SEVENTH AMENDMENT
THIS SEVENTH AMENDMENT dated as of May __, 2001 (this "Amendment") is to
the Third Amended and Restated Credit Agreement (as amended, the "Credit
Agreement") dated as of June 5, 1998 among U.S. AGGREGATES, INC., a Delaware
corporation (the "Company"), various financial institutions (the "Lenders") and
BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"). Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as defined
in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS.
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Effective on (and subject to the occurrence of) the Seventh Amendment
Effective Date (as defined below):
1.1 Section 1.1 of the Credit Agreement shall be amended by inserting the
following definitions, each in its appropriate alphabetical position:
Drawdown Amount has the meaning assigned thereto in the Seventh
Amendment Supplement.
Drawdown Date has the meaning assigned thereto in the Seventh
Amendment Supplement.
Proposed Purchaser means a purchaser with respect to the Southeastern
Assets Sale that has been separately identified by the Company to the Agent
and the Lenders prior to the Seventh Amendment Effective Date or such other
purchaser as shall be reasonably acceptable to the Agent and the Required
Lenders.
Required Term C Lenders means, at any time, (i) for any waiver,
amendment or modification to the definition of "Term C Loan Commitment
Termination Event", Term C Lenders having an aggregate Term C Loan
Percentage of 66-2/3% or more and (ii) in all other cases, Term C Lenders
having an aggregate Term C Loan Percentage of 51% or more.
Seventh Amendment Effective Date means the "Seventh Amendment
Effective Date" as defined in the Seventh Amendment to this Agreement dated
as of May __, 2001.
Seventh Amendment Supplement means the supplemental letter agreement
between the Company and the Agent dated as of May __, 2001, delivered in
connection with the Seventh Amendment hereto dated as of May __, 2001.
Southeastern Assets Sale means the sale of the businesses conducted by
SRM Aggregates, Inc. and its Subsidiaries, whether to the Proposed
Purchaser or otherwise.
Term C Lender means, at any time, a Lender with a Term C Loan
Commitment at such time or which then holds any Term C Loan.
Term C Loan - see Section 2.1.4.
Term C Loan Commitment means, as to any Lender, the commitment of such
Lender to make a Term C Loan pursuant to Section 2.1.4. The maximum amount
of each Lender's Term C Loan Commitment is set forth opposite such Lender's
signature to the Seventh Amendment hereto dated as of May __, 2001 in its
capacity as a Term C Lender. The aggregate amount of the Term C Loan
Commitments is $6,000,000.
Term C Loan Commitment Termination Event shall have the meaning set
forth in the Seventh Amendment Supplement.
Term C Loan Percentage means, as to any Lender, the percentage which
(a) the Term C Loan Commitment of such Lender plus the principal amount of
such Lender's Term C Loans is of (b) the aggregate amount of the Term C
Loan Commitments plus the aggregate principal amount of all Term C Loans.
1.2 The following definitions in Section 1.1 of the Credit Agreement shall
be amended and restated in their entireties to read as follows:
Facility means each of (a) the Revolving Commitments and the Revolving
Loans made thereunder, (b) the Term A Loan Commitments and the Term A Loans
made thereunder, (c) the Term B Loan Commitments and the Term B Loans made
thereunder and (d) the Term C Loan Commitments and the Term C Loans made
thereunder.
Percentage means a Revolving Loan Percentage, a Term A Loan
Percentage, a Term B Loan Percentage or a Term C Loan Percentage, as the
context may require.
Term Loans means the Term A Loans, the Term B Loans and the Term C
Loans.
Total Percentage means, as to any Lender, the percentage which (a) the
Commitments of such Lender plus the unpaid principal amount of the Term A
Loans, Term B Loans and Term C Loans of such Lender (plus, after the
termination of the Revolving Commitments, the sum of the unpaid principal
amount of the Revolving Loans of such Lender plus the participations of
such Lender in all Letters of Credit) is of (b) the sum of the Commitments
of all Lenders plus the unpaid principal amount of all Term A Loans, all
Term B Loans and all Term C Loans (plus, after the termination of the
Revolving Commitments, the sum of the unpaid principal amount of all
Revolving Loans plus the Stated Amount of all Letters of Credit).
