EXHIBIT 4.7(vi)
Execution Version
U.S. AGGREGATES, INC.
AMENDMENT NO. 4 TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
AMENDMENT NO. 1 TO WARRANT AGREEMENT
Dated as of April 18, 2001
$30,000,000 Senior Subordinated Notes Due November 22, 2006
and
$15,000,000 Senior Subordinated Notes Due November 22, 2008
and
$900,000 Senior Subordinated Note Due April 18, 2002
U.S. AGGREGATES, INC.
$30,000,000 Senior Subordinated Notes Due November 22, 2006
and
$15,000,000 Senior Subordinated Notes Due November 22, 2008
and
$900,000 Senior Subordinated Note Due April 18, 2002
AMENDMENT NO. 4 TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
AMENDMENT NO. 1 TO WARRANT AGREEMENT
As of April 18, 2001
The Prudential Insurance Company of America
c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
U.S. AGGREGATES, INC., a Delaware corporation (together with
its successors and assigns, the "Company"), agrees with you as
follows:
1. PRIOR AMENDMENT AND ISSUANCE OF NOTES.
The Company has entered into an Amendment No. 1 to Amended
and Restated Note and Warrant Purchase Agreement, dated as of
April 14, 1999; an Amendment No. 2 to Amended and Restated Note
and Warrant Purchase Agreement, dated as of August 12, 1999; and
Amendment No. 3 to Amended and Restated Note and Warrant Purchase
Agreement, dated as of September 29, 2000, pursuant to which
certain amendments were made to the Amended and Restated Note and
Warrant Purchase Agreement dated as of June 5, 1998 (as in effect
immediately prior to giving effect to the amendments provided for
by this Agreement, the "Existing Note Purchase Agreement" and, as
amended pursuant to this Agreement and as may be further amended,
restated or otherwise modified from time to time, the "Amended
Note Purchase Agreement") whereby $30,000,000 aggregate principal
amount of Senior Subordinated Notes due November 22, 2006 and
$15,000,000 aggregate principal amount of Senior Subordinated
Notes due November 22, 2008 (such Notes as in effect immediately
prior to giving effect to the amendments provided for by this
Agreement, the "Existing Notes") of the Company have been issued
to you and are currently outstanding. The Existing Notes, as
amended pursuant to this Agreement and as may be further amended,
restated or otherwise modified from time to time, together with
the 2001 Note (as defined below), are referred to herein as the
"Notes."
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined have
the meanings ascribed to them in the Amended Note Purchase
Agreement.
3. REQUEST FOR CONSENT TO AMENDMENTS; WAIVERS; OVERRIDE.
3.1. Amendments.
The Company requests that you consent to the amendments to
the Existing Note Purchase Agreement, the Existing Notes and the
Existing Warrant Agreement (as defined below) provided for by
this Agreement (the "Amendments") and, in consideration of such
consent, agrees to issue to you the 2001 Note and the 2001
Warrants (as defined below).
3.2. Waivers.
Effective on (and subject to the occurrence of) the
Amendment No. 4 Effective Date, the Required Holders hereby waive
(the "Waivers") any Event of Default caused by the Company's
noncompliance with paragraphs 8A ("Interest Coverage Ratio"), 8B
("Fixed Charge Coverage") and 8C ("Leverage Ratio") of the
Existing Note Purchase Agreement, in each case for the fiscal
quarters of the Company ended December 31, 2000 and March 31,
2001, and xxxxxxxxx 0X ("Xxxxxxx XXXXXX") of the Existing Note
Purchase Agreement, for any period ended prior to the date
hereof.
3.3. Override of Certain Provisions of Existing Note Purchase
Agreement.
Subject to Section 6.3, the effectiveness of the provisions
of the Existing Note Purchase Agreement set forth below (the
"Suspended Provisions") is hereby suspended for the period (the
"Suspension Period") commencing on the Amendment No. 4 Effective
Date (as defined below) and ending on June 29, 2002. The Company
shall not be required to comply with the Suspended Provisions
during the Suspension Period and you shall have no rights based
on the Suspended Provisions during such period. At the
conclusion of the Suspension Period, the Company shall again be
required to comply with the Suspended Provisions (effective as of
the end of the first fiscal quarter of the Company ending after
the Suspension Period, regardless of the fact that fiscal
quarters and a fiscal year ending within the Suspension Period
will be taken into account in determining such compliance), and
you shall have the rights specified in the Amended Note Purchase
Agreement upon any failure of the Company so to comply. The
Suspended Provisions are paragraphs 8A ("Interest Coverage
Ratio"), 8B ("Fixed Charge Coverage") and 8C ("Leverage Ratio").
All other provisions of the Amended Note Purchase Agreement shall
be in full force and effect during the Suspension Period.
Immediately upon the conclusion of the Suspension Period, the
amendments to the covenants and definition set forth in Sections
5 and 7 of Part 1 of Exhibit A shall cease to be effective and
such covenants and definition, as set forth in the Existing Note
Purchase Agreement, shall be in full force and effect.
4. ISSUANCE OF 2001 NOTE AND 2001 WARRANTS.
4.1. Issuance of 2001 Note.
The Company has authorized the issue of its senior
subordinated promissory note in the aggregate principal amount of
Nine Hundred Thousand Dollars ($900,000), to be dated the date of
issue thereof, to mature on the first anniversary of the
Amendment No. 4 Effective Date, to bear interest, payable
quarterly in arrears, on the unpaid balance thereof until the
principal thereof shall have become due and payable at the rate
and manner specified therein, and to be in substantially the form
of Exhibit A3 to the Amended Note Purchase Agreement (the "2001
Note").
4.2. Amendment of Existing Warrant Agreement; Issuance of 2001
Warrants.
(a) Amendment of Existing Warrant Agreement. The Company and
the Purchaser are parties to a Warrant Agreement, dated as of
June 5, 1998 (the "Existing Warrant Agreement"). The Existing
Warrant Agreement is hereby amended (as so amended, the "Amended
Warrant Agreement") by changing the reference to the number of
Warrants authorized by the Board of Directors in Recital A to
"Seven Hundred Sixty-Seven Thousand Nine Hundred Thirty-Three
(767,933)" and is further amended by amending and restating
Recital B and by adding a new Recital C, as set forth below:
B. The Company and the Purchaser have
entered into an Amended and Restated Note and
Warrant Purchase Agreement (as may be amended
from time to time, the "Note Agreement"),
dated as of even date herewith, pursuant to
which the Company agreed to sell, and the
Purchaser agreed to purchase, Fifteen Million
Dollars ($15,000,000) in aggregate principal
amount of the Company's 10.09% Senior
Subordinated Notes due November 22, 2008
(together with the Senior Subordinated Note
referred to in Recital C below, the "Notes")
and a portion of the Warrants, for an
aggregate consideration of Fifteen Million
Dollars ($15,000,000) in cash.
C. The Company and the Purchaser have
entered into Amendment No. 4 to the Note
Agreement, dated as of April 18, 2001,
pursuant to which the Purchaser has agreed to
certain amendments to the Note Agreement and
the Notes, and in consideration thereof, the
Company has issued a certain Senior
Subordinated Note due April 18, 2002, in the
aggregate principal amount of $900,000, to
the Purchaser and a portion of the Warrants.
