AMENDED AND RESTATED
SHAREHOLDER PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER PLEDGE AGREEMENT (this
"Agreement") dated as of June 5, 1998, is among the undersigned (individually
each a "Pledgor" and collectively the "Pledgors") and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (in its individual capacity, "BofA")
in its capacity as agent for the Lenders referred to below (in such capacity,
the "Agent").
W I T N E S S E T H:
WHEREAS, U.S. Aggregates, Inc., a Delaware corporation (the "Company"),
has entered into a Third Amended and Restated Credit Agreement dated as of
June 5, 1998 (as amended or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used but not defined herein are used as defined
in the Credit Agreement) with various financial institutions (individually
each a "Lender" and collectively the "Lenders") and the Agent, pursuant to
which the Lenders have agreed to make loans to, and issue or participate in
letters of credit for the account of, the Company;
WHEREAS, the Credit Agreement amends and restates a Second Amended and
Restated Credit Agreement dated as of October 15, 1996 (as amended, the
"Existing Credit Agreement") among the Company, various financial
institutions and the Agent;
WHEREAS, in connection with the Existing Credit Agreement, certain of
the undersigned (the "Existing Pledgors") have previously entered into
Shareholder Pledge Agreements with the Agent (collectively, the "Pledge
Agreements");
WHEREAS, each Pledgor is the owner of certain shares of capital stock of
a subsidiary of the Company (such subsidiaries are individually an "Issuer"
and collectively the "Issuers"), as more fully described opposite such
Pledgor's name in Schedule II hereto; and
WHEREAS, each of the Issuers will benefit directly and indirectly from
the making of loans and the issuance of letters of credit under the Credit
Agreement; and
WHEREAS, to induce the Lenders to make such loans and issue such letters
of credit, each Pledgor has agreed to execute and deliver this Agreement and
to pledge to the Agent all stock of each Issuer owned by such Pledgor;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Company under or
in connection with the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Pledge Agreement is hereby consolidated into this Agreement and all
Pledge Agreements are hereby amended and restated, and the parties hereto
agree, as follows:
1. Definitions. When used herein, the following terms shall have the
following meanings (such definitions to be applicable to both the singular
and plural forms of such terms):
Collateral means, with respect to any Pledgor, all property in which
such Pledgor has granted the Agent a Security Interest pursuant to
Section 2.
Default means the occurrence of any of the following events: (a) any
Unmatured Event of Default under Section 12.1.1 or 12.1.4 of the Credit
Agreement; (b) any Event of Default; or (c) any warranty of any Pledgor
herein is untrue or misleading in any material respect and, as a result
thereof, the Agent's security interest in, or rights and remedies with
respect to, any material portion of such Pledgor's Collateral is
impaired or otherwise adversely affected.
Event of Default has the meaning assigned to such term in the Credit
Agreement.
Liabilities means all obligations (monetary or otherwise) of the
Company, howsoever created, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or
to become due, which arise out of or in connection with the Credit
Agreement, the Notes or any other Loan Document to which it is a party.
Loan Document has the meaning assigned to such term in the Credit
Agreement.
Unmatured Event of Default has the meaning assigned to such term in the
Credit Agreement.
2. Pledge. As security for the payment of all Liabilities, each
Pledgor hereby pledges to the Agent, and grants to the Agent a security
interest in, all of the following:
A. All of the shares of stock and other securities described opposite
the name of such Pledgor on Schedule I hereto, all of the certificates and/or
instruments representing such shares of stock and other securities, and all
cash, securities, dividends, rights and other property at any time and from
time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares or other securities;
B. All additional shares of stock of any Issuer at any time and from
time to time acquired by such Pledgor in any manner, all of the certificates
representing such additional shares, and all cash, securities, dividends,
rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such shares;
C. All other property hereafter delivered to the Agent by or on behalf
of such Pledgor in substitution for or in addition to any of the foregoing,
all certificates and instruments representing or evidencing such property,
and all cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise distributed
in respect of or in
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exchange for any or all thereof; and
D. All products and proceeds of all of the foregoing.
Notwithstanding anything to the contrary herein, if any repurchase or
redemption of capital stock of any Issuer from any Pledgor is expressly
permitted by the Credit Agreement, the proceeds of such repurchase or
redemption received by such Pledgor shall not be "Collateral" hereunder.