1.3 The following Section 2.1.4 shall be added to the Credit Agreement:
2.1.4 Term C Loan Commitments. Each Term C Lender agrees to make one
or more term loans to the Company (each such loan, a "Term C Loan") from
time to time from the Seventh Amendment Effective Date to the Term C
Termination Date on the Drawdown Dates set forth below in such Term C
Lender's Term C Loan Percentage of the Drawdown Amount set forth below
applicable to such Drawdown Dates, in the manner set forth in the Seventh
Amendment Supplement. Notwithstanding anything to the contrary set forth
above, the Company may not borrow any Term C Loans if a Term C Loan
Commitment Termination Event has occurred. On each Drawdown Date, the Term
C Loan Commitments to make Term C Loans on such date shall be reduced
concurrently with the making of the Term C Loans on such Drawdown Date in
the amounts of such Term C Loans made. Amounts repaid with respect to the
Term C Loans may not be reborrowed. Notwithstanding the last sentence of
Section 2.3, borrowings of Term C Loans may be made in minimum amounts of
$500,000 or higher integral multiples of $50,000.
1.4 Section 2.2 of the Credit Agreement shall be amended by adding the
parenthetical phrase "(other than Term C Loans)" after the words "Term Loan" in
the first sentence thereof.
1.5 Section 3.1 of the Credit Agreement shall be amended by (i) inserting
the parenthetical phrase "(other than on Term C Loans)" immediately following
the words "Capitalized Interest" the first and third times such words appear in
clause (d) of such Section, and (ii) adding the following clause (e):
(e) Each Term C Loan (and all Capitalized Interest and other amounts
owing with respect thereto) of such Lender shall be paid in full on the
earliest to occur of (x) July 31, 2001, (y) the closing of the Southeastern
Assets Sale and (z) a Term C Loan Commitment Termination Event.
and (iii) adding the following sentence after clause (e) and at the end of the
Section: "Consistent with (but not in limitation of) the provisions of this
Section 3.1, the Note of each Term C Lender shall also evidence such Lender's
Term C Loans."
1.6 Section 4.1 of the Credit Agreement shall be amended by adding the
following as the last sentence thereof: "Notwithstanding anything to the
contrary herein, each Term C Loan shall bear interest from and including the
date of such Loan to but excluding the date such Loan is paid in full at a rate
per annum equal to the Alternate Base Rate plus 7% (subject to the proviso to
the immediately preceding sentence)."
1.7 Section 4.2 of the Credit Agreement shall be amended and restated in
its entirety to read as follows:
4.2 Interest Payment Dates; Capitalization of Interest. Accrued
interest on each ABR Loan shall be payable on the last Business Day of each
calendar month and at maturity, commencing with the first of such dates to
occur after the date of such Loan. Accrued interest on each Eurodollar Loan
shall be payable on the last day of each Interest Period relating to such
Loan and at maturity. After maturity, accrued interest on all Loans shall
be payable on demand. During the period from the Sixth Amendment Effective
Date through and including March 31, 2002, all interest due on the Loans
(other than Term C Loans) payable at any time at a rate in excess of (i) in
the case of ABR Loans, the Alternate Base Rate plus 3.00% per annum and
(ii) in the case of Eurodollar Loans, the Eurodollar Rate (Reserve
Adjusted) plus 4.00% per annum shall be capitalized and added to the unpaid
principal amount thereof on the date such payment is due. All capitalized
interest referred to in the immediately preceding sentence is referred to
herein as "Capitalized Interest". Capitalized Interest shall be earned and
become a binding obligation of the Company as it accrues.
1.8 Section 5 of the Credit Agreement shall be amended by adding the
following Section 5.6 thereto:
5.6 Success Fee. The Company shall be obligated to pay to the Term C
Lenders a fee of $1,000,000 to be allocated ratably among the Term C
Lenders in accordance with their Term C Percentages, payable upon the
closing of the Southeastern Asset Sale.