(b) Issuance of 2001 Warrants. The Company has
authorized the issue of an aggregate of Six Hundred Seventy-
One Thousand Five Hundred Eighty-Two (671,582) warrants (the
"2001 Warrants") to purchase shares of Common Stock of the
Company. The 2001 Warrants shall be issued pursuant to the
Amended Warrant Agreement and shall be substantially in the
form of Attachment A to the Amended Warrant Agreement.
(c) Registration Rights and Stockholders' Agreement.
The Company hereby acknowledges and agrees that the 2001
Warrants shall be "Warrants" (as defined in the Registration
Rights Agreement) for all purposes under the Registration
Rights Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Agreement and to consent to
the Amendments and Waivers, the Company represents and warrants
as follows:
5.1. Organization and Existence.
The Company is a corporation duly organized and existing in
good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to execute and deliver
this Agreement, the 2001 Note and the 2001 Warrants (the 2001
Warrants, together with this Agreement and the 2001 Note, are
herein referred to collectively as the "Transaction Documents")
and to perform its obligations under the Amended Note Purchase
Agreement and the Transaction Documents.
5.2. Actions Pending.
There are no actions, suits, investigations or proceedings
pending or, to the knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any properties or
rights of the Company or any of its Subsidiaries, by or before
any court, arbitrator or administrative or governmental body
that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
5.3. Transaction Documents Authorized; Obligations Enforceable.
(a) Transaction Documents are Legal and Authorized. The
execution and delivery by the Company of the Transaction
Documents, and compliance by the Company with all of the
provisions of the Amended Note Purchase Agreement and the
Transaction Documents, are within the corporate powers of the
Company.
(b) Company Obligations are Enforceable. The Company has duly
authorized the Transaction Documents by all necessary action on
its part. This Agreement has been executed and delivered by one
or more duly authorized officers of the Company, and each of this
Agreement and the Amended Note Purchase Agreement constitutes,
and, upon execution and delivery thereof, each of the 2001 Note
and the 2001 Warrants will constitute, a legal, valid and binding
obligation of the Company, enforceable in accordance with its
terms, except that the enforceability thereof may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws
affecting the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
5.4. No Conflicts.
Neither the execution nor delivery of the Transaction
Documents, nor fulfillment of nor compliance with the terms and
provisions of the Amended Note Purchase Agreement and the
Transaction Documents will conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the
creation of any Lien upon any of the Properties of the Company or
any of its Subsidiaries pursuant to, the charter or bylaws of the
Company or any of its Subsidiaries, any award of any arbitrator
or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or
regulation to which the Company or any of its Subsidiaries is
subject.
5.5. Governmental Consent.
Neither the execution and delivery of the Transaction
Documents, nor the performance by the Company of its obligations
under the Amended Note Purchase Agreement and the Transaction
Documents, is such as to require any authorization, consent,
approval, exemption or other action by or notice to or filing
with any court or administrative or governmental body (other than
routine filings with the Securities and Exchange Commission
and/or state Blue Sky authorities) on the part of the Company in
connection with the execution and delivery of this Agreement or
fulfillment of or compliance with the terms and provisions of the
Amended Note Purchase Agreement or of the Transaction Documents.
5.6. Full Disclosure.
The Transaction Documents and the documents, certificates or
other writings delivered to you by or on behalf of the Company in
connection with the proposal and negotiation of the Amendments
and Waivers, taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light
of the circumstances under which they were made. There is no
fact known to the Company that could reasonably be expected to
have a Material Adverse Effect that has not been set forth herein
or in the other documents, certificates and other writings
delivered to you by or on behalf of the Company specifically for
use in connection with the transactions contemplated by the
Amended Note Purchase Agreement and the Transaction Documents.
5.7. Amendment of Bank Credit Agreement
Attached hereto as Exhibit C is a copy of the Sixth
Amendment to the Bank Credit Agreement (the "Sixth Amendment"),
which has been duly executed and delivered by each of the parties
thereto, is true, correct and complete, and (subject only to the
effectiveness of this Agreement) is in full force and effect.
5.8. No Defaults.
No event has occurred and no condition exists that, upon the
execution and delivery of this Agreement and the effectiveness of
the Amendments and Waivers and the Sixth Amendment, would
constitute a Default or an Event of Default.
6. AMENDMENTS.
6.1. Amendments to Existing Note Purchase Agreement and Existing
Notes.
Subject to paragraph 6.3, (a) the Existing Note Purchase
Agreement is hereby amended in the manner specified in Part 1 of
Exhibit A to this Agreement and (b) the Existing Notes are hereby
amended in the manner specified in Part 2 of Exhibit A.
6.2. Accrued Capitalized Interest Amounts.
The aggregate amount of unpaid interest that has accrued on
the outstanding principal amount of each Existing Note from (and
including) February 22, 2001 to (but excluding) the Amendment No.
4 Effective Date is hereby added to the outstanding principal
amount of each such Existing Note. Schedule 6.2 attached hereto
accurately reflects the outstanding principal amount of each Note
as of the Amendment No. 4 Effective Date (and after giving effect
to the preceding sentence).
6.3. Effectiveness of Amendments and Waivers.
The amendments and Waivers of the Existing Note Purchase
Agreement and the Existing Notes contemplated by paragraph 3.2,
paragraph 6.1, paragraph 6.2, and Exhibit A shall become
effective only upon the satisfaction in full, on or prior to
April 18, 2001, of the following conditions precedent (which date
shall be referred to as the "Amendment No. 4 Effective Date"):
(a) the Company and you shall have executed and delivered a
counterpart of this Agreement;
(b) the representations and warranties set forth in paragraph 5
shall be true and correct as of the Amendment No. 4 Effective
Date;
(c) each Restricted Subsidiary shall have executed and delivered
the Guarantor Consent in respect of its obligations under the
Subsidiary Guaranty, substantially in the form attached hereto as
Exhibit B;
(d) the Company shall have paid you an amendment fee in the
amount of $900,000, such fee to be paid by the Company by the
delivery to you of the 2001 Note;
(e) the Company shall have delivered to you the 2001 Warrants;
(f) the Company shall have authorized, by all necessary
corporate action, the execution and delivery of each of the
Transaction Documents and the performance of all obligations of,
and the satisfaction of all closing conditions set forth in this
paragraph 6 and the consummation of all transactions contemplated
by this Agreement by, the Company;
(g) the Company shall have paid the fees and expenses of your
special counsel as provided in paragraph 7;
(h) the Company shall have received the commitment of GTCR LP or
its Affiliates, in the form attached hereto as Exhibit D, to
purchase a junior subordinated note for the sum of, or provide an
equity investment of, $2,000,000 in immediately available funds,
payable not later than 10 days after the Amendment No. 4
Effective Date; and
(i) all proceedings taken in connection with this
Agreement and all documents and papers relating thereto
shall be satisfactory to you and your special counsel, and
you and your special counsel shall have received copies of
such documents and papers as you or your special counsel may
reasonably request in connection herewith, including any
legal opinions of counsel to the Company in respect of the
transactions contemplated hereunder.
6.4. Condition Subsequent.
It shall be an Event of Default, and this Agreement shall be
retroactively ineffective to the date hereof, if the Company
shall not have received within 10 days of the Amendment No. 4
Effective Date, net cash proceeds of not less than $2,000,000
constituting an investment of equity capital or debt subordinated
to the Notes, in either case in form and substance reasonably
satisfactory to you, from GTCR LP or its Affiliates.