Each Pledgor agrees to deliver to the Agent, promptly upon receipt and
in due form for transfer (i.e., endorsed in blank or accompanied by stock or
bond powers executed in blank), any Collateral which may at any time or from
time to time be in or come into the possession or control of such Pledgor;
and prior to the delivery thereof to the Agent, such Collateral shall be held
by such Pledgor separate and apart from its other property and in express
trust for the Agent.
3. Warranties; Further Assurances. Each Pledgor warrants to the Agent
and each Lender with respect to all Collateral of such Pledgor that: (a)
such Pledgor is (or at the time of any future delivery, pledge, assignment or
transfer thereof will be) the legal and equitable owner of such Collateral
free and clear of all liens, security interests and encumbrances of every
description whatsoever other than the security interest created hereunder;
and (b) the pledge and delivery of such Collateral pursuant to this Agreement
will create a valid perfected security interest in such Collateral in favor
of the Agent.
So long as any of the Liabilities shall be outstanding or any commitment
shall exist on the part of the Agent or any Lender with respect to the
creation of any Liabilities, (i) no Pledgor shall, without the express prior
written consent of the Agent, sell, assign, exchange, pledge or otherwise
transfer, encumber, or grant any option, warrant or other right to purchase
the stock of any Issuer [(other than pursuant to rights granted to issuers
of stock pursuant to stock purchase agreements)], or otherwise diminish or
impair any of its rights in, to or under any of the Collateral of such
Pledgor; (ii) each Pledgor shall execute such Uniform Commercial Code
financing statements and other documents and do such other acts and things,
all as the Agent may from time to time reasonably request, to establish and
maintain a valid, perfected security interest in the Collateral of such
Pledgor (free of all other liens, claims and rights of third parties
whatsoever) to secure the performance and payment of the Liabilities; and
(iii) each Pledgor will execute and deliver to the Agent such stock powers
and similar documents relating to the Collateral of such Pledgor,
satisfactory in form and substance to the Agent, as the Agent may reasonably
request.
4. Holding in Name of Agent, etc. The Agent may from time to time
after the occurrence and during the continuance of a Default, without notice
to any Pledgor, take all or any of the following actions: (a) transfer all
or any part of the Collateral of any Pledgor into the name of the Agent or
any nominee or sub-agent for the Agent, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder, (b)
appoint one or more sub-agents or nominees for the purpose of retaining
physical possession of any of the Collateral, (c) notify the parties
obligated on any of
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the Collateral to make payment to the Agent of any amounts due or to become
due thereunder, (d) endorse any checks, drafts or other writings in the name
of the applicable Pledgor to allow collection of the Collateral, (e) enforce
collection of any of the Collateral by suit or otherwise, and surrender,
release or exchange all or any part thereof, or compromise or renew for any
period (whether or not longer than the original period) any obligations of
any nature of any party with respect thereto, and (f) take control of any
proceeds of any of the Collateral.
5. Voting Rights, Dividends, etc. (a) Notwithstanding certain
provisions of Section 4 hereof, so long as the Agent has not given the notice
referred to in paragraph (b) below:
A. Each Pledgor shall be entitled to exercise any and all voting
or consensual rights and powers and stock purchase or subscription
rights (but any such exercise by any Pledgor of stock purchase or
subscription rights may be made only from funds of such Pledgor not
comprising part of the Collateral) relating or pertaining to the
Collateral of such Pledgor or any part thereof for any purpose;
provided, however, that each Pledgor agrees that not to exercise any
such right or power in any manner which would have a material adverse
effect on the value of the Collateral of such Pledgor or any part
thereof.
B. Each Pledgor shall be entitled to receive and retain any and
all lawful dividends payable in respect of the Collateral of such
Pledgor which are paid in cash by any Issuer if such dividends are
permitted by the Credit Agreement, but all dividends and distributions
in respect of such Collateral or any part thereof made in shares of
stock or other property or representing any return of capital, whether
resulting from a subdivision, combination or reclassification of
Collateral or any part thereof or received in exchange for Collateral or
any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such Issuer may be a
party or otherwise or as a result of any exercise of any stock purchase
or subscription right, shall be and become part of the Collateral
hereunder and, if received by such Pledgor, shall be forthwith delivered
to the Agent in due form for transfer (i.e., endorsed in blank or
accompanied by stock or bond powers executed in blank) to be held for
the purposes of this Agreement.