1.9 Section 6.1.1 of the Credit Agreement shall be amended to read in its
entirety as follows:
6.1.1 Mandatory Reduction of Revolving Commitments. Except as
otherwise expressly provided in Section 6.2.1 hereof, the Revolving
Commitments shall be permanently reduced in an amount equal to the
Designated Proceeds of any Mandatory Prepayment Event applied to the
Revolving Loans in accordance with Section 6.2.1.
1.10 Section 6.1.2 of the Credit Agreement shall be amended by (i) deleting
the word "Revolving" from the caption to such Section and (ii) adding the
following two sentences at the end of such Section: "The Company may from time
to time on at least three Business Days' prior written notice received by the
Agent (which shall promptly advise each Term C Lender thereof) permanently
reduce the amount of the Term C Commitments. The Company may at any time on like
notice terminate the Term C Commitments."
1.11 Section 6.1.3 of the Credit Agreement shall be amended by adding the
following as the last sentence thereof: "All reductions of the Term C Loan
Commitments shall be pro rata among the Term C Lenders according to their
respective Term C Percentages."
1.12 Section 6.2.1(a) of the Credit Agreement shall be amended by (i)
deleting the phrase ", after the Term Loans have been paid in full," where they
appear in the first paragraph of such Section and (ii) deleting the last
paragraph of such section and inserting the following paragraph in lieu thereof
All Designated Proceeds of Mandatory Prepayment Events shall be
applied to the Loans as follows: first to pay the fees, if any, of the
Lenders that are due and owing as a result of such Mandatory Prepayment
Event under Section 5.6 and under Section 3 of the Seventh Amendment hereto
dated as of May __, 2001 and other fees and expenses of the Agent in
connection with such Mandatory Prepayment Event, second to the Term C Loans
and third pro rata to the Term A Loans, Term B Loans and Revolving Loans
(with a concurrent reduction in the Revolving Commitments to the extent of
the Revolving Loans so prepaid), with application to the remaining
installments of each of the Term A Loans and Term B Loans on a pro rata
basis (provided, that in connection with the Southeastern Assets Sale, the
Company, the Agent and the Required Revolving Lenders may agree that a
portion of the application of the Net Cash Proceeds of the Southeastern
Assets Sale to the Revolving Loans shall not permanently reduce the
Revolving Commitments); provided that, in the case of any Mandatory
Prepayment Event described in clause (i), (ii) or (iii) above, the
Designated Proceeds of such Mandatory Prepayment Event shall be applied
(after application to the Term C Loans as aforesaid) first to prepay the
Revolving Loans (with a concurrent reduction in the Revolving Commitments
to the extent of the Revolving Loans so prepaid) and/or Cash Collateralize
the outstanding Letters of Credit (and the Revolving Commitments shall be
concurrently reduced to the extent of such Cash Collateralization) to the
extent necessary to eliminate any Borrowing Base Shortfall caused by such
Mandatory Prepayment Event (and, after such application, the remaining
Designated Proceeds shall be applied as set forth in this sentence).
1.13 Section 7.2 of the Credit Agreement shall be amended to read in its
entirety as follows:
7.2 Application of Certain Payments. Each payment of principal, and
all proceeds of any collateral securing the Loans, shall be applied (i) to
the extent any Term C Loan is unpaid, first, to the repayment of the Term C
Loans and (ii) after the application in clause (i) above, as otherwise
required by this Agreement or, to the extent not required to be applied to
any particular Loans, to such Loans as the Company shall direct by written
notice to be received by the Agent on or before the date of such payment
or, in the absence of such notice, as the Agent shall determine in its
reasonable discretion. Concurrently with each remittance to any Lender of
its share of any such payment, the Agent shall advise such Lender as to the
application of such payment. Consistent with the foregoing, and
notwithstanding any other provision of this Agreement to the contrary, the
Term C Loans (including, without limitation, any interest accruing thereon
and any fees relating thereto, including interest accruing or fees arising
after the commencement of any Insolvency Proceeding), as a matter of
complete contractual subordination, shall be senior in priority of payment
to all other Loans or other obligations under this Agreement, whether any
such payment (regardless of its source) shall occur before or after the
commencement of (or otherwise in conjunction with) any Insolvency
Proceeding.
