EXHIBIT 4.17
THIS NOTE WAS ISSUED IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY
NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
COVERING THE TRANSFER OR AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER THAT SUCH REGISTRATION UNDER THE ACT IS NOT REQUIRED.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE
SUBORDINATE PURSUANT TO SUBORDINATION PROVISIONS TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE BORROWER PURSUANT
TO THAT CERTAIN THIRD AMENDED AND RESTATED CREDIT AGREEMENT AMONG
BANK OF AMERICA, N.A. AND OTHER LENDERS NAMED THEREIN AND U.S.
AGGREGATES, INC. AS THE BORROWER, DATED JUNE 5, 1998, AND THAT
CERTAIN AMENDED AND RESTATED NOTE AND WARRANT PURCHASE AGREEMENT
BETWEEN THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AND U.S.
AGGREGATES, INC. AS THE BORROWER, DATED JUNE 5, 1998 AND ANY
AMENDMENTS, MODIFICATIONS AND REPLACEMENTS THERETO; AND EACH
HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, SHALL BE
BOUND BY THE SUBORDINATION PROVISIONS; AND A COPY OF THE
SUBORDINATION PROVISIONS SHALL BE AVAILABLE UPON REQUEST TO THE
BORROWER BY THE HOLDER HEREOF WITHOUT CHARGE.
THIS SECURITY BEARS ORIGINAL ISSUE DISCOUNT. UPON WRITTEN
REQUEST TO THE CHIEF EXECUTIVE OFFICER OF U.S. AGGREGATES, INC.,
INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE
DISCOUNT, ISSUE DATE AND YIELD TO MATURITY WILL BE MADE
AVAILABLE.
PROMISSORY NOTE
$2,450,000 April 27, 0000
Xxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, the undersigned, U.S. Aggregates,
Inc., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of Golder, Thoma,
Xxxxxxx, Xxxxxx Fund IV, L.P., a Delaware limited partnership
(the "Lender" or "GTCR"), in lawful money of the United States of
America and in immediately available funds, the principal amount
of $2,450,000, or, if less, the aggregate unpaid principal amount
of all Loans made by the Lender to the Borrower pursuant to
Section 2.2 of the Loan Agreement (as hereinafter defined) and
the closing fee paid to the Lender pursuant to Section 5.1.4 of
the Loan Agreement (as hereinafter defined), at such times and at
such place as are specified in, and in accordance with the
provisions of, the Loan Agreement. This Note is referred to in
and was executed and delivered pursuant to that certain Junior
Subordinated Loan Agreement of even date herewith (as amended,
modified or supplemented from time to time, the "Loan Agreement")
between the Borrower and the Lender, to which reference is hereby
made for a statement of the terms and conditions under which each
Loan evidenced hereby is to be made and repaid. All capitalized
terms used herein shall, unless otherwise defined, have the
meanings for purposes hereof assigned to such terms in the Loan
Agreement.
The Borrower further promises to pay interest on the
outstanding unpaid principal amount hereof, as provided in the
Loan Agreement, from the date hereof until payment in full hereof
at the rate or rates per annum specified in subsection 3.2.1 of
the Loan Agreement. Interest shall be payable with respect to
the Loans, in arrears, on the dates, and upon the occurrence of
the events, specified in subsection 3.2.2 of the Loan Agreement
or as otherwise provided therein.
If any suit or action is instituted or attorneys are
employed to collect this Note or any part thereof, the Borrower
hereby promises and agrees to pay all costs of collection,
including, without limitation, attorneys' fees and court costs.
The Borrower and each endorser, guarantor and surety of
this Note hereby waive presentment, demand, notice, protest and
all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note. In
any action on this Note, the Lender or its assignee need not
produce or file the original of this Note, but need only file a
photocopy of this Note certified by the Lender or such assignee
to be a true and correct copy of this Note.
THIS NOTE HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO
HAVE BEEN MADE AT CHICAGO, ILLINOIS, AND SHALL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO SHALL BE
DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF
THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS. Whenever possible each provision of this Note
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Note shall be
prohibited by or invalid under any applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note. Whenever in this Note
reference is made to the Lender or the Borrower, such reference
shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Note
shall be binding upon and shall inure to the benefit of such
successors and assigns. The Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor
in possession of or for the Borrower.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has duly executed this Note
as of the date first written above.
U.S. AGGREGATES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Chief Executive Officer
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