7. EXPENSES.
Whether or not the Amendments and Waivers become effective,
the Company will on the Amendment No. 4 Effective Date (or if an
invoice is delivered subsequent to the Amendment No. 4 Effective
Date or if the Amendments and Waivers do not become effective,
promptly and in any event within 10 days of receiving any
statement or invoice therefor) pay all fees, expenses and costs
relating to this Agreement, including, but not limited to, (a)
the cost of reproducing this Agreement and the other documents
delivered in connection herewith and (b) the reasonable fees and
disbursements of your special counsel (namely, Xxxxxxx Xxxx LLP,
or its successors or assigns) incurred in connection with the
preparation, negotiation and delivery of the Transaction
Documents. Nothing in this paragraph 7 shall limit the Company's
obligations under paragraph 14B of the Amended Note Purchase
Agreement.
8. MISCELLANEOUS.
8.1. Part of Existing Note Purchase Agreement, Future References,
etc.
Except as expressly amended by this Agreement, all terms,
conditions and covenants contained in the Existing Note Purchase
Agreement, the Existing Notes and the other Financing Documents
are hereby ratified and shall be and remain in full force and
effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and
delivery of this Agreement may refer to the Existing Note
Purchase Agreement, the Existing Notes and the other Financing
Documents without making specific reference to this Agreement,
but nevertheless all such references shall include this Agreement
unless the context otherwise requires.
8.2. Counterparts; Effectiveness.
This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Delivery of an
executed signature page by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this
Agreement.
8.3. Successors and Assigns.
All covenants and other agreements in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the
parties hereto (including, without limitation, any Transferee)
whether so expressed or not.
8.4. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
[Remainder of page intentionally left blank. Next page is
signature page.]
If you are in agreement with the foregoing, please so
indicate by signing the agreement below on the accompanying
counterpart of this Agreement and return it to the Company,
whereupon the foregoing shall become a binding agreement between
you and the Company.
Very truly yours,
U.S. AGGREGATES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
___________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxxx X. Xxxxxx
_____________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
PART 1
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. The penultimate sentence of paragraph 3(i) is hereby amended
and restated in its entirety to read as follows:
The term "Notes" as used herein shall include the
1996 Notes, the 1998 Notes and the 2001 Note.
2. The following new sentence is hereby added as the third
sentence in the introductory paragraph of paragraph 6 of the
Existing Note Purchase Agreement:
The unpaid principal amount of the 2001 Note is due on April
18, 2002.
3. Subparagraphs (i) to (iii), inclusive, of Paragraph 6A of
the Existing Note Purchase Agreement are hereby amended and
restated in their entirety to read as follows:
(i) 1996 Notes. Until the 1996 Notes shall be paid in
full, the Company shall apply to the prepayment of the 1996
Notes, without premium, the sum of Six Million Dollars
($6,000,000) on November 22 in each of the years 2003 to
2005, inclusive, and such principal amounts of the 1996
Notes, together with interest thereon to the prepayment
dates, shall become due on such prepayment dates. In
addition, on the first anniversary of the Amendment No. 4
Effective Date, the Company shall prepay an amount equal to
the result of (a) all Capitalized Interest Amounts (as
defined in the 1996 Notes) added to the principal amount of
the 1996 Notes during the period commencing on the Amendment
No. 4 Effective Date and ending on (and including) the first
anniversary thereof minus (b) an amount equal to 2% per
annum on the outstanding principal amount of the 1996 Notes
during such period, the amount of such prepayment to be made
together with interest thereon to such date, but without
premium. The remaining principal amount of the 1996 Notes,
together with interest accrued thereon, shall become due on
the maturity date of the 1996 Notes.
(ii) 1998 Notes. Until the 1998 Notes shall be paid in
full, the Company shall apply to the prepayment of the 1998
Notes, without premium, the sum of Four Million Five Hundred
Thousand Dollars ($4,500,000) on November 22, 2006 and
November 22, 2007, and such principal amounts of the 1998
Notes, together with interest thereon to the prepayment
dates, shall become due on such prepayment dates. In
addition, on the first anniversary of the Amendment No. 4
Effective Date, the Company shall prepay an amount equal to
the result of (a) all Capitalized Interest Amounts (as
defined in the 1998 Notes) added to the principal amount of
the 1998 Notes during the period commencing on the Amendment
No. 4 Effective Date and ending on (and including) the first
anniversary thereof minus (b) an amount equal to 2% per
annum on the outstanding principal amount of the 1998 Notes
during such period, the amount of such prepayment to be made
together with interest thereon to such date, but without
premium. The remaining principal amount of the 1998 Notes,
together with interest accrued thereon, shall become due on
the maturity date of the 1998 Notes.
(iii) 2001 Note. The entire principal amount,
together with all Capitalized Interest Amounts (as defined
in the 2001 Note) shall be due and payable on the maturity
date of the 2001 Note.
4. Clause (iii) of paragraph 7A (such paragraph generally
requiring the delivery of information to the Purchaser) is hereby
amended and restated in its entirety to read as follows:
(iii) concurrently with distribution thereof to the
Agent or any Bank, a copy of each certificate or report
(together with all attachments thereto) delivered pursuant
to the Bank Credit Agreement (or any agreement replacing the
Bank Credit Agreement), including, without limitation,
pursuant to Section 10.1.13 and Section 10.1.15 thereof;
5. Each of paragraphs 8E ("Restricted Payments"), 0X ("Xxxx
Xxxxxxxxxxxx"), 0X ("Xxxxx"), 0X ("Xxxxxxx and Consolidations"),
8K ("Restricted Investments"), 8M ("Transactions with
Affiliates"), 8N ("Capital Expenditures") and 8M ("Minimum
EBITDA"; paragraph 8M being intended to be paragraph 8O and being
inadvertently numbered incorrectly) of the Existing Note Purchase
Agreement is hereby amended and restated in its entirety to read,
respectively, as follows:
8E. Restricted Payments. The Company
will not and will not permit any Restricted
Subsidiary to,
(i) declare or pay any dividend
(other than stock dividends) or
distribution on any of its capital
stock,
(ii) purchase or redeem any capital
stock of the Company or any Restricted
Subsidiary (or any warrants, options or
other rights in respect thereof),
(iii) make any other
distribution to shareholders of the
Company or any Restricted Subsidiary,
(iv) prepay, purchase, defease or
redeem any Debt subordinate to the Notes
(including, without limitation, the GTCR
Subordinated Debt), or
(v) set aside funds for any of the
foregoing;
provided that any Restricted Subsidiary may
declare and pay dividends, or make other
distributions, to the Company or to another
Restricted Subsidiary of the Company (but not
to any other Person).