1.14 Section 10.7 of the Credit Agreement shall be amended by deleting
clause (vi) of such Section and inserting the following in lieu thereof:
(vi) any other Asset Sale (including the stock of any Subsidiary) so
long as (a) at least 100% of the proceeds of such Asset Sale are in
cash, (b) the aggregate Net Cash Proceeds from all such Asset Sales
during the term of this Agreement do not exceed the Maximum Proceeds
Amount (provided that if the Net Cash Proceeds of the Southeastern
Assets Sale are at least $100,000,000, and all such Net Cash Proceeds
are applied to the Loans as set forth in Section 6.2.1, such Net Cash
Proceeds shall be disregarded for purposes of this clause (b)), (c)
the Company or the applicable Subsidiary receives consideration at the
time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (in each case as determined in
good faith by the Company's Board of Directors) and (d) the proceeds
thereof are applied as provided in Section 6.2.1
1.15 Section 10 of the Credit Agreement shall be amended by adding the
following Section 10.32 thereto:
10.32 Business Plan for Western Assets. On or prior to June 15, 2001,
and weekly thereafter, the Company shall deliver to the Agent and each
Lender a 26 week rolling preliminary cash flow budget for the operations of
the assets owned by Western Aggregates Holding Corporation and its
Subsidiaries (with the first 13 weeks of such budget on a weekly basis and
the second 13 weeks on a monthly basis). On or prior to June 30, 2001, the
Company shall deliver to the Agent and each Lender a business plan (with a
final cash flow budget) with respect to the assets owned by Western
Aggregates Holding Corporation and its Subsidiaries on the Seventh
Amendment Effective Date. Thereafter, the Company shall deliver, on a
weekly basis, to the Agent and each Lender a 26 week rolling cash flow
budget for the assets owned by Western Aggregates Holding Corporation and
its Subsidiaries (with the first 13 weeks on a weekly basis of each budget
and the second 13 weeks on a monthly basis).
1.16 Section 12.1.11 of the Credit Agreement shall be deleted and the
following inserted in lieu thereof:
12.1.11 Change of Control. A Change of Control shall occur.
1.17 Section 14.1 of the Credit Agreement shall be amended by (i) deleting
clause (3) of the proviso to the last sentence of such Section and inserting the
following in lieu thereof:
(3) no such waiver, amendment or consent relating to the definition of
"Mandatory Prepayment Event" or to any provision of this Agreement or any
other Loan Document which would result in any increased or decreased
mandatory prepayment of any Loan, or any increased or decreased mandatory
reduction of any Commitment, shall be made without the written consent of
the Required Revolving Lenders, Required Term A Lenders, Required Term B
Lenders and Required Term C Lenders
(ii) deleting clause (6) of the proviso to the last sentence of such Section and
inserting the following in lieu thereof:
(6) no such waiver, amendment or consent shall (v) change the
aggregate percentage of the Total Percentage which is required for the
Lenders or any of them to take any action hereunder without the written
consent of all Lenders, (w) amend the definition of "Required Revolving
Lenders" without the written consent of all Revolving Lenders, (x) amend
the definition of "Required Term A Lenders" without the written consent of
all Term A Lenders, (y) amend the definition of "Required Term B Lenders"
without the written consent of all Term B Lenders or (z) amend the
definition of "Required Term C Lenders" without the written consent of all
Term C Lenders;
(iii) deleting clause (9) of the proviso to the last sentence of such Section
and inserting the following in lieu thereof:
(9) after the making of the Term Loans, Section 2.3, 2.4 (as it
relates to conversions and continuations of Revolving Loans), 2.6, 2.7,
2.8, 2.9, 3.1(a), 6.1 or 6.2(b) may be amended, or the rights or privileges
thereunder waived, with the written consent of the Required Revolving
Lenders, the Company and the Agent; provided, further, that no amendment or
other modification, nor any waiver, of any such provision shall affect the
Term C Loans without the consent of the Required Term C Lenders;
(iv) deleting the word "and" immediately following clause (10) of the proviso to
the last sentence of such Section and (v) adding the following clauses (12),
(13) and (14) to the proviso to the last sentence of such Section:
(12) Section 2.1.4 and the Seventh Amendment Supplement may not be
amended or waived, and no consent with respect to either of them shall be
effective, without the written consent of the Required Term C Lenders;
(13) no amendment, modification or waiver of or with respect to
Section 7.2 shall have the effect of altering the priority of application
of payments of principal and proceeds of collateral in a manner adverse to
any holder of the Term C Loans without the consent of such holder; and
(14) no amendment or modification of the definition of "Term C Loan
Commitment Termination Event" may be made without the consent of the
Required Term C Lenders.