C. The Agent shall execute and deliver, or cause to be executed
and delivered, to each Pledgor, all such proxies, powers of attorney,
dividend orders and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the rights
and powers which it is entitled to exercise pursuant to clause (A) above
and to receive the dividends which it is authorized to retain pursuant
to clause (B) above.
(b) Upon notice from the Agent during the existence of a Default, and
so long as the same shall be continuing, all rights and powers which the
Pledgors are entitled to exercise pursuant to Section 5(a)(A) hereof, and all
rights of such Pledgor to receive and retain dividends pursuant to Section
5(a)(B) hereof, shall forthwith cease, and all such rights and powers shall
thereupon become vested in the Agent which shall have, during the continuance
of such Default, the sole and exclusive
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authority to exercise such rights and powers and to receive such dividends.
Any and all money and other property paid over to or received by the Agent
pursuant to this paragraph (b) shall be retained by the Agent as additional
Collateral hereunder and applied in accordance with the provisions hereof.
6. Remedies. Whenever a Default shall exist, the Agent may exercise
from time to time any rights and remedies available to it under the Uniform
Commercial Code as in effect in Illinois or otherwise available to it.
Without limiting the foregoing, whenever a Default shall exist the Agent (a)
may, to the fullest extent permitted by applicable law, without notice,
advertisement, hearing or process of law of any kind, (i) sell any or all of
the Collateral, free of all rights and claims of any Pledgor therein and
thereto, at any public or private sale or brokers' board and (ii) bid for and
purchase any or all of the Collateral at any such public sale and (b) shall
have the right, for and in the name, place and stead of the applicable
Pledgor, to execute endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or any of the
Collateral. Each Pledgor hereby expressly waives, to the fullest extent
permitted by applicable law, any and all notices, advertisements, hearings or
process of law in connection with the exercise by the Agent of any of its
rights and remedies during the continuance of a Default. If any notification
of intended disposition of any of the Collateral is required by law, such
notification, if mailed, shall be deemed reasonably and properly given if
mailed at least ten (10) days before such disposition, postage prepaid,
addressed to the applicable Pledgor, either at the address of such Pledgor
shown opposite its name below, or at any other address of such Pledgor
appearing on the records of the Agent. Any proceeds of any of the Collateral
may be applied by the Agent to the payment of expenses in connection with the
Collateral, including, without limitation, reasonable attorneys' fees and
legal expenses, and any balance of such proceeds may be applied by the Agent
toward the payment of such of the Liabilities, and in such order of
application, as the Agent may from time to time elect (and, after payment in
full of all Liabilities, any excess shall be delivered to such Pledgor or as
a court of competent jurisdiction shall direct).
The Agent is hereby authorized to comply with any limitation or
restriction in connection with any sale of Collateral as it may be advised by
counsel is necessary in order to (a) avoid any violation of applicable law
(including, without limitation, compliance with such procedures as may
restrict the number of prospective bidders and purchasers and/or further
restrict such prospective bidders or purchasers to Persons who will represent
and agree that they are purchasing for their own account for investment and
not with a view to the distribution or resale of such Collateral) or (b)
obtain any required approval of the sale or of the purchase by any
governmental regulatory authority or official, and each Pledgor agrees that
such compliance shall not result in such sale being considered or deemed not
to have been made in a commercially reasonable manner and that the Agent
shall not be liable or accountable to any Pledgor for any discount allowed by
reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
7. General. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral if it takes such
action for that purpose as the applicable Pledgor shall request in writing,
but failure of the Agent to comply with any such request shall not of itself
be
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deemed a failure to exercise reasonable care, and no failure of the Agent to
preserve or protect any rights with respect to the Collateral against prior
parties, or to do any act with respect to preservation of the Collateral not
so requested by the applicable Pledgor, shall be deemed a failure to exercise
reasonable care in the custody or preservation of any Collateral.
