Exhibit 99.2
AMENDMENT NUMBER TWO TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NUMBER TWO TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of September 30, 1996, is entered into among SOUTHDOWN, INC., a
Louisiana corporation ("Borrower"), banks and financial institutions that are
signatories to the Credit Agreement (collectively, "Banks", and individually, a
"Bank"), and XXXXX FARGO BANK, N.A., a national banking association, as agent
for Banks hereunder ("Agent").
WHEREAS, Borrower has requested that the Credit Agreement be modified to
permit the repurchase of Borrower Common Stock using proceeds from the exercise
of warrants pursuant to the terms of the Warrant Agreement and to make certain
other amendments; and
WHEREAS, subject to the terms and conditions contained herein, Banks are
willing to amend such provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and
provisions hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS FOR THIS AMENDMENT. Any and all initially capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement, as
amended hereby, unless specifically defined herein. For purposes of this
Amendment, the following initially capitalized terms shall have the following
meanings:
"AGENT" has the meaning set forth in the introduction to this Amendment.
"AMENDMENT" means and refers to this Amendment Number Two to Third Amended
and Restated Credit Agreement among Borrower, Banks parties hereto, and Agent.
"BANK" and "BANKS" have the respective meanings set forth in the
introduction to this Amendment.
"BORROWER" has the meaning set forth in the introduction to this Amendment.
"CREDIT AGREEMENT" means and refers to that certain Third Amended and
Restated Credit Agreement, dated as of November 3, 1995, among Borrower, Banks,
and Agent, as amended.
1.2 AMENDMENT OF SECTION 1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement hereby is amended by (a) adding the defined terms "Warrant
Agreement" and "Warrant Exercise Proceeds," as follows, and (b) deleting the
defined term "Permitted Junior Payments" in its entirety and by substituting
therefor the following defined term:
"PERMITTED JUNIOR PAYMENTS" means and refers to, so long as at each time
thereof, no Event of Default or Unmatured Event of Default has occurred and is
continuing and no such Event of Default or Unmatured Event of Default would
result therefrom, (a) the redemption, payment, repurchase, retirement for value,
or acquisition, in one or more transactions, in an aggregate amount (excluding
any consideration paid in the form of Borrower Common Stock) of up to the Junior
Payment Amount of (i) principal amount of the Senior Subordinated Notes, (ii)
Preferred Stock, (iii) Borrower Common Stock, or (iv) any combination of the
foregoing; PROVIDED, HOWEVER, that the redemption, payment, repurchase,
retirement for value, or acquisition of Borrower Common Stock shall constitute a
Permitted Junior Payment only (y) if, after giving effect to such proposed
redemption, payment, repurchase, retirement for value, or acquisition,
Borrower's Leverage Ratio (which will be calculated by utilizing the Funded Debt
extant as of the date of such redemption, payment, repurchase, retirement for
value, or acquisition after giving effect to the incurrence of any Funded Debt
incurred in connection with such transaction and by utilizing the Consolidated
EBITDA for the four (4) immediately preceding fiscal quarters) would be less
than or equal to 2.00:1.00; PROVIDED, HOWEVER, that Borrower may exclude from
the requirements of this CLAUSE (Y) any redemption, payment, repurchase,
retirement for value, or acquisition of Borrower Common Stock in an aggregate
amount not to exceed the amount of the Warrant Exercise Proceeds, and (z) up to
an aggregate amount equal to the sum of (i) Twenty Five Million Dollars
($25,000,000) and (ii) the Warrant Exercise Proceeds, (b) the incurrence of the
Exchange Subordinated Debt pursuant to SECTION 6.1(C), and (c) the conversion of
any Permitted Preferred Stock into, or the redemption or acquisition of any
Permitted Preferred Stock for, Borrower Common Stock and payments of immaterial
amounts in lieu of fractional shares in connection with any such conversion or
redemption; PROVIDED, HOWEVER, that if no Event of Default or Unmatured Event of
Default had occurred and was continuing on the date that Borrower gives notice
of redemption or otherwise commences any action preliminary to making a
Permitted Junior Payment, Borrower shall be entitled to make such Permitted
Junior Payment notwithstanding the occurrence or continuation of an Event of
Default or Unmatured Event of Default (other than an Event of Default or
Unmatured Event of Default under SECTION 7.1(A) hereof) as of the date such
Permitted Junior Payment is to be made.