SECTION 2 REPRESENTATIONS AND WARRANTIES.
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The Company represents and warrants to the Agent and the Lenders that (a)
the representations and warranties made in Section 9 (excluding Sections 9.6 and
9.8) of the Credit Agreement are true and correct on and as of the Seventh
Amendment Effective Date with the same effect as if made on and as of the
Seventh Amendment Effective Date (except to the extent relating solely to an
earlier date, in which case they were true and correct as of such earlier date);
(b) except as waived hereby, no Event of Default or Unmatured Event of Default
exists or will result from the execution of this Amendment; (c) no event or
circumstance has occurred since the Effective Date that has resulted, or would
reasonably be expected to result, in a Material Adverse Effect; (d) the
execution and delivery by the Company of this Amendment and the performance by
the Company of its obligations under the Credit Agreement as amended hereby (as
so amended, the "Amended Credit Agreement") (i) are within the corporate powers
of the Company, (ii) have been duly authorized by all necessary corporate
action, (iii) have received all necessary approval from any Governmental
Authority and (iv) do not and will not contravene or conflict with any provision
of any law, rule or regulation or any order, decree, judgment or award which is
binding on the Company or any Guarantor or any of their respective Subsidiaries
or of any provision of the certificate of incorporation or bylaws or other
organizational documents of the Company or of any agreement, indenture,
instrument or other document which is binding on the Company or any Guarantor or
any of their respective Subsidiaries; (e) the Amended Credit Agreement is the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability; and (f) the obligation of the Company and the other Loan Parties
to repay the Loans and the other obligations under the Loan Documents is
absolute and unconditional, and there exists no right of setoff or recoupment,
counterclaim or defense of any nature whatsoever to payment of such obligations.
SECTION 3 FEE.
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The Company shall pay to the Agent, for the ratable account of each Lender,
an amendment fee in an amount equal to 0.25% of such Lender's Revolving
Commitment plus the Term Loans of such Lender outstanding on the Seventh
Amendment Effective Date plus the Term C Loan Commitment of such Lender (after
giving effect to this Amendment); provided that such fee shall not be payable
until the earlier to occur of (x) July 31, 2001 and (y) the closing of the
Southeastern Assets Sale (as defined in the Amended Credit Agreement).
SECTION 4 EFFECTIVENESS.
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The amendments set forth in Section 1 above shall become effective as of
the date hereof on such date (the "Seventh Amendment Effective Date") when the
Agent shall have received (a) a counterpart of this Amendment executed by the
Company and the Required Revolving Lenders, the Required Term A Lenders and the
Required Term B Lenders (or, in the case of any party other than the Company
from which the Agent has not received a counterpart hereof, facsimile
confirmation of the execution of a counterpart hereof by such party) and (b)
each of the following documents, each in form and substance satisfactory to the
Agent:
4.1 Reaffirmation. Counterparts of the Reaffirmation of Loan Documents,
substantially in the form of Exhibit A, executed by the Company, each Guarantor
and each Pledgor.
4.2 Resolutions. Certified copies of resolutions of the Board of Directors
of the Company authorizing or ratifying the execution, delivery and performance
by the Company of this Amendment, the Amended Credit Agreement and each other
Loan Document contemplated by this Amendment to which the Company is a party.
4.3 Incumbency and Signature Certificates. A certificate of the Secretary
or an Assistant Secretary of the Company, certifying the names of the officer or
officers of the Company authorized to sign this Amendment and the other Loan
Documents contemplated hereby to which the Company is a party, together with a
sample of the true signature of each such officer.