8F. Debt Restrictions. The Company
will not, and will not permit any Restricted
Subsidiary to, at any time, directly or
indirectly create, incur, assume, guarantee
or otherwise become liable with respect to,
any Debt (including, without limitation, any
extension, renewal or refunding of Debt)
except the Notes and:
(i) Debt of a Restricted
Subsidiary owing to the Company or any
other Restricted Subsidiary and Debt of
the Company owing to a Restricted
Subsidiary;
(ii) Debt of the Company or such
Restricted Subsidiary existing on the
Closing Date and described on Annex 3;
(iii) Debt under the Bank
Credit Agreement and Guaranties thereof
and of the Notes by Restricted
Subsidiaries;
(iv) the GTCR Subordinated Debt;
(v) Capitalized Lease Obligations
in an amount not in excess of Five
Million Dollars ($5,000,000) in the
aggregate outstanding at such time;
(vi) additional Debt of the Company
or any Restricted Subsidiary incurred
prior to the Amendment No. 4 Effective
Date and not otherwise permitted under
this paragraph 8F, provided that
immediately after giving effect thereto
and to the application of the proceeds
thereof, no Default (other than a
Default under paragraph 9A(vi) or
paragraph 9A(xiii)) or Event of Default
existed; and
(vii) additional Debt of the
Company or any Restricted Subsidiary not
otherwise permitted under this paragraph
8F, provided that (a) such Debt is
incurred after the Amendment No. 4
Effective Date, (b) immediately after
giving effect thereto and to the
application of the proceeds thereof, no
Default (other than a Default under
paragraph 9A(vi) or paragraph 9A(xiii))
or Event of Default shall exist, (c)
such Debt shall not mature before the
first anniversary of the Amendment No. 4
Effective Date, and (d) no interest
shall be payable thereon in cash or
other tangible Property before the first
anniversary of the Amendment No. 4
Effective Date.
8G. Liens. The Company will not, and
will not permit any Restricted Subsidiary to,
create or permit to exist any Lien on any of
its Property, whether now owned or hereafter
acquired, except:
(i) Liens for taxes or other
governmental charges not at the time
delinquent or thereafter payable without
penalty or being contested in good faith
by appropriate proceedings and, in each
case, for which it maintains adequate
reserves;
(ii) Liens arising in the ordinary
course of business (such as (a) Liens of
carriers, warehousemen, mechanics and
materialmen and other similar Liens
imposed by law and (B) Liens incurred in
connection with workers' compensation,
unemployment compensation and other
types of social security (excluding
Liens arising under ERISA) or in
connection with surety and appeal bonds,
bids, performance bonds and similar
obligations) for sums not overdue or
being contested in good faith by
appropriate proceedings and not
involving any deposits or advances or
borrowed money or the deferred purchase
price of Property or services, and, in
each case, for which it maintains
adequate reserves;
(iii) (a) Liens existing on
the Closing Date and described in
Item 10.9 of Schedule II of the
Bank Credit Agreement, as in effect
on the date hereof, and
(b) Liens securing Senior Debt;
(iv) Liens arising in connection
with Capital Leases (to the extent
permitted hereunder);
(v) any Lien existing on the
Amendment No. 4 Effective Date that
arose in connection with the acquisition
of Property, provided that the aggregate
amount of all Debt secured by such Liens
shall not exceed Seven Million Dollars
($7,000,000);
(vi) attachments, judgments and
other similar Liens, for sums not
exceeding One Million Five Hundred
Thousand Dollars ($1,500,000), arising
in connection with court proceedings,
provided the execution or other
enforcement of such Liens is effectively
stayed and the claims secured thereby
are being actively contested in good
faith and by appropriate proceedings;
(vii) other Liens incidental to
the conduct of the business of the
Company or a Restricted Subsidiary or
the ownership of its Property, including
easements, rights of way, restrictions,
minor defects or irregularities in title
and other similar Liens, which Liens
were not incurred in connection with the
borrowing of money and do not, in any
case or in the aggregate, interfere in
any material respect with the ordinary
conduct of the business of the Company
or any Restricted Subsidiary;
(viii) building restrictions,
zoning laws and other statutes, laws,
rules, regulations, ordinances and
restrictions, and any amendments
thereto, now or at any time hereafter
adopted by any Governmental Authority
having jurisdiction;
(ix) any interest or title of a
lessor or secured by a lessor's interest
under any lease (other than a Capital
Lease);
(x) any Lien existing on the
Amendment No. 4 Effective Date in
connection with Permitted Acquisitions
provided that such acquisitions were
completed on or before the Amendment No.
4 Effective Date; and
(xi) other Liens existing on the
Amendment No. 4 Effective Date securing
obligations not at any time exceeding
$3,000,000 provided that such
obligations were incurred on or before
the Amendment No. 4 Effective Date.
8H. Mergers and Consolidations. The
Company will not, and will not permit any of
its Restricted Subsidiaries to, merge or
consolidate with or into any other Person
except:
(i) any Restricted Subsidiary may
merge or consolidate with or into the
Company, provided that the Company is
the continuing or surviving corporation
and immediately prior to, and
immediately after giving effect to, such
transaction, no Default or Event of
Default would exist; and
(ii) any wholly-owned Restricted
Subsidiary may merge or consolidate with
or into another wholly-owned Restricted
Subsidiary, provided that immediately
prior to, and immediately after giving
effect to, such transaction, no Default
or Event of Default would exist.
8K. Restricted Investments. The
Company will not, and will not permit any
Restricted Subsidiary to, at any time,
directly or indirectly, make any Restricted
Investment; provided, however, that the
Company and its Restricted Subsidiaries may
make Investments of the types described in
clauses (i) through (xiii), inclusive, of the
definition of "Restricted Investments,"
subject to the limitations set forth therein.
Each Person which becomes a Restricted
Subsidiary after the Closing Date will be
deemed to have made, on the date such Person
becomes a Restricted Subsidiary, all
Restricted Investments of such Person in
existence on such date for purposes of
determining compliance with this paragraph
8K.
8M. Transactions with Affiliates.
Neither the Company nor any Restricted
Subsidiary shall, directly or indirectly,
enter into any transaction or series of
transactions, including, without limitation,
the purchase, sale, lease or exchange of
Property or the rendering of any service,
with any Affiliate thereof except for any
transaction or series of transactions which
is or are
(i) in the ordinary course of and
pursuant to the reasonable requirements
of the Company's or such Restricted
Subsidiary's business, and
(ii) in the aggregate for such
transaction or series of transactions
upon fair and reasonable terms no less
favorable to the Company or such
Restricted Subsidiary than would obtain
in a comparable arm's-length transaction
or series of transactions with a Person
not an Affiliate thereof.
Payments to GTCR, Inc. in accordance with the
management agreement between GTCR, Inc. and
the Company shall be deemed to be in
compliance with this paragraph 8M, provided
that the aggregate amount paid to GTCR, Inc.
pursuant thereto, together with all other
payments made by the Company or any of its
Subsidiaries to GTCR, Inc., GTCR LP, or any
of their respective Affiliates (other than
the Company, its Restricted Subsidiaries and
Persons in which GTCR, Inc. or GTCR LP has
made an investment for portfolio purposes),
or any officer, director, shareholder or
other equity owner, employee, manager, or
agent of GTCR, Inc., GTCR LP or any of such
Affiliates, during any fiscal year of the
Company does not exceed One Hundred Seventy-
Five Thousand Dollars ($175,000) plus actual
out-of-pocket expenses related to such
services.
8N. Capital Expenditures. The Company
will not permit during any fiscal year of the
Company Consolidated Capital Expenditures to
exceed the Maximum Capital Expenditure Amount
for such fiscal year. For purposes of this
paragraph 8N, "Maximum Capital Expenditure
Amount" means (x) with respect to fiscal year
2001, $16,500,000 (less amounts attributable
to assets sold or disposed of by the Company
and its Subsidiaries as shown on the Capital
Expenditure Schedule delivered to the
Purchaser by the Company on the Amendment No.
