AMENDED AND RESTATED
SUBSIDIARY PLEDGE AGREEMENT
THIS AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT (this "Agreement")
dated as of June 5, 1998 is among each of the parties identified on the
signature pages hereto as a "Pledgor" (individually each a "Pledgor" and
collectively the "Pledgors") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION 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 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 thereafter amended,
the "Existing Credit Agreement") among the Company, various financial
institutions and the Agent;
WHEREAS, in connection with the Existing Credit Agreement, certain of
Pledgors (the "Existing Pledgors") have previously entered into Subsidiary
Pledge Agreements with the Agent (collectively, the "Existing Pledge
Agreements");
WHEREAS, each Pledgor has executed and delivered a guaranty of the
obligations of the Company under the Credit Agreement (as amended or otherwise
modified from time to time, the "Guaranty"); and
WHEREAS, as a condition precedent to the making of loans and the issuance
of letters of credit under the Credit Agreement, each Pledgor is required to
execute and deliver this Agreement, it being the intention of the parties hereto
that this Agreement shall not effect a novation of the obligations of any
Existing Pledgor under the Existing Pledge Agreements, but be merely a
restatement, and where applicable, an amendment of the terms governing such
obligations;
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 Existing Pledge Agreement is hereby consolidated
into this Agreement and all Existing 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.
ISSUER means, the issuer of any of the shares of stock or other securities
representing all or any of the Collateral.
LIABILITIES means, with respect to any Pledgor, all obligations (monetary
or otherwise) of such Pledgor, 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 Guaranty, this Agreement or any other Loan Document to which such
Pledgor 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
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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 of the Issuers listed on SCHEDULE
I hereto 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 exchange for any or all thereof; and
D. All products and proceeds of all of the foregoing.
Each Pledgor agrees to deliver to the Agent, promptly upon receipt and in
due form for transfer (i.e., duly endorsed in blank or accompanied by stock or
bond powers duly 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; (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; (c) all
shares of stock referred to opposite such Pledgor's name on SCHEDULE I hereto
are duly authorized, validly issued, fully paid and non-assessable; (d) as to
each Issuer whose name appears opposite such Pledgor's name on SCHEDULE I
hereto, the shares of stock pledged as Collateral by such Pledgor represent on
the date hereof not less than the applicable percent (as shown on SCHEDULE I
hereto) of the total shares of capital stock issued and outstanding of such
Issuer; and (e) the information contained opposite such Pledgor's name on
SCHEDULE I hereto is true and accurate in all respects.
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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 making of
loans or other financial accommodations under the Credit Agreement, (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 which is pledged
hereunder, 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 pay the costs of
filing and recording or re-filing and re-recording the same in all public
offices deemed necessary or appropriate by the Agent) 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; (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; and (iv) each Pledgor will
furnish the Agent or any Lender such information concerning the Collateral of
such Pledgor as the Agent or such Lender may from time to time reasonably
request, and will permit the Agent or any Lender or any designee of the Agent or
any Lender, from time to time at reasonable times and on reasonable notice, to
inspect, audit and make copies of and extracts from all records and all other
papers in the possession of such Pledgor which pertain to the Collateral of such
Pledgor, and will, upon request of the Agent at any time when a Default has
occurred and is continuing, deliver to the Agent all of such records and papers.
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 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 any 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
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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 it will not 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
any 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
the Pledgors to receive
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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 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 of the applicable Pledgor, and
in such order of application, as the Agent may from time to time elect (and,
after payment in full of all such 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
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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 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
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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 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
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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.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the day and year first written above.
PLEDGORS:
WESTERN AGGREGATES HOLDING CORP.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Title:
----------------------
WESTERN ROCK PRODUCTS CORP.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Title:
----------------------
SRM HOLDINGS CORP.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Title:
----------------------
SOUTHERN READY MIX, INC.
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By: /s/ Xxxxx X. Xxxxxx
----------------------------
Title: CEO
----------------------
AGENT:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By Xxxxx X. Xxxxxxxx
--------------------------------
Vice President
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Signature page to the Amended and Restated Subsidiary Pledge Agreement dated as
of June 5, 1998, as amended, among various Subsidiaries of U.S. Aggregates, Inc.
and of Bank of America National Trust and Savings Association, as Agent.
The undersigned is executing a
counterpart hereof for purposes of
becoming a "Pledgor" hereunder:
MONROC, INC.
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Title:
----------------------------
SCHEDULE I
TO
AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT
STOCK
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Pledgor Issuer No. Shares and Outstanding Outstanding
------- ------ --- ------ --------------- -----------
Western Aggregates Xxx Rock Products 22 56,000 100% 56,000
Holding Corp. Incorporated
Xxx Rock 22 35,000 100% 35,000
Transportation
Mohave Concrete 3 2,650 100% 2,650
and Materials,
Inc., an Arizona
Corporation
Mohave Concrete 2 2,500 100% 2,500
and Materials,
Inc., a Nevada
Corporation
Needles Redi-Mix, 2 100,000 100% 100,000
Inc.
Geodyne Transport, 5,000 100% 5,000
Inc.
Falcon Ridge 4,204 100% 4,204
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Pledgor Issuer No. Shares and Outstanding Outstanding
------- ------ --- ------ --------------- -----------
Construction, Inc.
A-Block Company, 100,000 100% 100,000
Inc., a California
corporation ____
Xxxx Paving, Inc. ____ 1,000 100% 1,000
Western Rock 1 100% 1
Products Corp. ____
Intermountain 1,000 100% 1,000
Aggregates, Inc. ____
A-Block Company, 3 2,000 100% 2,000
Inc., an Arizona
corporation
Valley Asphalt, 42 83,650 100% 83,650
Inc.
Southern Nevada 1 1 100% 1
Aggregates, Inc.
Tri-State Testing 1 1 100% 1
Laboratories, Inc.
Monroc, Inc. ____ ____ 100% ____
Western Rock Xxxxxx 000003 240 100% 240
Products Corp. Construction &
Development, Inc.
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Pledgor Issuer No. Shares and Outstanding Outstanding
------- ------ --- ------ --------------- -----------
Sandia 3 600 100% 600
Construction, Inc.
Southern Ready DeKalb Stone, Inc. 31 5,250 50% of common 10,500 common
Mix, Inc.
Dekalb Stone, Inc. 1 200 100% of 200 preferred
preferred
Mulberry Rock 2 1,000 100% 1,000
Corporation
Xxxxxxx Holdings, 1 1,000 100% 1,000
Inc.
BHY Ready Mix, 2 1,000 100% 1,000
Inc.
Xxxxxxx Xxxxx & 6 1,000 100% 1,000
Sand, Inc.
SRM Holdings Corp. Southern Ready S-50 10,500 100% 10,500
Mix, Inc.