4.4 Other Documents. Such other documents as the Agent or any Lender may
reasonably request.
SECTION 5 MISCELLANEOUS.
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5.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the Seventh Amendment Effective Date, all references in the
Credit Agreement, the Notes, each other Loan Document and any similar document
to the "Credit Agreement" or similar terms shall refer to the Amended Credit
Agreement. The waivers contained in Section 2 hereof are limited strictly to
their terms and shall not apply to non-compliance with any other term of any
Loan Document.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 Expenses. The Company agrees to pay the reasonable costs and expenses
of the Agent (including reasonable fees and disbursements of counsel, including,
without duplication, the allocable costs of internal legal services and all
disbursements of internal legal counsel and the reasonable fees of
PricewaterhouseCoopers, L.L.P. ("PwC"), which shall continue to be retained as
financial advisor to the Agent) in connection with the preparation, execution
and delivery of this Amendment and the ongoing work being done by PwC in
connection with the workout of the Company's Debt.
5.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
5.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders and the Agent and the
successors and assigns of the Lenders and the Agent.
5.6 Loan Document. This Amendment is a Loan Document.
5.7 Chief Restructuring Officer. The Lenders acknowledge that the
appointment by the Company of Xx. Xxxxxxxx Xxxxxxxx as Chief Executive Officer
satisfies Company's obligation to have a "Chief Restructuring Officer" in place
by May 31, 2001.
5.8 Pledge Requirement. If the Company or any Subsidiary receives any cash
amount as an escrow, deposit of xxxxxxx money or as apart of any similar or
analogous arrangement from the Proposed Purchaser (as defined in the Amended
Credit Agreement) or any Affiliate thereof in connection with the Southeastern
Assets Sale (as defined in the Amended Credit Agreement), the Company shall (or
shall cause the applicable Subsidiary to) deposit such amount with the Agent in
pledge, as cash collateral for the Loans and other obligations of the Company
under the Amended Credit Agreement and the other Loan Documents pursuant to
arrangements in form and substance satisfactory to the Agent (it being
understood that any such amount may be refundable by the Company or the
applicable Subsidiary to the Proposed Purchaser).
5.9 Minimum Assignments. The Company, the Agent and the other parties
hereto hereby consent to any assignment by any Lender of Term C Loans (as
defined in the Amended Credit Agreement) to any Lender or Affiliate thereof
without any further consent by the Company and without regard to any minimum
assignment amount specified by Section 14.9.1 of the Credit Agreement.
SECTION 6 RELEASE OF CLAIMS.
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THE COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT IT DOES NOT HAVE ANY
DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR
NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF
LIABILITY OF THE COMPANY TO REPAY THE AGENT OR ANY LENDER AS PROVIDED IN THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM THE AGENT OR ANY LENDER. THE COMPANY HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES THE AGENT AND THE
LENDERS, AND THE AGENT'S AND EACH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS OR EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART
ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE MAY NOW OR HEREAFTER
HAVE AGAINST THE AGENT OR ANY SUCH LENDER, AND THE AGENT'S OR SUCH LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATION OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE EXERCISE
OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND
NEGOTIATION AND EXECUTION OF THIS AMENDMENT.
Delivered as of the day and year first above written.
1
U.S. AGGREGATES, INC.
By:
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Title:
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BANK OF AMERICA, N.A., as Agent
By:
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Title:
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BANK OF AMERICA, N.A., as a Lender and as
Issuing Lender
By:
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Title:
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FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), as a Lender
By:
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Title:
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NATIONAL CITY BANK, as a Lender
By:
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Title:
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BANK OF SCOTLAND, as a Lender
By:
----------------------------------------
Title:
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IBJ WHITEHALL BANK AND TRUST
COMPANY, as a Lender
By:
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Title:
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COMERICA BANK - CALIFORNIA, as a Lender
By:
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Title:
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ZIONS FIRST NATIONAL BANK, as a Lender
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:
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Title:
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PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments, Inc., as its
Investment Manager
By:
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Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
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Title:
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XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
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Title:
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XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
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Title:
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KZH-HIGHLAND - 2 LLC
By:
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Title:
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ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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ARCHIMEDES FUNDING III, LLC
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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SEQUILS-ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC, as
Collateral Manager
By:
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Title:
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BANK ONE, N.A.