4 Effective Date) and (y) with respect to any
succeeding fiscal year of the Company,
$11,000,000.
8O. Minimum EBITDA. The Company will
not permit EBITDA for the period April 1,
2001 through any date set forth below to be
less than the amount set forth below opposite
such date:
Date EBITDA
Amount
Three month period ending June $4,950,000
30, 2001
Six month period ending $11,250,000
September 30, 2001
Nine month period ending $13,950,000
December 31, 2001
Twelve month period ending $14,850,000
March 31, 2002
6. Paragraphs 12A and 12B of the Existing Note Purchase
Agreement are hereby amended and restated in their entirety to
read as follows:
12A. Subordination - General. Each holder of
the Notes and the Company covenant and agree that
the Debt evidenced by the Notes, including
principal, Yield-Maintenance Amount, if any, and
interest, and expenses payable pursuant to
paragraph 14B, shall be subordinate and junior in
right of payment to the extent set forth in
subparagraphs (i) to (v), below, to all Senior
Debt.
(i) If the Company shall default in the
payment of any principal of or interest on
any Senior Debt when the same becomes due and
payable, whether at maturity or at a date
fixed for prepayment or by declaration of
acceleration or otherwise, then, unless and
until such default shall have been remedied
by payment in full in cash or waived, no
holder of the Notes shall accept or receive
any direct or indirect payment for or on
account of principal of, or Yield-Maintenance
Amount, if any, or interest on, the Notes.
(ii) In the event of any insolvency,
bankruptcy, liquidation, reorganization or
other similar proceedings, or any
receivership proceedings in connection
therewith, relative to the Company, and in
the event of any proceedings for voluntary
liquidation, dissolution or other winding up
of the Company, whether or not involving
insolvency or bankruptcy proceedings, then
all Senior Debt shall first be paid in full
in cash before any payment is made by the
Company for or on account of principal of, or
Yield-Maintenance Amount, if any, or interest
on, the Notes.
(iii) During the existence of any default described in
subparagraph (i) above or any proceeding referred to in
subparagraph (ii) above, any payment or distribution of any kind
or character, whether in cash, Property, stock or obligations,
which may be payable or deliverable by the Company in respect of
the Notes, shall be paid or delivered directly to the Agent (or,
if the Bank Credit Agreement is no longer in effect, to a banking
institution selected by the court or Person making the payment or
delivery or designated by any holder of Senior Debt) for
application in payment thereof in accordance with the priorities
then existing among such holders, unless and until all Senior
Debt shall have been paid in full in cash, provided, however,
that no such delivery shall be made to holders of Senior Debt of
stock or obligations which are issued pursuant to reorganization
proceedings if such stock or obligations are subordinate and
junior (whether by law or agreement) at least to the extent
provided herein to the payment of all Senior Debt then
outstanding and to the payment of any stock or obligations which
are issued in exchange or substitution for any Senior Debt then
outstanding.
(iv) No holder of the Notes shall accept or receive any direct or
indirect payment by set-off or otherwise, for or on account of
the Notes (unless it shall comply with paragraph 12A(v)),
(a) during the period (the
"Initial Stand-Still Period") commencing
on the Amendment No. 4 Effective Date
to, but excluding, the first anniversary
of such date, or
(b) during a period subsequent to the Initial
Stand-Still Period (a "Subsequent Stand-Still
Period" and, together with the Initial Stand-Still
Period, a "Stand-Still Period") commencing on the
date of receipt by the Company and the Significant Holders
of a Stand-Still Notice, and ending on the earliest of
(I) the date the relevant
Subordination Event of Default
shall have been cured or waived in
writing by the requisite holders of
the Senior Debt,
(II) the date such Stand-Still
Period shall have been terminated
by written notice to the Company
from the requisite holders of the
Senior Debt, and
(III) the date ninety (90)
days from the date of receipt of
the applicable Stand-Still Notice.
Notwithstanding the foregoing, (x) during the
period from and including the first
anniversary of the Amendment No. 4 Effective
Date to, but excluding, the same date of the
sixth calendar month following such
anniversary, no Stand-Still Period shall be
in effect, (y) during any three hundred sixty-
five (365) day period, the aggregate number
of days during which a Subsequent Stand-Still
Period may be in effect shall not exceed one
hundred eighty (180) days, and (z) in the
case of any payment for or on account of any
Note which would (in the absence of the
foregoing clause (a) or the delivery of any
such Stand-Still Notice, as the case may be)
have been due and payable on any date during
any Stand-Still Period, the provisions of
this subparagraph (iv) shall not prevent such
payment from being made on or after the date
immediately following the last day of such
Stand-Still Period unless another Stand-Still
Period shall then be in effect.
(v) If any payment or distribution of
any character, whether in cash, Securities or
other Property, shall be received by any
holder of Notes in contravention of any of
the terms herein and before all the Senior
Debt shall have been paid in full in cash,
such payment or distribution shall be
received in trust for the benefit of the
holders of the Senior Debt at the time
outstanding and shall forthwith be paid over
or transferred to the Agent (or, if the Bank
Credit Agreement is no longer in effect, to
the holders of Senior Debt).
12B. Limitation on Remedies. So long as any
Senior Debt remains outstanding, no holder of
Notes may
(i) declare or join in the declaration of the Notes to be due
and payable or otherwise accelerate the maturity of the principal
of the Notes, accrued interest thereon or other amounts due in
respect thereof, or
(ii) commence any administrative, legal or equitable action
against the Company, including filing or joining in the filing of
any insolvency petition against the Company,
prior to the earlier of
(x) the fifteenth (15th) day after the date upon which any
holder of the Notes shall have given written notice to the
holders of Senior Debt (or the Agent) of their intention to take
such action, or
(y) the acceleration of any Senior Debt;
provided, however, that no holder of any Notes may
take any action described in clause (i) or clause
(ii) of this paragraph 12B during the first six
months of the Initial Stand-Still Period (but may
take such action at any time thereafter during the
Initial Stand-Still Period upon the earlier to
occur of the times specified in clauses (x) and
(y) of this paragraph 12B), or during any
Subsequent Stand-Still Period, so long as, in
either case, the Senior Debt shall not have been
accelerated during any such Stand-Still Period.
7. The following portions of the definition of "Restricted
Investment" in Paragraph 13B of the Existing Note Purchase
Agreement are hereby deleted:
(a) In clause (vi) of such definition,
clause (b) is amended and restated in its entirety
to read as follows:
(b) to finance the purchase of stock of the
Company or any Restricted Subsidiary in an
amount not in excess (in addition to any such
loans and advances permitted under clause
(i)) of One Million Dollars ($1,000,000) in
the aggregate to the extent, but only to the
extent, such loans or advances were
outstanding on the Amendment No. 4 Effective
Date;
(b) In clause (xi) of such definition, there
is hereby deleted "Permitted Acquisitions" and
there is substituted therefor "[intentionally
omitted]".
8. The following definitions are hereby added to Paragraph 13B
of the Existing Note Purchase Agreement in their respective
alphabetical order thereof to read as follows:
"Amendment No. 4" means Amendment No. 4 to
this Agreement dated as of April 18, 2001 between
the Company and the Purchaser.
"Amendment No. 4 Effective Date" has the
meaning ascribed to it in Amendment No. 4.
"GTCR Subordinated Debt" means the debt
junior to the Notes contemplated by the commitment
letter of GTCR LP and its Affiliates to the
Company in the form attached as Exhibit D to
Amendment No. 4.
"2001 Note" has the meaning ascribed to it in Amendment
No. 4.
"2001 Warrants" has the meaning assigned to
it in Amendment No. 4.
9. The Existing Note Purchase Agreement is amended by deleting
therefrom the current forms of Exhibit A1 and Exhibit A2 thereto
and replacing them with Exhibit A1 and Exhibit A2, respectively,
attached hereto.
10. The Existing Note Purchase Agreement is amended by adding a
new Exhibit A3, attached hereto.
EXHIBIT A
PART 2
AMENDMENTS TO NOTES
1. The 1996 Notes outstanding on the Amendment No. 4 Effective
Date are hereby, without any further action required on the part
of any other Person, deemed to be automatically amended to
conform to and have the terms provided in Exhibit A1 attached
hereto (except that the principal amount and the payee of each
Note shall remain unchanged). Any 1996 Note issued on or after
the Amendment No. 4 Effective Date shall be in the form of
Exhibit A1 attached hereto.
2. The 1998 Notes outstanding on the Amendment No. 4 Effective
Date are hereby, without any further action required on the part
of any other Person, deemed to be automatically amended to
conform to and have the terms provided in Exhibit A2 attached
hereto (except that the principal amount and the payee of each
Note shall remain unchanged). Any 1998 Note issued on or after
the Amendment No. 4 Effective Date shall be in the form of
Exhibit A2 attached hereto.
3. The 2001 Note is hereby added as a new note to the Existing
Note Purchase Agreement and shall have the terms provided in
Exhibit A3 attached hereto.
EXHIBIT A1
[FORM OF SENIOR SUBORDINATED NOTE - 1996 NOTE]
U.S. AGGREGATES, INC.
Senior Subordinated Note Due November 22, 2006
No. S-___ PPN: 90345@ AA 1
$________ [Date]
U.S. AGGREGATES, INC., a Delaware corporation (together with
its successors, the "Company"), for value received, hereby
promises to pay to ___________ or registered assigns the
principal sum of ____________ DOLLARS ($________), together with
all Capitalized Interest Amounts (as hereinafter defined), or, if
less, the unpaid principal amount of this Note, on November 22,
2006, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid principal balance
hereof from the date of this Note until the principal amount
hereof shall become due and payable, at the rate of (i) at all
times prior to but excluding September 29, 2000, ten and thirty-
four one- hundredths percent (10.34%) per annum, (ii) at all
times from and including September 29, 2000 to (but excluding)
the Amendment No. 4 Effective Date, fourteen percent (14%) per
annum (payable to the extent of up to 2% per annum by adding
interest not paid in cash to the principal amount of this Note),
and (iii) at all times from and including the Amendment No. 4
Effective Date, sixteen percent (16%) per annum, payable
quarterly on the twenty-second (22nd) day of February, May,
August and November (each an "Interest Payment Date") in each
year, commencing on the first Interest Payment Date occurring
after the date of this Note, and to pay on demand interest on any
overdue principal (including any overdue prepayment), any overdue
payment of Yield-Maintenance Amount, if any, or (to the extent
permitted by applicable law) any overdue installment of interest
(the due date of such payments to be determined without giving
effect to any grace period) and, if an Event of Default under the
Note Agreement shall have occurred and be continuing, on the
entire outstanding principal amount hereof, at the rate per annum
equal to the lesser of (a) the highest rate allowed by applicable
law or (b) the greater of (i) eighteen percent (18%), or (ii) two
percent (2%) over the rate of interest publicly announced by
Xxxxxx Guaranty Trust Company in New York City from time to time
as its prime rate.
On any Interest Payment Date on or after the Amendment No. 4
Effective Date through (but excluding) the first anniversary
thereof, in lieu of making the entire interest payment on this
Note in cash, the Company may, at its option:
(a) pay on such Interest Payment Date, in cash, none,
any part or all of the interest accrued on such principal to
such Interest Payment Date; and
(b) add to the outstanding principal amount of such
Notes on such Interest Payment Date the portion of such
interest which is not paid in cash pursuant to the
immediately preceding clause (a) (each such addition with
respect to this Note, and each addition pursuant to the next
succeeding paragraph, a "Capitalized Interest Amount").
On any Interest Payment Date on or after the first
anniversary of the Amendment No. 4 Effective Date, in lieu of
making the entire interest payment on this Note in cash, the
Company shall pay on such Interest Payment Date, in cash, that
portion of the interest accrued on the outstanding principal
amount of such Note to such Interest Payment Date as would have
accrued at the rate of fourteen percent (14.00%) per annum; and,
at the Company's option, both
(x) pay on such Interest Payment Date, in cash, none,
any part or all of the interest accrued on such principal to
such Interest Payment Date as would have accrued at the rate
of two percent (2%) per annum; and
(y) add, as a Capitalized Interest Amount, to the
outstanding principal amount of such Notes on such Interest
Payment Date the portion of such interest as would have
accrued at the rate of two percent (2%) per annum which is
not paid in cash pursuant to the immediately preceding
clause (x).
Interest shall begin to accrue on each Capitalized Interest
Amount beginning on and including the Interest Payment Date on
which such Capitalized Interest Amount is added to the principal
amount of this Note, and such interest shall accrue and be paid,
together with the interest on the remaining principal amount of
this Note, in accordance with this Note. Notwithstanding
anything herein to the contrary, all interest due and payable on
the date that the entire then outstanding principal amount of
this Note becomes due and payable, whether on the maturity date
hereof, by acceleration or otherwise, shall be due and payable in
full in cash on such date. All Capitalized Interest Amounts will
for all purposes of this Note and the Note Agreement constitute
outstanding principal on this Note.
Payments of principal, Yield-Maintenance Amount, if any, and
interest shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts to the registered holder
hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note
Agreement.
This Note is one of an issue of Senior Subordinated Notes
due November 22, 2006 issued in an original aggregate principal
amount of Thirty Million Dollars ($30,000,000) (which amount may
be increased by any Capitalized Interest Amounts) pursuant to the
Amended and Restated Note and Warrant Purchase Agreement (as
amended and as may be further amended from time to time, the
"Note Agreement"), dated as of June 5, 1998, between the Company
and The Prudential Insurance Company of America. Capitalized
terms used herein and not defined herein have the meanings
specified in the Note Agreement.
As provided in the Note Agreement, this Note is subject to
prepayment, in whole or from time to time in part, in certain
cases without premium and in other cases with a premium as
specified in the Note Agreement.
This Note is a registered note and, as provided in the Note
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
The obligations evidenced by this Note are subordinated to
the Senior Debt on the terms provided in the Note Agreement and
the holder hereof, by acceptance hereof, agrees to be bound by
the subordination provisions in the Note Agreement.
THIS NOTE IS GIVEN IN SUBSTITUTION AND WITHOUT NOVATION OF A
PROMISSORY NOTE DATED NOVEMBER 21, 1996 AND ISSUED BY U.S.