No delay on the part of the Agent in exercising any right, power or
remedy shall operate as a waiver thereof, and no single or partial exercise
of any such right, power or remedy shall preclude any other or further
exercise thereof, or the exercise of any other right, power or remedy. No
amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement shall be effective unless the same shall be in
writing and signed and delivered by the Agent, and then such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
All notices hereunder shall be in writing (including, without
limitation, facsimile transmission) and shall be sent to the applicable party
at its address shown below its signature hereto or at such other address as
such party may, by written notice received by the other parties hereto, have
designated as its address for such purpose. Notices sent by facsimile
transmission shall be deemed to have been given when sent; notices sent by
mail shall be deemed to have been given five days after the date when sent by
registered or certified mail, postage prepaid; and notices sent by hand
delivery shall be deemed to have been given when received.
All rights, powers and remedies of the Agent and the Lenders expressed
herein are in addition to all other rights, powers and remedies possessed by
them, including, without limitation, those provided by applicable law or in
any other written instrument or agreement relating to any of the Liabilities
or any security therefor.
This Agreement has been delivered at Chicago, Illinois, and shall be
construed in accordance with and governed by the internal laws of the State
of Illinois. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid
under such 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 this Agreement.
This Agreement shall be binding upon each Pledgor and the Agent and
their respective successors and assigns, and shall inure to the benefit of
the Pledgors and the Agent and the successors and assigns of the Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together
constitute but one and the same Agreement. At any time after the date of
this Agreement, one or more additional persons or entities may become parties
hereto by executing and delivering to the Agent a counterpart of this
Agreement. Immediately upon such
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execution and delivery (and without any further action), each such additional
person or entity will become a party to, and will be bound by all the terms
of, this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH THIS AGREEMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE PLEDGORS, THE AGENT AND (BY
ACCEPTING THE BENEFITS HEREOF) EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE PLEDGORS, THE
AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH LENDER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH PLEDGOR
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE PLEDGORS, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE,
ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION
WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
EACH OF THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH LENDER
ACKNOWLEDGES AND AGREES THAT THE PLEDGORS SHALL HAVE NO PERSONAL LIABILITY
WITH RESPECT TO THE LIABILITIES AS A RESULT OF THE EXECUTION AND DELIVERY OF
THIS AGREEMENT AND THE PLEDGE OF COLLATERAL HEREUNDER AND THAT SOLE RECOURSE
OF THE AGENT AND THE
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LENDERS AGAINST THE PLEDGORS UNDER THIS AGREEMENT SHALL BE TO THE COLLATERAL.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the day and year first written above.
/s/ Xxxxxxxx X. Xxxx
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/s/ Xxxxx X. Xxx
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxx Stocks
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Xxxxx Stocks
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
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By /s/ Xxxxx X. Xxxxxxxx
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Vice President
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/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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Xxxxx Xxxxxxx
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Signature page to the Shareholder Pledge
Agreement dated as of June 5, 1998 relating
to the Credit Agreement with U.S. Aggregates,
Inc.
The undersigned is executing a counterpart
hereof for purposes of becoming a party
hereto as of the date listed opposite each
signature hereto:
/s/ Xxxxxx Xxx Xxxxxx
Dated: September __, 1998 ---------------------------------------------
Xxxxxx Xxx Xxxxxx
/s/ Xxxxxx Xxx
Dated: September __, 1998 ---------------------------------------------
Xxxxxx Xxx
/s/ Xxxxx X. Xxxxxxx
Dated: September __, 1998 ---------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxx Xxxxxxxx
Dated: September __, 1998 ---------------------------------------------
Xxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxx
Dated: September __, 1998 ---------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
Dated: September __, 1998 ---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ L. Xxxxxxx Xxxxx
Dated: September __, 1998 ---------------------------------------------
L. Xxxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxx
Dated: September __, 1998 ---------------------------------------------
Xxxxx X. Xxxxxxxx
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SCHEDULE I
TO
SHAREHOLDER PLEDGE AGREEMENT
STOCK
No. of
Certificate Pledged
Issuer No. Shares
------ ----------- -------
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
Western Aggregates Holding Corp. _____ _____
SRM Holdings Corp. _____ _____