By:
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Title:
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BRANCH BANKING AND TRUST COMPANY
By:
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Title:
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TERM C LENDERS:
Term C Commitment:
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$1,163,606.36 BANK OF AMERICA, N.A.
$502,108.26 NATIONAL CITY BANK
$473,684.42 BANK OF SCOTLAND
$473,684.41 IBJ WHITEHALL BANK AND TRUST COMPANY
$408,091.69 COMERICA BANK - CALIFORNIA
$433,890.24 ZIONS FIRST NATIONAL BANK
$432,870.00 UNION BANK OF CALIFORNIA, N.A.
$466,774.89 PILGRIM PRIME RATE TRUST
$372,640.37 SENIOR DEBT PORTFOLIO
$25,018.22 XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
$66,715.24 XXXXX XXXXX SENIOR INCOME TRUST
$219,287.64 ARCHIMEDES FUNDING III, LLC
$219,287.64 SEQUILS - ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC, as
Collateral Agent
$371,170.31 BANK ONE, NA
$371,170.31 BRANCH BANKING AND TRUST COMPANY
EXHIBIT A
FORM OF REAFFIRMATION
OF LOAN DOCUMENTS
as of May __, 2001
Bank of America, N.A., as Agent
and the other parties to the Third
Amended and Restated Credit
Agreement referred to below
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Agency Management Services #5596
Re: Reaffirmation of Loan Documents
Ladies and Gentlemen:
Please refer to:
1. The Amended and Restated Security Agreement dated as of June 5, 1998
(the "Security Agreement") among U.S. Aggregates, Inc. (the "Company"), Western
Aggregates Holding Corporation, a Delaware corporation, Xxxxxx Construction and
Development, Inc., a Nevada corporation, Sandia Construction, Inc., a Nevada
corporation, Xxx Rock Products Inc., a Utah corporation, Cox Transport
Corporation, a Utah corporation, SRM Holdings Corp., a Delaware corporation, SRM
Aggregates, Inc., an Alabama corporation, A-Block Company, Inc., an Arizona
corporation, A-Block Company, Inc., a California corporation, Mohave Concrete
and Materials, Inc., an Arizona corporation, Mohave Concrete and Materials,
Inc., a Nevada corporation, Mulberry Rock Corporation, a Georgia corporation,
Valley Asphalt, Inc., a Utah corporation, BHY Ready Mix, Inc., a Tennessee
corporation, Geodyne Xxxx Rock Products, Inc., a Utah corporation, Western Rock
Products Corp., a Utah corporation, Tri-State Testing Laboratories, Inc., a Utah
Corporation, Dekalb Stone, Inc., a Georgia corporation, Xxxxxxx Xxxxx & Sand,
Inc., a Tennessee corporation, Monroc, Inc., a Delaware corporation, Western
Aggregates, Inc., a Utah corporation, Eagle Valley Materials, Inc., Nevada
Aggregates, Inc., Bama Crushed Corporation, Grove Materials Corporation and Bank
of America, N.A. in its capacity as Agent (in such capacity, the "Agent");
2. The Amended and Restated Guaranty dated as of June 5, 1998 (the
"Guaranty") executed in favor of the Agent and various other parties by Western
Aggregates Holding Corporation, Xxxxxx Construction and Development, Inc.,
Sandia Construction, Inc., Xxx Rock Products Inc., Cox Transport Corporation,
SRM Holdings Corp., SRM Aggregates, Inc., A-Block Company, Inc., A-Block
Company, Inc., Mohave Concrete and Materials, Inc., Mohave Concrete and
Materials, Inc., Mulberry Rock Corporation, Valley Asphalt, Inc., BHY Ready Mix,
Inc., Geodyne Xxxx Rock Products, Inc., Western Rock Products Corp., Tri-State
Testing Laboratories, Inc., Dekalb Stone, Inc., Xxxxxxx Xxxxx & Sand, Inc.,
Monroc, Inc., Eagle Valley Materials, Inc., Nevada Aggregates, Inc., Bama
Crushed Corporation, Grove Materials Corporation ;
3. The following Pledge Agreements:
(a) the Amended and Restated Company Pledge Agreement dated as of June
5, 1998 between the Company and the Agent, and
(b) the Amended and Restated Subsidiary Pledge Agreement dated as of
June 5, 1998 between Western Aggregates Holding Corp., Western Rock Products
Corp., SRM Holdings Corp., Southern Ready Mix, Inc., Monroc, Inc., and the
Agent,
(all of the foregoing Pledge Agreements, in each case as heretofore amended,
being collectively referred to herein as the "Pledge Agreements").