AGGREGATES, INC.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
U.S. AGGREGATES, INC.
By:
Name:
Title:
EXHIBIT A2
[FORM OF SENIOR SUBORDINATED NOTE - 1998 NOTE]
U.S. AGGREGATES, INC.
Senior Subordinated Note Due November 22, 2008
No. S-___ PPN: 90345@ AB 9
$________ [Date]
U.S. AGGREGATES, INC., a Delaware corporation (together with
its successors, the "Company"), for value received, hereby
promises to pay to ___________ or registered assigns the
principal sum of ____________ DOLLARS ($________), together with
all Capitalized Interest Amounts (as hereinafter defined), or, if
less, the unpaid principal amount of this Note, on November 22,
2008, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid principal balance
hereof from the date of this Note until the principal amount
hereof shall become due and payable, at the rate of (i) at all
times prior to but excluding September 29, 2000, ten and nine
hundredths percent (10.09%) per annum, (ii) at all times from and
including September 29, 2000 to (but excluding) the Amendment No.
4 Effective Date, fourteen percent (14%) per annum (payable to
the extent of up to 2% per annum by adding interest not paid in
cash to the principal amount of this Note) and (iii) at all times
from and including the Amendment No. 4 Effective Date, sixteen
percent (16%) per annum, payable quarterly on the twenty-second
(22nd) day of February, May, August and November (each an
"Interest Payment Date") in each year, commencing on the first
Interest Payment Date occurring after the date of this Note, and
to pay on demand interest on any overdue principal (including any
overdue prepayment), any overdue payment of Yield-Maintenance
Amount, if any, and (to the extent permitted by applicable law)
any overdue installment of interest (the due date of such
payments to be determined without giving effect to any grace
period) and, if an Event of Default under the Note Agreement
shall have occurred and be continuing, on the entire outstanding
principal amount hereof, at the rate per annum equal to the
lesser of (a) the highest rate allowed by applicable law or (b)
the greater of (i) eighteen percent (18%), or (ii) two percent
(2%) over the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company in New York City from time to time as its
prime rate.
On any Interest Payment Date on or after the Amendment No. 4
Effective Date through (but excluding) the first anniversary
thereof, in lieu of making the entire interest payment on this
Note in cash, the Company may, at its option:
(a) pay on such Interest Payment Date, in cash, none,
any part or all of the interest accrued on such principal to
such Interest Payment Date; and
(b) add to the outstanding principal amount of such
Notes on such Interest Payment Date the portion of such
interest which is not paid in cash pursuant to the
immediately preceding clause (a) (each such addition with
respect to this Note, and each addition pursuant to the next
succeeding paragraph, a "Capitalized Interest Amount").
On any Interest Payment Date on or after the first
anniversary of the Amendment No. 4, in lieu of making the entire
interest payment on this Note in cash, the Company shall pay on
such Interest Payment Date, in cash, that portion of the interest
accrued on the outstanding principal amount of such Note to such
Interest Payment Date as would have accrued at the rate of
fourteen percent (14.00%) per annum; and, at the Company's
option, both
(x) pay on such Interest Payment Date, in cash, none,
any part or all of the interest accrued on such principal to
such Interest Payment Date as would have accrued at the rate
of two percent (2%) per annum; and
(y) add, as a Capitalized Interest Amount, to the
outstanding principal amount of such Notes on such Interest
Payment Date the portion of such interest as would have
accrued at the rate of two percent (2%) per annum which is
not paid in cash pursuant to the immediately preceding
clause (x).
Interest shall begin to accrue on each Capitalized Interest
Amount beginning on and including the Interest Payment Date on
which such Capitalized Interest Amount is added to the principal
amount of this Note, and such interest shall accrue and be paid,
together with the interest on the remaining principal amount of
this Note, in accordance with this Note. Notwithstanding
anything herein to the contrary, all interest due and payable on
the date that the entire then outstanding principal amount of
this Note becomes due and payable, whether on the maturity date
hereof, by acceleration or otherwise, shall be due and payable in
full in cash on such date. All Capitalized Interest Amounts will
for all purposes of this Note and the Note Agreement referred to
below constitute outstanding principal on this Note.
Payments of principal, Yield-Maintenance Amount, if any, and
interest shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts to the registered holder
hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note
Agreement.
This Note is one of an issue of Senior Subordinated Notes
due November 22, 2008 issued in an original aggregate principal
amount of Fifteen Million Dollars ($15,000,000) (which amount may
be increased by any Capitalized Interest Amounts) pursuant to the
Amended and Restated Note and Warrant Purchase Agreement (as
amended and as may be further amended from time to time, the
"Note Agreement"), dated as of June 5, 1998, between the Company
and The Prudential Insurance Company of America. Capitalized
terms used herein and not defined herein have the meanings
specified in the Note Agreement.
As provided in the Note Agreement, this Note is subject to
prepayment, in whole or from time to time in part, in certain
cases without premium and in other cases with a premium as
specified in the Note Agreement.
This Note is a registered note and, as provided in the Note
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
The obligations evidenced by this Note are subordinated to
the Senior Debt on the terms provided in the Note Agreement and
the holder hereof, by acceptance hereof, agrees to be bound by
the subordination provisions in the Note Agreement.
THIS NOTE IS GIVEN IN SUBSTITUTION AND WITHOUT NOVATION OF A
PROMISSORY NOTE DATED JUNE 5, 1998 AND ISSUED BY U.S. AGGREGATES,
INC.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
U.S. AGGREGATES, INC.
By:
Name:
Title:
EXHIBIT A3
[FORM OF SENIOR SUBORDINATED NOTE - 2001 NOTE]
U.S. AGGREGATES, INC.
Senior Subordinated Note Due April 18, 2002
No. RC-___ PPN: 90345@ AC 7
$________ [Date]
U.S. AGGREGATES, INC., a Delaware corporation (together with
its successors, the "Company"), for value received, hereby
promises to pay to ___________ or registered assigns the
principal sum of ____________ DOLLARS ($________), together with
all Capitalized Interest Amounts (as hereinafter defined), or, if
less, the unpaid principal amount of this Note, on April 18,
2002, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid principal balance
hereof from the date of this Note until the principal amount
hereof shall become due and payable, at the rate of sixteen
percent (16%) per annum, payable quarterly on the twenty-second
(22nd) day of February, May, August and November (each an
"Interest Payment Date") in each year, commencing on the first
Interest Payment Date occurring after the date of this Note, and
at maturity, and to pay on demand interest on any overdue
principal (including any overdue prepayment), any overdue payment
of Yield-Maintenance Amount, if any, or (to the extent permitted
by applicable law) any overdue installment of interest (the due
date of such payments to be determined without giving effect to
any grace period), and, if an Event of Default under the Note
Agreement shall have occurred and be continuing, on the entire
outstanding principal amount hereof, at the rate per annum equal
to the lesser of (a) the highest rate allowed by applicable law
or (b) the greater of (i) eighteen percent (18%), or (ii) two
percent (2%) over the rate of interest publicly announced by
Xxxxxx Guaranty Trust Company in New York City from time to time
as its prime rate.