"WARRANT AGREEMENT" means that certain Warrant Agreement, dated as of
October 31, 1991, originally between Borrower and First City, Texas-Houston,
N.A., as Warrant Agent.
"WARRANT EXERCISE PROCEEDS" means, in respect of the exercise of up to an
aggregate of 1,250,000 warrants (whether on, before, or after the date hereof)
pursuant to the Warrant Agreement, the amount of the cash proceeds received
by Borrower in connection therewith.
ARTICLE 2
CONDITIONS
2.1 CONDITIONS TO THE EFFECTIVENESS OF THIS AMENDMENT. The effectiveness of
this Amendment is subject to the fulfillment, to the satisfaction of Agent, of
each of the following conditions:
2.1.1 the Agent shall have received a certificate from a Secretary or
Assistant Secretary of Borrower attesting to the resolutions of Borrower's board
of directors authorizing the execution and delivery of this Amendment;
2.1.2 the Agent shall have received an executed counterpart of this
Amendment duly executed and delivered by Borrower and each of the Majority
Banks; and
2.1.3 the Agent shall have received a certificate from a Responsible
Officer certifying that:
(i) the representations and warranties of Borrower contained in the Credit
Agreement and the Loan Documents, to the extent that it is a party thereto, are
true and correct in all material respects at and as of the date of the
effectiveness of this Amendment, as though made on and as of such date (except
to the extent that such representations and warranties expressly relate solely
to an earlier date);
(ii) neither an Event of Default nor an Unmatured Event of Default has
occurred and is continuing on the date of the effectiveness of this Amendment;
(iii) on the date of the effectiveness of this Amendment, no Material
Adverse Change has occurred, as a result of one or more acts or occurrences; and
(iv) the Credit Agreement and each of the Loan Documents are in full force
and effect.
ARTICLE 3
MISCELLANEOUS
3.1 EXECUTION IN COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original. All of such counterparts shall constitute but one and the same
instrument. Delivery
of an executed counterpart of the signature pages of this Amendment by
telecopier shall be equally effective as delivery of a manually executed
counterpart. Any party delivering an executed counterpart of the signature pages
of this Amendment by telecopier thereafter also shall deliver promptly a
manually executed counterpart, but the failure to deliver such manually executed
counterpart shall not affect the validity, enforceability, or binding effect of
this Amendment.
3.2 EFFECTIVENESS. This Amendment shall be effective as of the date hereof,
subject to the fulfillment of the conditions set forth in SECTION 2.1 of this
Amendment.
3.3 NO OTHER AMENDMENT. Except as expressly amended hereby, the Credit
Agreement shall remain unchanged and in full force and effect. To the extent any
terms or provisions of this Amendment conflict with those of the Credit
Agreement, the terms and provisions of this Amendment shall control. This
Amendment shall be deemed a part of and hereby is incorporated in the Credit
Agreement.
3.4 GOVERNING LAW. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first set forth above.
SOUTHDOWN, INC.,
a Louisiana corporation
By____________________________
Title:______________________
XXXXX FARGO BANK, N.A.,
a national banking association, in its
individual capacity and as Agent
By____________________________
Title:______________________
SOCIETE GENERALE, SOUTHWEST
AGENCY
By____________________________
Title:______________________
CREDIT SUISSE
By____________________________
Title:______________________
By____________________________
Title:______________________
CAISSE NATIONALE DE CREDIT
AGRICOLE
By____________________________
Title:______________________
BANQUE PARIBAS
By____________________________
Title:______________________
By____________________________
Title:______________________
CIBC INC.
By____________________________
Title:______________________
THE BANK OF NOVA SCOTIA
By____________________________
Title:______________________
THE FIRST NATIONAL BANK OF
BOSTON
By____________________________
Title:______________________