4. The Patent Security Agreement made as of March 30, 1995 by Xxx Rock
Products Inc. in favor of the Agent (the "Patent Security Agreement").
5. Each other Loan Document (as defined in the Credit Agreement referred to
below).
The Security Agreement, the Guaranty, the Pledge Agreements, the Patent
Security Agreement and the other Loan Documents referred to above, in each case
as heretofore amended, are collectively referred to herein as the "Documents".
Capitalized terms not otherwise defined herein will have the meanings given in
the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Company, the Banks and the
Agent have executed the Seventh Amendment (the "Amendment") to the Third Amended
and Restated Credit Agreement dated as of June 5, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement").
Each of the undersigned hereby (i) confirms that each Document to which
such undersigned is a party remains in full force and effect after giving effect
to the effectiveness of the Amendment and that, upon such effectiveness, all
references in such Document to the "Credit Agreement" shall be references to the
Credit Agreement as amended by the Amendment, (ii) acknowledges and agrees that
its obligations under the Documents are absolute and unconditional, and there
exists no right of setoff or recoupment, counterclaim or defense of any nature
whatsoever thereto and (iii) VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENT AND THE LENDERS, AND THE AGENT'S AND LENDER'S PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, OR EXPENSES, AND LIABILITIES
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THE FOREGOING AMENDMENT IS EXECUTED,
WHICH IT MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR ANY SUCH LENDER, AND THE
AGENT'S OR SUCH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATION, OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR
ANY OTHER DOCUMENT, AND NEGOTIATION AND EXECUTION OF THE FOREGOING AMENDMENT.
The letter agreement may be signed in counterparts and by the various
parties as herein on separate counterparts. This letter agreement shall be
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such State.
U.S. AGGREGATES, INC.
By:_______________________________
Title:____________________________
SRM HOLDINGS CORP.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES HOLDING CORP.
By:________________________________
Title:_____________________________
WESTERN ROCK PRODUCTS CORP.
By:________________________________
Title:_____________________________
XXXXXX CONSTRUCTION & DEVELOPMENT, INC.
By:________________________________
Title:_____________________________
SANDIA CONSTRUCTION, INC.
By:________________________________
Title:_____________________________
TRI-STATE TESTING LABORATORIES, INC.
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
a Nevada corporation
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
a California corporation
By:________________________________
Title:_____________________________
XXX ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
COX TRANSPORT CORPORATION
By:________________________________
Title:_____________________________
VALLEY ASPHALT, INC.
By:________________________________
Title:_____________________________
GEODYNE XXXX ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
SRM AGGREGATES, INC.
By:________________________________
Title:_____________________________
DEKALB STONE, INC.
By:________________________________
Title:_____________________________
MULBERRY ROCK CORPORATION
By:________________________________
Title:_____________________________
BHY READY MIX, INC.
By:________________________________
Title:_____________________________
XXXXXXX XXXXX & SAND, INC.
By:________________________________
Title:_____________________________
MONROC, INC.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES, INC.
By:________________________________
Title:_____________________________
EAGLE VALLEY MATERIALS, INC.
By:________________________________
Title:________________________
NEVADA AGGREGATES, INC.
By:________________________________
Title:_____________________________
BAMA CRUSHED CORPORATION
By:________________________________
Title:__________________________
GROVE MATERIALS CORPORATION
By:________________________________
Title:_____________________________
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA, N.A., as Agent
By:________________________________
Title:_______________________________