On any Interest Payment Date occurring on or after the date
hereof through (but excluding) the maturity date hereof, in lieu
of making the entire interest payment on this Note in cash, the
Company may, at its option:
(a) pay on such Interest Payment Date, in cash, none,
any part or all of the interest accrued on such principal to
such Interest Payment Date; and
(b) add to the outstanding principal amount of such
Notes on such Interest Payment Date the portion of such
interest which is not paid in cash pursuant to the
immediately preceding clause (a) (each such addition with
respect to this Note, a "Capitalized Interest Amount").
Interest shall begin to accrue on each Capitalized Interest
Amount beginning on and including the Interest Payment Date on
which such Capitalized Interest Amount is added to the principal
amount of this Note, and such interest shall accrue and be paid,
together with the interest on the remaining principal amount of
this Note, in accordance with this Note. Notwithstanding
anything herein to the contrary, all interest due and payable on
the date that the entire then outstanding principal amount of
this Note becomes due and payable, whether on the maturity date
hereof, by acceleration or otherwise, shall be due and payable in
full in cash on such date. All Capitalized Interest Amounts will
for all purposes of this Note and the Note Agreement constitute
outstanding principal on this Note.
Payments of principal, Yield-Maintenance Amount, if any, and
interest shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
the payment of public and private debts to the registered holder
hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note
Agreement.
This Note is one of an issue of Senior Subordinated Notes
due April 18, 2002 issued in an original aggregate principal
amount of Nine Hundred Thousand Dollars ($900,000) (which amount
may be increased by any Capitalized Interest Amounts) pursuant to
Amendment No. 4, dated as of the Amendment No. 4 Effective Date,
to the Amended and Restated Note and Warrant Purchase Agreement
(as amended and as may be further amended from time to time, the
"Note Agreement"), dated as of June 5, 1998, between the Company
and The Prudential Insurance Company of America. Capitalized
terms used herein and not defined herein have the meanings
specified in the Note Agreement.
As provided in the Note Agreement, this Note is subject to
prepayment, in whole or from time to time in part, in certain
cases without premium and in other cases with a premium as
specified in the Note Agreement.
This Note is a registered note and, as provided in the Note
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument
of transfer duly executed, by the registered holder hereof or
such holder's attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in
whose name this Note is registered as the owner hereof for the
purpose of receiving payment and for all other purposes, and the
Company shall not be affected by any notice to the contrary.
The obligations evidenced by this Note are subordinated to
the Senior Debt on the terms provided in the Note Agreement and
the holder hereof, by acceptance hereof, agrees to be bound by
the subordination provisions in the Note Agreement.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
U.S. AGGREGATES, INC.
By:
Name:
Title:
EXHIBIT B
[FORM OF GUARANTOR CONSENT]
Dated: As of April 18, 2001
Reference is made to that certain Amended and Restated Note
and Warrant Purchase Agreement, dated as of June 5, 1998 (the
"Note Purchase Agreement"), between U.S. Aggregates, Inc. (the
"Company") and The Prudential Insurance Company of America (the
"Noteholder"), pursuant to which $30,000,000 principal amount of
Senior Subordinated Notes due November 22, 2006 and $15,000,000
principal amount of Senior Subordinated Notes due November 22,
2008 (together with the 2001 Note (as defined in the Amended Note
Purchase Agreement), the "Notes") of the Company have been issued
to the Noteholder and are currently outstanding. Capitalized
terms used herein and defined in the Amended Note Purchase
Agreement (as defined below) are used herein with the meanings
ascribed to them in the Amended Note Purchase Agreement. The
Note Purchase Agreement was amended pursuant to the terms of (i)
an Amendment No. 1 to the Amended and Restated Note and Warrant
Purchase Agreement dated as of April 14, 1999; (ii) an Amendment
No. 2 to the Amended and Restated Note and Warrant Purchase
Agreement dated as of August 12, 1999; and (iii) an Amendment No.
3 to the Amended and Restated Note and Warrant Purchase Agreement
dated as of September 29, 2000 (as in effect immediately prior to
giving effect to the amendments provided for in Amendment No. 4
to the Amended and Restated Note and Warrant Purchase Agreement,
the "Existing Note Purchase Agreement" and, as amended pursuant
to Amendment No. 4 to the Amended and Restated Note and Warrant
Purchase Agreement and as may be further amended, restated or
otherwise modified from time to time, the "Amended Note Purchase
Agreement"). The Existing Note Purchase Agreement and the Notes
are being amended pursuant to the terms of Amendment No. 4 to the
Note Purchase Agreement dated as of April 18, 2001 (the "Fourth
Amendment Agreement").
Each of the undersigned Restricted Subsidiaries (each, a
"Guarantor") is a party to the Subsidiary Guaranty entered into
in connection with the execution and delivery of the Note
Purchase Agreement and the issuance and sale of the Notes. Each
Guarantor hereby consents to the Fourth Amendment Agreement and
acknowledges and affirms all of its obligations under the terms
of the Subsidiary Guaranty, and specifically agrees that the
Subsidiary Guaranty applies to the 2001 Note and that all amounts
owing in respect of the 2001 Note are "Guaranteed Obligations"
(as such term is defined in the Subsidiary Guaranty).
[Remainder of page intentionally left blank. Next page is
signature page.]
IN WITNESS WHEREOF, each Guarantor has caused this Guarantor
Consent to be executed on its behalf, as of the date first above
written, by one of its duly authorized officers.
SRM HOLDINGS CORP.
By
Name: Xxxxxx X. Xxxxxx,Xx.
Title: Vice President
SRM AGGREGATES, INC.
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
WESTERN AGGREGATES
HOLDING CORP.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
WESTERN ROCK PRODUCTS
CORPORATION
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXX ROCK PRODUCTS,
INCORPORATED
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
XXX TRANSPORT CORPORATION
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
XXXXXX CONSTRUCTION &
DEVELOPMENT, INC.
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
SANDIA CONSTRUCTION, INC.
By
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NEVADA AGGREGATES, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
MOHAVE CONCRETE AND
MATERIALS, INC. (NEVADA)
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
MOHAVE CONCRETE AND
MATERIALS, INC. (ARIZONA)
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
A-BLOCK COMPANY, INC.
(ARIZONA)
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
A-BLOCK COMPANY, INC.
(CALIFORNIA)
By
Name: Xxxxxxx X. Xxxxxxx
Title: President
VALLEY ASPHALT, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
DEKALB STONE, INC.
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
GEODYNE XXXX ROCK PRODUCTS,
INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
WESTERN AGGREGATES, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
EAGLE VALLEY MATERIALS, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
MULBERRY ROCK CORPORATION
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
BHY READY MIX, INC.
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
XXXXXXX XXXXX & SAND, INC.
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
TRI-STATE TESTING
LABORATORIES, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
GROVE MATERIALS CORPORATION
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
BAMA CRUSHED CORPORATION
By
Name: Xxxxxxxx X. Xxxx, Xx.
Title: President
MONROC, INC.
By
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
EXHIBIT C
[COPY OF EXECUTED SIXTH BANK AMENDMENT]
EXHIBIT D
[COPY OF GTCR COMMITMENT]
SCHEDULE 6.2
Outstanding Principal Amounts of Existing Notes as of Amendment
No. 4 Effective Date
Note/Series Purchaser New Principal Amount
R-1/1996 The Prudential Insurance Company $30,820,291.82
of America
S-1/1998 The Prudential Insurance Company $15,410,145.91
of America
