
Valley
Sanitation
Co., Inc. Parent Common 9,000 100 100 .10
Superior
Services of
Elgin, Inc. Parent Common 9,000 480 480 .10
Superior
Glacier
Ridge, Inc. Parent Common 9,000 1,000 1,000 .10
Land & Gas
Reclamation,
Inc. Parent Common 9,000 500 500 .10
Superior of
Wisconsin,
Inc. Parent Common 9,000 100 100 .10
Superior
Emerald Park
Landfill,
Inc. Parent Common 9,000 100 100 .10
Superior FCR
Landfill,
Inc. Parent Common 9,000 1,800 1,800 .10
Superior
Seven Mile
Creek
Landfill,
Inc. Parent Common 9,000 1,000 1,000 .10
Superior Oak
Ridge
Landfill,
Inc. Parent Common 9,000 4 4 .10
Superior of
Missouri,
Inc. Parent Common 9,000 4 4 .10
Superior of
Ohio, Inc. Parent Common 850 100 100 None
Superior
Services of
Michigan,
Inc. Parent Common 60,000 1,000 1,000 None
Superior Waste
Services of
Pennsylvania,
Inc. Parent Common 9,000 100 100 .10
Homestand
Land Corp. Parent Common 100 100 100 None
M&N Disposal,
Inc. Parent Common 1,000 1,000 1,000 None
April 21, 1997
Allonge to $40,000,000 Amended and Restated Revolving Credit Note dated as
of March 26, 1997 (the "Note") issued by Superior Services, Inc. and the
other entities signatory thereto and payable to the order of The First
National Bank of Boston.
Each of the undersigned, intending to be legally bound as a Borrower
under the Note, has caused this Allonge to the Note to be signed in its
corporate name under seal by its duly authorized officer.
HOMESTAND LAND CORP.
By:______________________________
Name:
Title:
M&N DISPOSAL, INC.
By:______________________________
Name:
Title:
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ to $25,000,000 Amended and Restated Revolving Credit Note dated as
of March 26, 1997 (the "Note") issued by Superior Services, Inc. and the
other entities signatory thereto and payable to the order of LaSalle
National Bank.
Each of the undersigned, intending to be legally bound as a Borrower
under the Note, has caused this Allonge to the Note to be signed in its
corporate name under seal by its duly authorized officer.
HOMESTAND LAND CORP.
By:______________________________
Name:
Title:
M&N DISPOSAL, INC.
By:______________________________
Name:
Title:
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ to $25,000,000 Amended and Restated Revolving Credit Note dated as
of March 26, 1997 (the "Note") issued by Superior Services, Inc. and the
other entities signatory thereto and payable to the order of Bank One,
Wisconsin.
Each of the undersigned, intending to be legally bound as a Borrower
under the Note, has caused this Allonge to the Note to be signed in its
corporate name under seal by its duly authorized officer.
HOMESTAND LAND CORP.
By:______________________________
Name:
Title:
M&N DISPOSAL, INC.
By:______________________________
Name:
Title:
▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ to $20,000,000 Amended and Restated Revolving Credit Note dated as
of March 26, 1997 (the "Note") issued by Superior Services, Inc. and the
other entities signatory thereto and payable to the order of Bank of
America Illinois.
Each of the undersigned, intending to be legally bound as a Borrower
under the Note, has caused this Allonge to the Note to be signed in its
corporate name under seal by its duly authorized officer.
HOMESTAND LAND CORP.
By:______________________________
Name:
Title:
M&N DISPOSAL, INC.
By:______________________________
Name:
Title:
