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U.S. AGGREGATES, INC.
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AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
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DATED AS OF JUNE 5, 1998
$30,000,000 10.34% SENIOR SUBORDINATED NOTES DUE NOVEMBER 22, 2006
OF U.S. AGGREGATES, INC.
$15,000,000 10.09% SENIOR SUBORDINATED NOTES DUE NOVEMBER 22, 2008
OF U.S. AGGREGATES, INC.
9,535 WARRANTS TO PURCHASE COMMON STOCK
OF U.S. AGGREGATES, INC.
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TABLE OF CONTENTS
(Not Part of Agreement)
PAGE
1. BACKGROUND............................................................. 1
2. AMENDMENT AND RESTATEMENT OF 1996 PURCHASE AGREEMENT................... 2
2A. Agreement and Consent of the Company............................. 2
2B. Agreement and Consent of the Purchaser........................... 2
3. AUTHORIZATION OF ISSUE OF 1998 NOTES AND 1998 WARRANTS................. 2
4. PURCHASE AND SALE OF 1998 NOTES AND 1998 WARRANTS...................... 2
5. CONDITIONS OF CLOSING.................................................. 3
5A. Opinion of Purchaser's Special Counsel........................... 3
5B. Opinion of Company's Counsel; Opinion of Each Guarantor's
Local Counsel.................................................... 4
5C. Representations and Warranties; No Default....................... 4
5D. Purchase Permitted By Applicable Laws............................ 4
5E. 1998 Warrant Agreement; Registration Rights Agreement;
Charter Amendment, etc........................................... 4
5F. Subsidiary Guaranty.............................................. 5
5G. Bank Credit Agreement............................................ 5
5H. Private Placement Numbers........................................ 5
5I. Closing Expenses................................................. 5
5J. Transaction Structuring Fee...................................... 5
5K. Merger Agreement and Related Documents........................... 5
5L. Proceedings Satisfactory......................................... 5
6. PREPAYMENTS............................................................ 6
6A. Required Prepayments............................................. 6
6B. Optional Prepayment With Yield-Maintenance Amount................ 6
6C. Offer to Pay upon Change in Control.............................. 7
6D. Application of Prepayments....................................... 8
6E. No Acquisition of Notes.......................................... 8
6F. Limitations on Payments and Prepayments.......................... 8
7. AFFIRMATIVE COVENANTS.................................................. 8
7A. Financial Statements............................................. 8
7B. Inspection of Property........................................... 10
7C. Covenant to Secure Notes Equally................................. 11
7D. Payment of Taxes and Claims...................................... 11
7E. Maintenance of Properties and Corporate Existence................ 11
7F. Pension Plans.................................................... 12
7G. Payment of Notes and Maintenance of Office....................... 12
7H. Private Offering................................................. 12
7I. Line of Business................................................. 12
U.S. AGGREGATES, INC. i AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
7J. Subsidiary Guaranties............................................ 13
8. NEGATIVE COVENANTS..................................................... 13
8A. Interest Expense Coverage........................................ 13
8B. Fixed Charge Coverage............................................ 13
8C. Leverage Ratio................................................... 13
8D. Rental Obligations............................................... 14
8E. Restricted Payments.............................................. 14
8F. Debt Restrictions................................................ 15
8G. Liens............................................................ 15
8H. Mergers and Consolidations....................................... 16
8I. Sale of Assets; Disposal of Ownership and Debt of a
Restricted Subsidiary............................................ 17
8J. Limitations on Certain Subsidiary Actions........................ 20
8K. Restricted Investments........................................... 20
8L. Limitation on the Sale of Receivables............................ 21
8M. Transactions with Affiliates..................................... 21
9. EVENTS OF DEFAULT...................................................... 21
9A. Acceleration..................................................... 21
9B. Rescission of Acceleration....................................... 24
9C. Notice of Acceleration or Rescission............................. 24
9D. Other Remedies................................................... 24
10. REPRESENTATIONS, COVENANTS AND WARRANTIES.............................. 25
10A. Organization..................................................... 25
10B. Financial Statements............................................. 25
10C. Actions Pending.................................................. 26
10D. Outstanding Debt................................................. 26
10E. Title to Properties.............................................. 26
10F. Taxes............................................................ 26
10G. Transactions Authorized; Obligations are Enforceable............. 26
10H. Conflicting Agreements and Other Matters......................... 27
10I. Offering of 1998 Notes and 1998 Warrants......................... 28
10J. Use of Proceeds.................................................. 28
10K. ERISA............................................................ 28
10L. Governmental Consent............................................. 28
10M. Environmental Compliance......................................... 29
10N. Disclosure....................................................... 29
10O. Capitalization................................................... 29
11. REPRESENTATIONS OF THE PURCHASER....................................... 30
11A. Nature of Purchase............................................... 30
11B. ERISA............................................................ 30
U.S. AGGREGATES, INC. ii AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
12. SUBORDINATION.......................................................... 31
12A. Subordination - General.......................................... 31
12B. Limitation on Remedies........................................... 33
12C. Obligations of the Company Unconditional......................... 33
12D. Subrogation...................................................... 33
12E. Certain Definitions.............................................. 34
13. DEFINITIONS............................................................ 35
13A. Yield-Maintenance Terms.......................................... 35
13B. Other Terms...................................................... 36
13C. Accounting Principles, Terms and Determinations.................. 49
14. MISCELLANEOUS.......................................................... 50
14A. Note Payments.................................................... 50
14B. Expenses......................................................... 50
14C. Consent to Amendments............................................ 50
14D. Form, Registration, Transfer and Exchange of Notes; Lost Notes... 51
14E. Persons Deemed Owners; Participations............................ 51
14F. Survival of Representations and Warranties; Entire Agreement..... 52
14G. Successors and Assigns........................................... 52
14H. Notices.......................................................... 52
14I. Payments Due on Non-Business Days................................ 52
14J. Disclosure to Other Persons...................................... 53
14K. Satisfaction Requirement......................................... 54
14L. Governing Law.................................................... 54
14M. Jurisdiction; Jury Trial......................................... 54
14N. Severability..................................................... 54
14O. Descriptive Headings............................................. 54
14P. Counterparts..................................................... 54
Annex 1 -- Purchaser Schedule
Annex 2 -- Payment Instructions at Closing
Annex 3 -- Information as to Company
Exhibit A1 -- Form of 10.34% Senior Subordinated Note Due November 22, 2006
Exhibit A2 -- Form of 10.09% Senior Subordinated Note Due November 22, 2008
Exhibit B1 -- Form of Company Counsel's Opinion
Exhibit B2 -- Forms of Guarantor Local Counsel Opinions
Exhibit C -- Form of Officer's Certificate
Exhibit D1 -- Form of Company Secretary's Certificate
Exhibit D2 -- Form of Subsidiary Secretary's Certificate
Exhibit E -- Form of Warrant Agreement
Exhibit F -- Form of First Amendment to Registration Rights Agreement
Exhibit G -- Form of Amended and Restated Subsidiary Guaranty
Exhibit H -- Form of Charter Amendment
U.S. AGGREGATES, INC. iii AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
U.S. AGGREGATES, INC.
------------------------------
AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
------------------------------
$30,000,000 10.34% SENIOR SUBORDINATED NOTES DUE NOVEMBER 22, 2006
OF U.S. AGGREGATES, INC.
$15,000,000 10.09% SENIOR SUBORDINATED NOTES DUE NOVEMBER 22, 2008
OF U.S. AGGREGATES, INC.
9,535 WARRANTS TO PURCHASE COMMON STOCK
OF U.S. AGGREGATES, INC.
Dated as of June 5, 1998
To the Purchaser Named in the
Purchaser Schedule Attached Hereto
Ladies and Gentlemen:
The undersigned, U.S. AGGREGATES, INC., a Delaware corporation (herein
called the "Company"), hereby agrees with the purchaser named in the Purchaser
Schedule attached hereto (herein called the "Purchaser") as follows:
1. BACKGROUND.
The Company has heretofore issued (a) its 10.34% Senior Subordinated Notes
due November 22, 2006 (collectively, as in effect immediately prior to the
Closing Date, the "1996 Notes") in the aggregate original principal amount of
Thirty Million Dollars ($30,000,000) and (b) an aggregate of Six Thousand Three
Hundred Twenty-Seven (6,327) warrants (collectively, as in effect immediately
prior to the Closing Date, the "1996 Warrants"), pursuant to that certain Note
and Warrant Purchase Agreement (as amended and in effect immediately prior to
the Closing Date, the "1996 Purchase Agreement"), dated as of November 21, 1996,
between the Company and the Purchaser. The Company wishes to amend and restate
certain provisions of the 1996 Purchase Agreement on the terms and conditions
contained herein and, in connection therewith, authorize and issue additional
notes and warrants to the Purchaser, all as more particularly described herein.
2. AMENDMENT AND RESTATEMENT OF 1996 PURCHASE AGREEMENT.
2A. Agreement and Consent of the Company. The Company hereby agrees and
consents to the amendment and restatement in its entirety of the 1996 Purchase
Agreement by this Agreement.
U.S. AGGREGATES, INC. AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
2B. Agreement and Consent of the Purchaser. The Purchaser is the holder of
one hundred percent (100%) in aggregate principal amount of the 1996 Notes. The
Purchaser, subject to the satisfaction of the conditions precedent set forth in
paragraph 5, by its execution of this Agreement, agrees and consents to the
amendment and restatement in its entirety of the 1996 Purchase Agreement by this
Agreement and, upon the satisfaction or waiver of such conditions precedent, the
1996 Purchase Agreement shall be deemed amended and restated in the form of this
Agreement.
3. AUTHORIZATION OF ISSUE OF 1998 NOTES AND 1998 WARRANTS.
(i) Authorization of Issue of 1998 Notes. The Company will authorize
the issue of its senior subordinated promissory notes in the aggregate
principal amount of Fifteen Million Dollars ($15,000,000), to be dated the
date of issue thereof, to mature November 22, 2008, to bear interest,
payable quarterly in arrears, on the unpaid balance thereof from June 5,
1998 until the principal thereof shall have become due and payable at the
rate of ten and nine hundredths percent (10.09%) per annum and on overdue
payments at the rate specified therein, and to be substantially in the
form of Exhibit A2 hereto (the "1998 Notes"). The term "Notes" as used
herein shall include the 1996 Notes and the 1998 Notes. The obligations
evidenced by the Notes are subordinated to the Senior Debt pursuant to the
provisions of paragraph 12 hereof.
(ii) Authorization of Issue of 1998 Warrants. The Company will
authorize the issue of an aggregate of Three Thousand Two Hundred Eight
(3,208) warrants (the "1998 Warrants") to purchase shares of Common Stock
of the Company. The 1998 Warrants shall be issued pursuant to the Warrant
Agreement (the "1998 Warrant Agreement") in the form of Exhibit E hereto,
the certificates representing the 1998 Warrants (the "1998 Warrant
Certificates") shall be in the form of Attachment A to the 0000 Xxxxxxx
Agreement, and the 1998 Warrants shall have the terms provided in the 0000
Xxxxxxx Certificates and the 1998 Warrant Agreement.
4. PURCHASE AND SALE OF 1998 NOTES AND 1998 WARRANTS.
(i) Purchase and Sale of 1998 Notes and 1998 Warrants. The Company
hereby agrees to sell to the Purchaser and, subject to the terms and
conditions herein set forth, the Purchaser agrees to purchase from the
Company the aggregate principal amount of 1998 Notes set forth opposite
the Purchaser's name in the Purchaser Schedule attached hereto, together
with the aggregate amount of 1998 Warrants set forth opposite the
Purchaser's name in the Purchaser Schedule attached hereto, for an
aggregate consideration equal to Fifteen Million Dollars ($15,000,000).
The Company will deliver to the Purchaser, at the offices of Xxxx &
Xxxxxx, a professional corporation, at Xxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, one or more 1998 Notes registered in the Purchaser's
name, evidencing the aggregate principal amount of 1998 Notes to be
purchased by the Purchaser and in the denomination or denominations
specified with respect to the Purchaser in the Purchaser Schedule,
together with one or more 1998 Warrant Certificates (as set forth in the
Purchaser Schedule), representing the number of 1998 Warrants indicated on
such Purchaser Schedule and registered in the name
U.S. AGGREGATES, INC. 2 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
of the holder indicated on such Purchaser Schedule, against payment of the
purchase price thereof by transfer of immediately available funds, net of
the transaction structuring fee referred to in paragraph 5J, as directed
by the Company on Annex 2, on the date of closing, which shall be June 5,
1998 (herein called the "Closing" or the "Closing Date").
(ii) Original Issue Discount for the 1998 Notes. The Purchaser and
the Company agree that any original issue discount attributable, as a
result of the delivery of such 1998 Warrants, to any 1998 Note issued by
the Company in accordance with the terms and conditions of this Agreement
is less than the product of:
(a) one-quarter of one percent (0.25%) of the stated
redemption price at maturity (as such term is defined in Section
1273(a) of the IRC) of such 1998 Note; multiplied by
(b) the number of complete years to maturity of such 1998
Note.
The Purchaser and the Company agree to use the foregoing for all United
States federal, state and local income tax purposes with respect to the
transactions contemplated by this Agreement, the 1998 Warrant Agreement
and the other Financing Documents. The Purchaser and the Company
acknowledge that such original issue discount represents the Fair Market
Value of such 1998 Warrants as of the Closing Date.
(iii) Original Issue Discount for the 1996 Notes. The Purchaser and
the Company agree that any original issue discount attributable, as a
result of the delivery of the 1996 Warrants, to any 1996 Note issued by
the Company in accordance with the terms and conditions of the 1996
Purchase Agreement is less than the product of:
(a) one-quarter of one percent (0.25%) of the stated
redemption price at maturity (as such term is defined in Section
1273(a) of the IRC) of such 1996 Note; multiplied by
(b) the number of complete years to maturity of such 1996
Note.
The Purchaser and the Company agree to use the foregoing for all United
States federal, state and local income tax purposes with respect to the
transactions contemplated by this Agreement, the 1996 Warrant Agreement
and the other Financing Documents. The Purchaser and the Company
acknowledge that such original issue discount represents the Fair Market
Value of such 1996 Warrants as of the Prior Closing Date.
5. CONDITIONS OF CLOSING. The Purchaser's obligation to purchase and pay
for the 1998 Notes and 1998 Warrants to be purchased by the Purchaser hereunder
and the amendment and restatement of the 1996 Purchase Agreement is subject to
the satisfaction, on or before the Closing Date, of the following conditions:
U.S. AGGREGATES, INC. 3 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
5A. Opinion of Purchaser's Special Counsel. The Purchaser shall have
received from Xxxx & Xxxxxx, a Professional Corporation, who are acting as
special counsel for the Purchaser in connection with this transaction, a
favorable opinion satisfactory to the Purchaser as to such matters incident to
the matters herein contemplated as it may reasonably request.
5B. Opinion of Company's Counsel; Opinion of Each Guarantor's Local
Counsel. The Purchaser shall have received from Xxxxxxxx & Xxxxx, special
counsel for the Company, a favorable opinion satisfactory to the Purchaser and
substantially in the form of Exhibit B1 hereto. The Purchaser shall have
received from special local counsel for each of the Restricted Subsidiaries
executing the Subsidiary Guaranty, a favorable opinion satisfactory to the
Purchaser and substantially in the form of Exhibit B2 hereto.
5C. Representations and Warranties; No Default. The representations and
warranties contained in paragraph 10 shall be true on and as of the Closing
Date, except to the extent of changes caused by the transactions herein
contemplated; there shall exist on the Closing Date no Event of Default or
Default; and the Company shall have delivered to the Purchaser an Officer's
Certificate, dated the Closing Date and signed by a Responsible Officer of the
Company, substantially in the form of Exhibit C hereto, certifying as to both
such effects and that the conditions specified in this paragraph 5 have been
fulfilled, and a certificate dated the Closing Date and signed by the Secretary
or an Assistant Secretary of the Company, substantially in the form of Exhibit
D1 hereto, with respect to the matters therein set forth. Each Subsidiary shall
have delivered to the Purchaser a certificate dated the Closing Date and signed
by the Secretary or an Assistant Secretary of such Subsidiary, substantially in
the form of Exhibit D2 hereto, with respect to the matters therein set forth.
5D. Purchase Permitted By Applicable Laws. The purchase of and payment for
the 1998 Notes and the 1998 Warrants to be purchased by the Purchaser on the
Closing Date on the terms and conditions herein provided (including the use of
the proceeds of such 1998 Notes and 1998 Warrants by the Company) shall not
violate any applicable law or governmental regulation (including, without
limitation, section 5 of the Securities Act or Regulation T, U or X of the Board
of Governors of the Federal Reserve System) and shall not subject the Purchaser
to any tax, penalty, liability or other onerous condition under or pursuant to
any applicable law or governmental regulation, and the Purchaser shall have
received such certificates or other evidence as it may request to establish
compliance with this condition.
5E. 1998 Warrant Agreement; Registration Rights Agreement; Charter
Amendment, etc.
(i) 1998 Warrant Agreement. The Company shall have executed and
delivered the 1998 Warrant Agreement. The Company shall have issued to the
Purchaser 1998 Warrants in the amount set forth below the Purchaser's name
on the Purchaser Schedule attached hereto.
(ii) Registration Rights Agreement. The Company, Senior Management
and GTCR LP shall have executed and delivered the First Amendment to
Registration Rights and Stockholders' Agreement in the form of Exhibit F
hereto.
U.S. AGGREGATES, INC. 4 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(iii) Charter Amendment. The Charter Amendment shall have been duly
filed with the Secretary of State of the State of Delaware.
(iv) Reservation of Shares. The shares of Common Stock issuable upon
exercise of the Warrants shall have been duly authorized and reserved for
issuance upon such exercise.
5F. Subsidiary Guaranty. Each Restricted Subsidiary shall have executed
and delivered the Amended and Restated Subsidiary Guaranty (the "Subsidiary
Guaranty") to the Purchaser in the form of Exhibit G hereto.
5G. Bank Credit Agreement.
(i) No event shall have occurred and no condition shall exist that
shall prohibit the Company from borrowing under the Bank Credit Agreement.
(ii) The Bank Credit Agreement shall have been amended to, inter
alia, permit the execution and delivery of this Agreement by the Company
and the Subsidiary Guaranty by all Subsidiaries identified in Exhibit G
hereto as parties to such Subsidiary Guaranty, and a copy of such
amendment shall have been delivered to the Purchaser.
5H. Private Placement Numbers. The Company shall have obtained or caused
to be obtained private placement numbers for the 1998 Notes and the 1998
Warrants from the CUSIP Service Bureau of Standard & Poor's, a division of
XxXxxx-Xxxx, Inc., and the Purchaser shall have been informed of such private
placement numbers.
5I. Closing Expenses. The Company shall have paid at the closing the
statement for fees and disbursements of the special counsel for the Purchaser
presented on the Closing Date.
5J. Transaction Structuring Fee. The Company shall have paid a
non-refundable transaction structuring fee in the aggregate amount of One
Hundred Fifty Thousand Dollars ($150,000) to The Prudential Insurance Company of
America.
5K. Merger Agreement and Related Documents. You shall have received a copy
of the Merger Agreement as executed, together with all exhibits and schedules
thereto, and of each document required under the Merger Agreement to be
delivered or filed in connection with the consummation of the Merger certified
as true, correct and complete by a senior officer of the Company. All conditions
precedent to the consummation of the Merger under the Merger Agreement shall
have occurred, all governmental authorizations, consents, approvals, exemptions
or other actions required in connection with the Merger Agreement shall have
been duly received or taken, and the transactions contemplated by the Merger
Agreement shall have been duly consummated (or shall simultaneously be
occurring) substantially in accordance with the terms of the Merger Agreement.
5L. Proceedings Satisfactory. All proceedings taken in connection with the
issuance and sale of the 1998 Notes and the 1998 Warrants and all documents and
papers relating thereto shall be satisfactory to the Purchaser and its special
counsel. The
U.S. AGGREGATES, INC. 5 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
Purchaser and its special counsel shall have received copies of such documents
and papers as they may reasonably request in connection therewith or in
connection with such special counsel's closing opinion, all in form and
substance satisfactory to the Purchaser and such special counsel.
6. PREPAYMENTS. The unpaid principal amount of the 1996 Notes is due on
November 22, 2006. The unpaid principal amount of the 1998 Notes is due on
November 22, 2008. The Notes shall be subject to prepayment with respect to the
required prepayments specified in paragraph 6A and the optional prepayments
permitted by paragraph 6B, and upon certain changes in control, as set forth in
paragraph 6C.
6A. Required Prepayments.
(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. 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. The remaining principal amount of the
1998 Notes, together with interest accrued thereon, shall become due on
the maturity date of the 1998 Notes.
6B. Optional Prepayment With Yield-Maintenance Amount.
(i) Optional Prepayment Right. The Notes shall be subject to
prepayment, in whole at any time or from time to time in part on any
interest payment date (in multiples of One Million Dollars ($1,000,000)),
at the option of the Company at one hundred percent (100%) of the
principal amount so prepaid plus interest thereon to the prepayment date
and the Yield-Maintenance Amount, if any, with respect to each Note.
(ii) Notice of Optional Prepayment. The Company shall give the
holder of each Note irrevocable written notice of any prepayment pursuant
to paragraph 6B(i) hereof not less than ten (10) Business Days prior to
the prepayment date, specifying such prepayment date and the principal
amount of the Notes, and of the Notes held by such holder, to be prepaid
on such date and stating that such prepayment is to be made pursuant to
paragraph 6B(i) hereof. The notice of prepayment shall also set forth in
reasonable detail the Company's calculation of the estimated
Yield-Maintenance Amount payable to each holder of Notes in connection
with such prepayment. Notice of prepayment having been given as aforesaid,
the principal amount of the Notes specified in such notice, together with
interest thereon to the prepayment date and together with the
Yield-Maintenance
U.S. AGGREGATES, INC. 6 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
Amount, if any, with respect thereto, shall become due and payable on such
prepayment date. The Company shall, on or before the day on which it gives
written notice of any prepayment pursuant to paragraph 6B(i) hereto, give
telephonic notice of the principal amount of the Notes to be prepaid and
the prepayment date to each Significant Holder which shall have designated
a recipient of such notices in the Purchaser Schedule attached hereto or
by notice in writing to the Company.
6C. Offer to Pay upon Change in Control.
(i) Notice and Offer. In the event of either
(a) a Change in Control, or
(b) the obtaining of knowledge of a Notice Event by any
Responsible Officer (including, without limitation, via the receipt
of notice of a Notice Event from any holder of Notes),
the Company will, within three (3) Business Days of the occurrence of
either of such events, give written notice (the "Control Event Notice") of
such Change in Control or Notice Event to each holder of Notes. In the
event of a Change in Control, the Control Event Notice shall contain, and
shall constitute, an irrevocable offer to pay all, but not less than all,
the Notes held by such holder on the date specified in such Control Event
Notice (the "Control Payment Date") which shall be thirty (30) days after
the date of such Control Event Notice. If the Control Payment Date shall
not be specified in such Control Event Notice, the Control Payment Date
shall be the thirtieth (30th) day after the date of such holder's receipt
of such Control Event Notice. In no event will the Company take any action
to consummate or finalize a Change in Control unless contemporaneously
with such action the Company gives the Control Event Notice required to be
given in accordance with this paragraph 6C.
(ii) Acceptance and Payment; Rejection. To accept such offered
payment, a holder of Notes shall cause a notice of such acceptance to be
delivered to the Company at least two (2) days prior to the Control
Payment Date. Such offered payment shall be made at one hundred percent
(100%) of the principal amount of the Notes held by holders having
accepted such offer, together with interest on the Notes then being paid
accrued to the Control Payment Date.
(iii) Officer's Certificate. Each offer to pay the Notes pursuant to
this paragraph 6C shall be accompanied by a certificate, executed by a
Responsible Officer and dated the date of such offer, specifying:
(a) the Control Payment Date;
(b) the paragraph of this Agreement under which such offer is
made;
(c) the principal amount of each Note offered to be paid;
U.S. AGGREGATES, INC. 7 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(d) the interest that would be due on each Note offered to be
paid, accrued to the date fixed for payment;
(e) that the conditions of this paragraph 6C have been
fulfilled; and
(f) in reasonable detail, the nature and date or proposed date
of the Change in Control.
Upon acceptance of any such offer by any holder of Notes, the aggregate
principal amount of the Notes offered to be paid to such holder and
accrued interest thereon shall become due and payable on the Control
Payment Date.
(iv) Certain Definitions. The following terms have the following
meanings:
(a) "Change in Control" means, at any time, the failure of
GTCR LP or its Affiliates and Senior Management to own and control,
free of any Lien, at least fifty-one percent (51%) of all of the
issued and outstanding Voting Stock of each class of the Company.
(b) "Notice Event" means the execution of any written
agreement that, when fully performed by the parties thereto, would
result in a Change in Control.
6D. Application of Prepayments.
(i) Application of Partial Prepayments to Mandatory Prepayments and
Payment at Maturity. Any prepayment of Notes of either Series pursuant to
paragraph 6B or paragraph 6C hereof shall be applied ratably to the
principal amount due on the maturity date of the Notes of such Series so
prepaid and to the mandatory prepayments applicable to the Notes of such
Series so prepaid as set forth in paragraph 6A hereof.
(ii) Partial Prepayments Pro Rata. Upon any partial prepayment of
the Notes of either Series pursuant to paragraph 6A or paragraph 6B, the
principal amount so prepaid shall be allocated to all of the Notes of such
Series so prepaid at the time outstanding in proportion to the respective
outstanding principal amounts thereof.
6E. No Acquisition of Notes. The Company shall not, and shall not permit
any of its Subsidiaries or Affiliates to, prepay or otherwise retire in whole or
in part prior to their stated final maturity (other than by prepayment pursuant
to paragraph 6A, paragraph 6B, or paragraph 6C, or upon acceleration of such
final maturity pursuant to paragraph 9A), or purchase or otherwise acquire,
directly or indirectly, Notes held by any holder unless the Company or such
Subsidiary or Affiliate shall have offered to prepay or otherwise retire or
purchase or otherwise acquire, as the case may be, the same proportion of the
aggregate principal amount of Notes held by each other holder of Notes at the
time outstanding upon the same terms and conditions.
U.S. AGGREGATES, INC. 8 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
6F. Limitations on Payments and Prepayments. Except as specifically set
forth in this Agreement and the Notes, the Notes shall not be subject to
prepayment.
7. AFFIRMATIVE COVENANTS.
7A. Financial Statements. The Company will deliver to each Institutional
Holder in duplicate:
(i) as soon as practicable and in any event within forty-five (45)
days after the end of each quarterly period (other than the last quarterly
period) in each fiscal year, consolidating and consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the
period from the beginning of the current fiscal year to the end of such
quarterly period, and consolidating and consolidated balance sheets of the
Company and its Subsidiaries as at the end of such quarterly period,
setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year, all in reasonable
detail and reasonably satisfactory to the Required Holders and certified
by an authorized financial officer of the Company as fairly presenting, in
all material respects, the financial position of the Company and its
Subsidiaries and their results of operations and cash flows, subject to
changes resulting from year-end adjustments and the absence of footnotes;
(ii) as soon as practicable and in any event within one hundred
twenty (120) days after the end of each fiscal year, consolidating and
consolidated statements of operations, shareholders' equity and cash flows
of the Company and its Subsidiaries for such year, and consolidating and
consolidated balance sheets of the Company and its Subsidiaries as at the
end of such year, setting forth in the case of such consolidated
statements, in comparative form, corresponding consolidated figures from
the preceding annual audit, all in reasonable detail and reasonably
satisfactory to the Required Holders and, as to the consolidated
statements, certified to the Company by Xxxxxx Xxxxxxxx LLP or other
independent public accountants of recognized standing selected by the
Company whose certificate shall be without qualification as to going
concern or scope and, as to the consolidating statements, certified by an
authorized financial officer of the Company, such certificates in each
case certifying such financial statements as fairly presenting, in all
material respects, the financial position of the Company and its
Subsidiaries and their results of operations and cash flows;
(iii) concurrently with distribution thereof, a copy of each
certificate or report (together with all attachments thereto) sent to the
Agent or any Bank pursuant to the Bank Credit Agreement (or any agreement
replacing the Bank Credit Agreement) in connection with the acquisition by
the Company or any of its Subsidiaries of the assets or capital stock of
any Person;
(iv) within thirty (30) days after the commencement of each fiscal
year of the Company, a copy of the Company's Budget for such fiscal year;
(v) promptly upon transmission thereof, copies of all such financial
statements, proxy statements, notices and reports as it sends to its
public stockholders and copies of all registration statements (without
exhibits) and all
U.S. AGGREGATES, INC. 9 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
reports that it files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the function of the Securities
and Exchange Commission);
(vi) promptly upon receipt thereof, a copy of each other report
submitted to the Company or any of its Subsidiaries by independent
accountants in connection with any annual, interim or special audit made
by them of the books of the Company or any such Subsidiary (including,
without limitation, any management letters);
(vii) promptly upon releasing the same to the public, copies of any
material press releases;
(viii) promptly after the commencement thereof, written notice of
any action or proceeding relating to the Company or any of its
Subsidiaries in any court or before any Governmental Authority (including,
without limitation, any arbitration board or tribunal) which could, if
determined adversely, reasonably be expected to have a Material Adverse
Effect;
(ix) promptly after any Responsible Officer shall have knowledge
thereof, any condition or occurrence which could reasonably be expected to
have a Material Adverse Effect;
(x) promptly upon the request of any holder of Notes, any
information required to be delivered (to the extent not already delivered
to such holder pursuant to the other requirements of this paragraph 7A) to
any Transferee by Rule 144A (17 C.F.R. ss.230.144A) under the Securities
Act (or any successor provision) as a condition to the transfer of any
Note pursuant to such Rule;
(xi) promptly upon the occurrence thereof, written notice of any
Acquisition Loan, specifying the amount of such Acquisition Loan; and
(xii) with reasonable promptness, such other financial data as such
Institutional Holder may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company will deliver to each Institutional Holder an Officer's
Certificate demonstrating (with computations in reasonable detail) compliance by
the Company and its Restricted Subsidiaries with the provisions of paragraph 8
and stating that there exists no Event of Default or Default, or, if any Event
of Default or Default exists, specifying the nature and period of existence
thereof and what action the Company proposes to take with respect hereto.
Together with each delivery of financial statements required by clause (ii)
above, the Company will deliver to each Institutional Holder a certificate of
such accountants stating that, in making the audit necessary to the
certification of such financial statements, they have obtained no knowledge of
any Event of Default or Default, or, if they have obtained knowledge of any
Event of Default or Default, specifying the nature and period of existence
thereof. Such accountants, however, shall not be liable to anyone by reason of
their failure to obtain knowledge of any Event of Default or Default that would
not be disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards. The Company also covenants that forthwith
upon a Responsible
U.S. AGGREGATES, INC. 10 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
Officer obtaining knowledge of an Event of Default or Default, it will deliver
to each Institutional Holder a certificate of a Responsible Officer specifying
the nature and period of existence thereof and what action the Company proposes
to take with respect hereto.
7B. Inspection of Property. The Company will permit any Person designated
by any Institutional Holder in writing, at such Institutional Holder's expense
(except as specified in the next succeeding sentence), to visit and inspect any
of the Properties of the Company and its Subsidiaries, to examine the corporate
books and financial records of the Company and its Subsidiaries and make copies
thereof or extracts therefrom and to discuss the affairs, finances and accounts
of any of such corporations with the principal officers of the Company and its
independent public accountants, all during normal business hours and at such
reasonable times and as often as such Institutional Holder may reasonably
request. The Company will reimburse each Institutional Holder, on demand, for
all reasonable expenses which such Institutional Holder may incur in connection
with any such visitation, inspection or discussion if any Default or Event of
Default shall exist at the time of such visitation, inspection or discussion.
7C. Covenant to Secure Notes Equally. If the Company or any of its
Subsidiaries creates or assumes any Lien upon any of its Property, whether now
owned or hereafter acquired, other than Liens permitted by the provisions of
paragraph 8G hereof (unless prior written consent to the creation or assumption
thereof shall have been obtained pursuant to paragraph 14C hereof), the Company
will make, or cause to be made pursuant to such agreements and instruments as
shall be approved by the Required Holders, effective provision whereby the Notes
will be secured by such Lien equally and ratably with any and all other Debt
thereby secured so long as any such other Debt shall be so secured.
7D. Payment of Taxes and Claims. The Company covenants that it will, and
will cause each of its Subsidiaries to, pay before they become delinquent,
(i) all taxes, assessments and governmental charges or levies
imposed upon it or its Property, and
(ii) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons that, if unpaid, might
result in the creation of a Lien upon its Property,
provided that items of the foregoing description need not be paid while being
contested in good faith by appropriate proceedings timely initiated, so long as
(a) enforcement of any Liens relating to such items is
effectively stayed, and
(b) reserves, reasonably determined by the Company or the
Subsidiary, as the case may be, to be adequate, have been
established and maintained.
7E. Maintenance of Properties and Corporate Existence. The Company
covenants that it will, and will cause each of its Subsidiaries to:
U.S. AGGREGATES, INC. 11 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(i) Property -- maintain its Property in good condition (ordinary
wear and tear and damage by casualty excepted) and timely make all
necessary renewals, replacements, repairs, additions, betterments and
improvements thereto;
(ii) Insurance -- maintain, with financially sound and responsible
insurers having a general policyholders' rating of at least "A" or its
equivalent from A.M. Best Company (or another nationally recognized
insurance rating agency of similar standing if A.M. Best Company is not
then in the business of rating insurance companies), insurance in such
amounts and covering such risks as is customary in the case of
corporations engaged in the same or a similar business and similarly
situated;
(iii) Financial Records -- maintain sound accounting policies and an
adequate and effective system of accounts and internal accounting control
that will safeguard assets, properly record income, expenses and
liabilities, and assure the production of proper financial statements in
accordance with GAAP;
(iv) Corporate Existence and Rights -- do or cause to be done all
things necessary:
(a) to preserve and keep in full force and effect its
existence, rights and franchises, and
(b) to maintain each Subsidiary as a Subsidiary, except as
otherwise permitted by paragraph 8H and paragraph 8I hereof, and
except to the extent such failure to maintain such Subsidiary could
not reasonably be expected to have a Material Adverse Effect; and
(v) Compliance with Law -- comply with all laws, ordinances and
governmental rules and regulations to which it is subject and obtain all
licenses, permits, franchises and other governmental authorizations
necessary to the ownership of its Properties or to the conduct of its
business, except for violations or failures to obtain that, in the
aggregate for all such failures and violations, could not reasonably be
expected to have a Material Adverse Effect.
7F. Pension Plans. The Company will, and will cause each ERISA Affiliate
to, at all times
(i) with respect to each Pension Plan, make timely payments of
contributions required to meet the minimum funding standard set forth in
ERISA or the IRC with respect thereto and, with respect to each
Multiemployer Plan, make timely payment of contributions required to be
paid thereto as provided by Section 515 of ERISA and
(ii) comply with all other provisions of ERISA,
except for such failures to make contributions and failures to comply as could
not reasonably be expected to have a Material Adverse Effect.
U.S. AGGREGATES, INC. 12 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
7G. Payment of Notes and Maintenance of Office. The Company covenants that
it will punctually pay, or cause to be paid, the principal and interest (and
Yield-Maintenance Amount, if any) to become due in respect of the Notes
according to the terms thereof and will maintain an office at the address of the
Company set forth in paragraph 14H hereof where notices, presentations and
demands in respect hereof or the Notes may be made upon it. Such office will be
maintained at such address until such time as the Company will notify the
holders of the Notes of any change of location of such office, which will in any
event be located in the United States of America.
7H. Private Offering. The Company will not, and will not permit any Person
acting on its behalf to, offer the Notes or any part thereof or any similar
Securities for issue or sale to, or solicit any offer to acquire any of the same
from, any Person so as to bring the issuance and sale of the Notes within the
provisions of section 5 of the Securities Act.
7I. Line of Business. The Company shall not, nor shall it permit any
Restricted Subsidiary to, engage in any business if, as a result thereof, the
business of the Company and the Restricted Subsidiaries, taken as a whole, would
not be substantially the same as, or substantially similar to, the business,
taken as a whole, engaged in by the Company and the Restricted Subsidiaries on
the date of this Agreement.
7J. Subsidiary Guaranties. The Company will cause each corporation which
becomes a Subsidiary after the Closing Date, and which executes a guaranty of
obligations outstanding under the Bank Credit Agreement, to execute and deliver
to each holder of Notes, simultaneously with its execution and delivery of any
such guaranty of Bank Credit Agreement obligations, a copy of the Joinder
Agreement in the form attached to the Subsidiary Guaranty as Annex 2, duly
executed by such corporation.
8. NEGATIVE COVENANTS.
8A. Interest Expense Coverage. The Company will not permit the ratio of
EBITDA to Consolidated Interest Expense,
(i) for the period of twelve (12) consecutive calendar months most
recently ended as of the Closing Date, to be less than 1.75 to 1.0, and
(ii) for any period of four (4) consecutive fiscal quarters of the
Company ending in any period specified in the table below, to be less than
the ratio set forth opposite such period in such table:
--------------------------------------------------------------------------------
Fiscal Period Ratio
--------------------------------------------------------------------------------
Closing Date through September 29, 1999 1.75 to 1.0
--------------------------------------------------------------------------------
September 30, 1999 through September 29, 2000 2.0 to 1.0
--------------------------------------------------------------------------------
September 30, 2000 and thereafter 2.25 to 1.0
--------------------------------------------------------------------------------
U.S. AGGREGATES, INC. 13 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
8B. Fixed Charge Coverage. The Company will not permit the ratio of
(i) EBITDA for any period of four (4) consecutive fiscal quarters of
the Company to
(ii) Consolidated Fixed Charges for such period
to be less than 0.90 to 1.00.
8C. Leverage Ratio. The Company will not, as of any Calculation Date in
any period specified in the table below, permit the ratio of
(i) Consolidated Debt (excluding, to the extent included in the
computation of Consolidated Debt at such time, any outstanding
indebtedness for borrowed money evidenced by the Xxxxxx Trust Note),
determined on such Calculation Date after giving effect to the incurrence
of any Debt by the Company or any Restricted Subsidiary on such date and
the application of the proceeds thereof, to
(ii) EBITDA for the period of four (4) consecutive fiscal quarters
of the Company most recently ended at such time,
to be greater than the ratio set forth opposite such period in such table:
--------------------------------------------------------------------------------
Fiscal Period Ratio
--------------------------------------------------------------------------------
Closing Date up to but not including September 30, 1998 6.0 to 1.0
--------------------------------------------------------------------------------
September 30, 1998 up to but not including September 30, 1999 5.25 to 1.0
--------------------------------------------------------------------------------
September 30, 1999 up to but not including September 30, 2000 4.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2000 and thereafter 4.0 to 1.0
--------------------------------------------------------------------------------
As used in this paragraph 8C, "Calculation Date" means
(a) the Closing Date,
(b) the last day of each fiscal quarter of the Company, or
(c) the date of any Acquisition Loan,
as the case may be.
8D. Rental Obligations. The Company will not, and will not permit any
Restricted Subsidiary to, enter into at any time any arrangement (other than
Capital Leases) which
U.S. AGGREGATES, INC. 14 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
involves the leasing by the Company or such Restricted Subsidiary from any
lessor of any personal Property (or any interest therein), except:
(i) rentals of items of equipment for not more than ninety (90) days
for use on one or more specific jobs in the ordinary course of business
and
(ii) arrangements which, together with all other such arrangements
which shall then be in effect, will not require the payment of rentals by
the Company and its Subsidiaries in any fiscal year of the Company, in the
aggregate, to exceed the greater of
(a) five percent (5%) of Consolidated Net Revenues for the
immediately preceding fiscal year of the Company; and
(b) Four Million Dollars ($4,000,000);
provided, however, that any calculation made for purposes of this paragraph 8D
shall exclude any amounts required to be expended for maintenance and repairs,
insurance, taxes, assessments and other similar charges.
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 or
(v) set aside funds for any of the foregoing;
provided that (a) 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); and (b) so long as no Default or
Event of Default exists or would result therefrom, any Restricted Subsidiary or
the Company may repurchase or redeem its stock from any former employee,
director of, or consultant to, a Restricted Subsidiary (or any heirs or legal
representatives of any such employee, director or consultant) in an aggregate
amount, for all such purposes, not exceeding $1,000,000 in any fiscal year.
8F. Debt Restrictions. The Company will not, and will not permit any
Restricted Subsidiary to, at any time, directly or indirectly create, incur,
issue, 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:
U.S. AGGREGATES, INC. 15 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(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; and
(iv) additional Debt of the Company or any Restricted Subsidiary 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 shall exist.
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 in connection with Capital Leases (to the extent
permitted hereunder);
(v) any Lien arising in connection with the acquisition of Property
being acquired, 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
U.S. AGGREGATES, INC. 16 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
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) Liens in connection with Permitted Acquisitions; and
(xi) other Liens securing obligations not at any time exceeding
Three Million Dollars ($3,000,000).
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;
(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;
(iii) the Company may merge or consolidate with or into any other
corporation, 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
(iv) any Restricted Subsidiary may merge or consolidate with or into
any other corporation, provided that:
(a) the continuing or surviving corporation (the "Successor
Corporation") shall, immediately after giving effect to such
transaction, be a Restricted Subsidiary,
(b) if such Restricted Subsidiary is not the Successor
Corporation, such Successor Corporation shall have executed and
delivered to each
U.S. AGGREGATES, INC. 17 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
holder of Notes, prior to giving effect to, or concurrently with the
consummation of, such transaction, a copy of the Joinder Agreement
in the form attached to the Subsidiary Guaranty as Annex 2, duly
executed by such corporation, and
(c) immediately prior to, and immediately after giving effect
to, such transaction, no Default or Event of Default would exist.
8I. Sale of Assets; Disposal of Ownership and Debt of a Restricted
Subsidiary.
(i) Sale of Assets. The Company will not, and will not permit any of
its Restricted Subsidiaries to, make any Transfer, provided that the
foregoing restriction does not apply to a Transfer if:
(a) the Property that is the subject of such Transfer
constitutes inventory held for sale and such Transfer is in the
ordinary course of business (an "Ordinary Course Transfer");
(b) such Transfer is from a Restricted Subsidiary to the
Company or a Wholly-Owned Subsidiary (an "Intergroup Transfer");
(c) such Transfer is permitted under paragraph 8I(ii) or
consists of the grant of a Lien to secure Senior Debt; or
(d) such Transfer is neither an Ordinary Course Transfer nor
an Intergroup Transfer, and either
(I) the Net Proceeds Amount arising therefrom is
applied, within three hundred sixty-five (365) days after such
Transfer, to a Property Reinvestment Application or to the
repayment of Senior Debt, or
(II) all of the following conditions shall have been
satisfied with respect thereto:
(A) immediately after giving effect to the
Transfer, no Default or Event of Default would exist,
and
(B) immediately after giving effect to the
Transfer,
(1) the Disposition Value of all of the
Property that was the subject of a Transfer
permitted by this paragraph 8I(i)(d)(II) during
the then current fiscal year of the Company would
not exceed ten percent (10%) of Consolidated Total
Assets as of the end of the then most recently
ended fiscal year of the Company, and
(2) all of the Property that was the subject
of a Transfer permitted by this paragraph
8I(i)(d)(II)
U.S. AGGREGATES, INC. 18 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
during the then current fiscal year of the Company
would not have contributed more than ten percent
(10%) of EBITDA for any of the three most recently
ended fiscal years of the Company,
provided that notwithstanding the foregoing, no Transfer under
this paragraph 8I(i)(d)(II) shall be permitted if, immediately
after giving effect to such Transfer, the Disposition Value of
all of the Property that was the subject of a Transfer
permitted by clause (II) of this paragraph 8I(i)(d) during the
period commencing on the Closing Date and ending on the date
of such Transfer would exceed twenty percent (20%) of
Consolidated Total Assets as of the end of the then most
recently ended fiscal year of the Company.
(ii) Disposal of Ownership and Debt of a Restricted Subsidiary. The
Company will not, and will not permit any Restricted Subsidiary to, sell,
assign, pledge or otherwise dispose of any shares of Subsidiary Stock or
Debt of any other Restricted Subsidiary, nor will the Company permit any
such Restricted Subsidiary to issue, sell or otherwise dispose of any
shares of its own Subsidiary Stock, provided that the foregoing
restrictions do not apply to:
(a) the Stock and Intercompany Note Pledge;
(b) the Transfer of such Subsidiary Stock or Debt to the
Company or a Wholly-Owned Subsidiary;
(c) the Transfer of all of the Subsidiary Stock and Debt of a
Restricted Subsidiary owned by one or more of the Company and the
Restricted Subsidiaries, provided that the following conditions are
met:
(I) such Transfer could be made pursuant to paragraph
8I(i)(d),
(II) in connection with such Transfer the entire
Investment (whether represented by stock, Debt, claims or
otherwise) of the Company and its other Restricted
Subsidiaries in such Restricted Subsidiary is sold,
transferred or otherwise disposed of to a Person other than
(A) the Company, or (B) another Restricted Subsidiary not
being simultaneously disposed of, and
(III) the Restricted Subsidiary being disposed of has no
continuing Investment in any other Restricted Subsidiary of
the Company not being simultaneously disposed of or in the
Company; or
(d) the issue or sale of the Subsidiary Stock of any
Restricted Subsidiary to any Person or Persons other than the
Company or a Wholly-Owned Subsidiary, provided that after giving
effect to such issuance or sale, the Company would own, directly or
indirectly through one or more Restricted Subsidiaries,
U.S. AGGREGATES, INC. 19 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(I) eighty percent (80%) or more of the fully diluted
Voting Stock of such Restricted Subsidiary at such time, and
(II) eighty percent (80%) of the shareholders' equity of
such Restricted Subsidiary at such time.
For purposes of this paragraph (d), "fully diluted" means (x) with
respect to Voting Stock of any Restricted Subsidiary at any time,
all shares of Voting Stock of such Restricted Subsidiary which would
be outstanding at such time if all warrants, rights or options to
acquire such Voting Stock had been exercised and all Securities
exchangeable for or convertible into such Voting Stock had been so
exchanged or converted and (y) with respect to such warrants,
rights, options or exchangeable or convertible Securities, means the
number of shares of Voting Stock which may be obtained upon
exercise, exchange or conversion of such warrants, rights, options
or exchangeable or convertible Securities.
(iii) Certain Definitions. As used in this paragraph 8I, the
following terms have the following meanings:
(a) "book value" means, in the case of any Transfer of capital
stock of any Person, the same proportion of the Total Assets of such
Person as shall be equal to the proportion of the equity of such
Person represented by the capital stock subject to such Transfer,
and in the case of any Transfer of any asset other than capital
stock of any Person, the amount at which the same is recorded, or in
accordance with GAAP should have been recorded, in the books of
account of such Person.
(b) "Disposition Value" means, at any time, with respect to
any Transfer, the greater of the Fair Market Value or book value of
the Property subject to such Transfer.
(c) "Net Proceeds Amount" means, with respect to the Transfer
of any Property by the Company or any of its Restricted
Subsidiaries, the aggregate amount of the consideration received by
such Person in connection with such Transfer (net of the direct
costs relating to such Transfer (including, without limitation,
legal, accounting and investment banking fees and sales
commissions)).
(d) "Property Reinvestment Application" means, with respect to
any Transfer, an amount equal to the Net Proceeds Amount shall have
been applied to the acquisition by the Company, or any Restricted
Subsidiary making such Transfer, of Property to be used in the
ordinary course of business of the Company and the Restricted
Subsidiaries, that
(I) is related to the aggregates, or related materials
and services, business, or
(II) consists of equity interests in Persons engaged in
the aggregates, or related materials and services, business.
U.S. AGGREGATES, INC. 20 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(e) "Total Assets" means, with respect to any Person at any
time, all of the assets of such Person which would be reflected, at
such time, on a balance sheet of such Person prepared in accordance
with GAAP.
(f) "Transfer" means, with respect to any Person, any
transaction in which such Person sells, conveys, transfers, leases
(as lessor) or otherwise disposes of any of its Property, including,
without limitation, capital stock of any Person.
8J. Limitations on Certain Subsidiary Actions. Except as permitted by
Section 10.11 of the Bank Credit Agreement as in effect on the Closing Date, the
Company will not, and will not permit any Restricted Subsidiary to, enter into
any agreement (including any provision in its charter) which would, directly or
indirectly, restrict a Restricted Subsidiary's ability or right to:
(i) pay dividends or make any other distributions to the Company or
any other Restricted Subsidiary; or
(ii) pay any Debt owing to the Company or any other Restricted
Subsidiary.
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, unless immediately after giving effect to the making of
such Restricted Investment:
(i) the aggregate cost of all Restricted Investments made by the
Company and its Restricted Subsidiaries that are outstanding at any time,
less any return of capital in respect thereof, would not exceed five
percent (5%) of Consolidated Net Worth as of the end of the fiscal quarter
of the Company most recently ended at such time; and
(ii) at the time of the declaration or making of such Restricted
Investment no Default or Event of Default exists or would exist;
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.
8L. Limitation on the Sale of Receivables. The Company will not, and will
not permit any Restricted Subsidiary to, sell, discount, transfer, dispose of,
or incur a Lien on, any Receivables of the Company or any Restricted Subsidiary
other than (i) in the ordinary course of business in connection with the
collection or settlement thereof, (ii) intercompany transfers of receivables,
and (iii) Liens to secure Senior Debt.
U.S. AGGREGATES, INC. 21 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
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 during
any fiscal year of the Company does not exceed One Hundred Seventy-Five Thousand
Dollars ($175,000) for management services relating to the Company and its
Restricted Subsidiaries plus actual out-of-pocket expenses related to such
services.
9. EVENTS OF DEFAULT.
9A. Acceleration. If any of the following events shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise):
(i) the Company defaults in the payment of any principal of or
Yield-Maintenance Amount payable with respect to any Note when the same
shall become due, either by the terms thereof or otherwise as herein
provided; or
(ii) the Company defaults in the payment of any interest on any Note
for more than ten (10) Business Days after the date due; or
(iii) (x) the Company or any Restricted Subsidiary defaults (whether
as primary obligor or as guarantor or other surety) in any payment
of principal of or interest on any other obligation for money
borrowed (or any Capital Lease Obligation, any obligation under a
conditional sale or other title retention agreement, any obligation
issued or assumed as full or partial payment for Property, whether
or not secured by a purchase money mortgage or any obligation under
notes payable or drafts accepted representing extensions of credit)
beyond any period of grace applicable thereto, provided that the
aggregate amount of all obligations as to which such a payment
default shall occur and be continuing exceeds One Million Dollars
($1,000,000) (it being understood that a failure to make a
prepayment of a portion of any obligations shall be deemed to be a
payment default in respect of the entire amount of such
obligations), or
(y) the Company or any Restricted Subsidiary fails to perform
or observe any other agreement, term or condition contained in any
U.S. AGGREGATES, INC. 22 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
agreement under which any such obligation is created (or if any
other event thereunder or under any such agreement shall occur and
be continuing) and the effect of such failure or other event is to
cause such obligation to become due (or to be repurchased by the
Company or any Restricted Subsidiary) prior to any stated maturity,
provided that the aggregate amount of all obligations as to which
such a failure or other event causing acceleration (or resale to the
Company or any Restricted Subsidiary) shall occur and be continuing
exceeds Five Million Dollars ($5,000,000); or
(iv) any representation or warranty made by or on behalf of the
Company or any Subsidiary in this Agreement or the Subsidiary Guaranty or
by the Company or any Subsidiary or any of their respective officers in
any writing furnished in connection with or pursuant to this Agreement or
the transactions contemplated hereby shall be false in any material
respect on the date as of which made; or
(v) the Company fails to perform or observe any agreement contained
in paragraph 8; or
(vi) the Company fails to perform or observe any other agreement,
term or condition contained herein and such failure shall not be remedied
within thirty (30) days after any officer of the Company obtains actual
knowledge or notice thereof; or
(vii) the Company or any Restricted Subsidiary makes an assignment
for the benefit of creditors or is generally not paying its debts as such
debts become due; or
(viii) any decree or order for relief in respect of the Company or
any Restricted Subsidiary is entered under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law, whether now or hereafter in effect (herein
called the "Bankruptcy Law"), of any jurisdiction; or
(ix) the Company or any Restricted Subsidiary petitions or applies
to any tribunal for, or consents to, the appointment of, or taking
possession by, a trustee, receiver, custodian, liquidator or similar
official of the Company or any Restricted Subsidiary, or of any
substantial part of the assets of the Company or any Restricted
Subsidiary, or commences a voluntary case under the Bankruptcy Law of the
United States or any proceedings (other than proceedings for the voluntary
liquidation and dissolution of a Restricted Subsidiary) relating to the
Company or any Restricted Subsidiary under the Bankruptcy Law of any other
jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the Company or any Restricted
Subsidiary and the Company or such Restricted Subsidiary by any act
indicates its approval thereof, consent thereto or acquiescence therein,
or an order, judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or approving the
petition in any such proceedings, and such order, judgment or decree
remains unstayed and in effect for more than sixty (60) days; or
U.S. AGGREGATES, INC. 23 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(xi) any order, judgment or decree is entered in any proceedings
against the Company decreeing the dissolution of the Company and such
order, judgment or decree remains unstayed and in effect for more than
sixty (60) days; or
(xii) any order, judgment or decree is entered in any proceedings
against the Company or any Restricted Subsidiary decreeing a split-up of
the Company or such Restricted Subsidiary which requires the divestiture
of assets representing a substantial part, or the divestiture of the stock
of a Restricted Subsidiary whose assets represent a substantial part, of
the consolidated assets of the Company and its Subsidiaries (determined in
accordance with GAAP) or which requires the divestiture of assets, or
stock of a Restricted Subsidiary, which shall have contributed a
substantial part of the Consolidated Net Income for any of the three
fiscal years then most recently ended, and such order, judgment or decree
remains unstayed and in effect for more than sixty (60) days; or
(xiii) a final judgment in an amount in excess of One Million
Dollars ($1,000,000) (excluding any portion thereof that is covered by
insurance to the reasonable satisfaction of the Required Holders) is
rendered against the Company or any Restricted Subsidiary and, within 60
days after entry thereof, such judgment is not discharged or execution
thereof stayed pending appeal, or within sixty (60) days after the
expiration of any such stay, such judgment is not discharged; or
(xiv) (a) the Subsidiary Guaranty shall cease to be in full force
and effect or shall be declared by a court or governmental authority
of competent jurisdiction to be void, voidable or unenforceable
against any Subsidiary,
(b) the validity or enforceability of the Subsidiary Guaranty
against any Subsidiary shall be contested by such Subsidiary, the
Company or any Affiliate thereof, or
(c) any Subsidiary, the Company or any Affiliate thereof shall
deny that such Subsidiary has any further liability or obligation
under the Subsidiary Guaranty;
then, subject to paragraph 12B,
(a) if such event is an Event of Default specified in clause (i) or
(ii) of this paragraph 9A, the holder of any Note (other than the Company
or any of its Subsidiaries or Affiliates) may at its option, by notice in
writing to the Company, declare such Note to be, and such Note shall
thereupon be and become, immediately due and payable at par together with
interest accrued thereon, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company;
(b) if such event is an Event of Default specified in clause (viii),
(ix) or (x) of this paragraph 9A with respect to the Company, all of the
Notes at the time outstanding shall automatically become immediately due
and payable at par together with interest accrued thereon, without
presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Company; and
U.S. AGGREGATES, INC. 24 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(c) if such event is not an Event of Default specified in clause
(viii), (ix) or (x) of this paragraph 9A with respect to the Company, the
Required Holder(s) may at its or their option, by notice in writing to the
Company, declare all of the Notes to be, and all of the Notes shall
thereupon be and become, immediately due and payable together with
interest accrued thereon and together with the Yield-Maintenance Amount,
if any, with respect to each Note, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company.
9B. Rescission of Acceleration. At any time after any or all of the Notes
shall have been declared immediately due and payable pursuant to paragraph
9A(c), the Required Holder(s) may, by notice in writing to the Company, rescind
and annul such declaration and its consequences if (i) the Company shall have
paid all overdue interest on the Notes, the principal of and Yield-Maintenance
Amount, if any, payable with respect to any Notes which have become due
otherwise than by reason of such declaration, and interest on such overdue
interest and overdue principal and Yield-Maintenance Amount at the rate
specified in the Notes, (ii) the Company shall not have paid any amounts which
have become due solely by reason of such declaration, (iii) all Events of
Default and Defaults, other than non-payment of amounts which have become due
solely by reason of such declaration, shall have been cured or waived pursuant
to paragraph 14C, and (iv) no judgment or decree shall have been entered for the
payment of any amounts due pursuant to the Notes or this Agreement. No such
rescission or annulment shall extend to or affect any subsequent Event of
Default or Default or impair any right arising therefrom. In the event of a
declaration of acceleration of the Notes because an Event of Default has
occurred and is continuing solely as a result of the default in the payment, or
the acceleration, of any Debt described in clause (iii) of paragraph 9A, the
declaration of acceleration of the Notes shall be automatically annulled if the
holders of such Debt have waived the payment default, or, as applicable,
rescinded the declaration of acceleration, in respect of such Debt within thirty
(30) days of the occurrence of such payment default or such acceleration, as
applicable.
9C. Notice of Acceleration or Rescission. Whenever any Note shall be
declared immediately due and payable pursuant to paragraph 9A or any such
declaration shall be rescinded and annulled pursuant to paragraph 9B, the
Company shall forthwith give written notice thereof to the holder of each Note
at the time outstanding.
9D. Other Remedies. If any Event of Default or Default shall occur and be
continuing, then, subject to paragraph 12B, the holder of any Note may proceed
to protect and enforce its rights under this Agreement and such Note by
exercising such remedies as are available to such holder in respect thereof
under applicable law, either by suit in equity or by action at law, or both,
whether for specific performance of any covenant or other agreement contained in
this Agreement or in aid of the exercise of any power granted in this Agreement.
No remedy conferred in this Agreement upon the holder of any Note is intended to
be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute or otherwise.
10. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company represents,
covenants and warrants as follows:
U.S. AGGREGATES, INC. 25 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
10A. Organization.
(i) The Company is a corporation duly organized and existing in good
standing under the laws of the State of Delaware and each Subsidiary is
duly organized and existing in good standing under the laws of the
jurisdiction in which it is incorporated.
(ii) Part 10A of Annex 3 sets forth, as of the Closing Date,
(a) the name of each corporation, partnership and joint
venture which is an Affiliate of the Company (excluding, for
purposes of this clause (ii)(a), all funds as to which GTCR, Inc. is
an advisor and all Persons that are Affiliates of the Company by
virtue of investments made by GTCR LP and its affiliated investment
funds), and the nature of the affiliation of such Affiliate, and
(b) the name of each Subsidiary of the Company and its
jurisdiction of incorporation.
(iii) Each of the Company and its Subsidiaries
(a) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates, permits, franchises and other
governmental authorizations, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect,
and
(b) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
corporation, in each state in the United States of America and in
each other jurisdiction where the nature of its business makes such
qualification necessary, except where the failure to be so qualified
or licensed and authorized and in good standing, in the aggregate
for all such failures, could not reasonably be expected to have a
Material Adverse Effect.
10B. Financial Statements. The Company has furnished the Purchaser with
each of the financial statements described in Part 10B of Annex 3, identified by
a principal financial officer of the Company. Such financial statements
(including any related schedules and notes) are true and correct in all material
respects (subject, as to interim statements, to changes resulting from audits,
year-end adjustments and the absence of footnotes), have been prepared in
accordance with GAAP consistently followed throughout the periods involved and
show all liabilities, direct and contingent, of the Company and its Restricted
Subsidiaries required to be shown in accordance with GAAP. The balance sheets
present fairly, in all material respects, the financial position of the Company
and its Restricted Subsidiaries as at the dates thereof, and the consolidated
statements of operations, shareholders' equity and cash flows present fairly the
results of the operations and cash flows of the Company and its Subsidiaries for
the periods indicated. There has been no material adverse change in the
business, condition or
U.S. AGGREGATES, INC. 26 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
operations (financial or otherwise) of the Company and its Subsidiaries taken as
a whole since December 31, 1997.
10C. Actions Pending. Except as set forth on Part 10C of Annex 3, there is
no action, suit, investigation or proceeding 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 could reasonably
be expected to have a Material Adverse Effect.
10D. Outstanding Debt. Neither the Company nor any of its Subsidiaries has
outstanding any Debt as of the Closing Date except as listed on Part 10D of
Annex 3. There exists no default under the provisions of any instrument
evidencing any Debt of the Company or any of its Subsidiaries or of any
agreement relating thereto.
10E. Title to Properties. Each of the Company and its Subsidiaries has
good and marketable title (subject to Liens of the types described in paragraph
8G(vii)) to its respective real properties (other than properties that it
leases) and good title to all of its other respective Properties, including the
Properties reflected in the most recent audited balance sheet delivered pursuant
to paragraph 7A(ii) (other than Properties disposed of in the ordinary course of
business), subject to no Lien of any kind except Liens permitted by paragraph 8G
hereof. All leases necessary in any material respect for the conduct of the
respective businesses of the Company and its Subsidiaries are valid and
subsisting and are in full force and effect.
10F. Taxes. Each of the Company and its Subsidiaries has filed all
Federal, State and other income tax returns that, to the best knowledge of the
officers of the Company, are required to be filed, and each has paid all taxes
as shown on such returns and on all assessments received by it to the extent
that such taxes have become due, except such taxes as are being contested in
good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP.
10G. Transactions Authorized; Obligations are Enforceable.
(i) Sale of 1998 Notes and 1998 Warrants is Legal and Authorized.
Each of the issuance, sale and delivery of the 1998 Notes and the 1998
Warrants by the Company, the execution and delivery by the Company of this
Agreement and the Financing Documents to which it is a party, and
compliance by the Company with all of the provisions of the Financing
Documents to which it is a party is within the corporate powers of the
Company.
(ii) Subsidiary Guaranty is Legal and Authorized. The execution and
delivery of the Subsidiary Guaranty by each Subsidiary that is a party
thereto, and compliance by each such Subsidiary with all of the provisions
of the Subsidiary Guaranty, is within the corporate powers of each such
Subsidiary.
(iii) Company Obligations are Enforceable. The Company has duly
authorized by all necessary action on its part each of the Financing
Documents to which it is a party. Each of such Financing Documents has
been executed and delivered by one or more duly authorized officers of the
Company, and constitutes
U.S. AGGREGATES, INC. 27 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
a legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except that the enforceability thereof may be:
(a) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
(iv) Subsidiary Obligations are Enforceable. The Subsidiary Guaranty
has been duly authorized by all necessary action on the part of each
Subsidiary that is a party thereto. The Subsidiary Guaranty has been
executed and delivered by one or more duly authorized officers of each
Subsidiary that is a party thereto and constitutes a legal, valid and
binding obligation of each such Subsidiary, enforceable in accordance with
its terms, except that the enforceability thereof may be:
(a) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
10H. Conflicting Agreements and Other Matters.
(i) Conflicting Agreements. Neither the execution nor delivery of
this Agreement or the other Financing Documents, nor the offering,
issuance and sale of the 1998 Notes and the 1998 Warrants, nor fulfillment
of nor compliance with the terms and provisions of this Agreement and the
other Financing 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.
(ii) Limitations on Debt. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing Debt of the Company or such
Subsidiary, any agreement relating thereto or any other contract or
agreement (including its charter) that limits the amount of, or otherwise
imposes restrictions on the incurring of, Debt of the Company of the type
to be evidenced by the Notes except as set forth in the agreements listed
on Part 10H of Annex 3.
10I. Offering of 1998 Notes and 1998 Warrants. Neither the Company nor any
agent acting on its behalf has, directly or indirectly, offered the 1998 Notes
and the 1998 Warrants or any similar Security of the Company for sale to, or
solicited any offers to buy the Notes or any similar Security of the Company
from, or otherwise approached or negotiated with respect hereto with, any Person
other than institutional investors, and
U.S. AGGREGATES, INC. 28 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
neither the Company nor any agent acting on its behalf has taken or will take
any action that would subject the issuance or sale of the 1998 Notes and the
1998 Warrants to the provisions of Section 5 of the Securities Act or to the
provisions of any securities or "blue sky" law of any applicable jurisdiction.
10J. Use of Proceeds. Neither the Company nor any Subsidiary owns or has
any present intention of acquiring any "margin stock" as defined in Regulation U
(12 CFR Part 221) of the Board of Governors of the Federal Reserve System
(herein called "margin stock"). The proceeds from the sale of the 1998 Notes and
the 1998 Warrants will be used to finance the acquisition of Monroc. None of
such proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any margin stock or
for the purpose of maintaining, reducing or retiring any Debt which was
originally incurred to purchase or carry any stock that is currently a margin
stock or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of such Regulation U. Neither the Company
nor any agent acting on its behalf has taken or will take any action which might
cause this Agreement or the Notes to violate Regulation U, Regulation T or any
other regulation of the Board of Governors of the Federal Reserve System or to
violate the Exchange Act, in each case as in effect now or as the same may
hereafter be in effect.
10K. ERISA. No accumulated funding deficiency (as defined in section 302
of ERISA and section 412 of the IRC), whether or not waived, exists with respect
to any Pension Plan. No liability to the PBGC has been or is expected by the
Company to be incurred with respect to any Pension Plan by the Company or any of
its Subsidiaries that could reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries has incurred or
presently expects to incur any withdrawal liability under Title IV of ERISA with
respect to any Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect. The execution and delivery of this Agreement and the
issuance and sale of the 1998 Notes and the 1998 Warrants will not involve any
transaction that is subject to the prohibitions of section 406 of ERISA or in
connection with which a tax could be imposed pursuant to section 4975 of the
IRC. The representation by the Company in the next preceding sentence is made in
reliance upon and subject to the accuracy of the Purchaser's representations in
paragraph 11 hereof as to the source of the funds to be used to pay the purchase
price of the 1998 Notes and 1998 Warrants to be purchased by the Purchaser.
10L. Governmental Consent. Neither the nature of the Company or of any
Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or delivery of the
1998 Notes and the 1998 Warrants 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 after
the Closing Date with the Securities and Exchange Commission and/or state Blue
Sky authorities) in connection with the execution and delivery of this
Agreement, the offering, issuance, sale or delivery of the 1998 Notes and the
1998 Warrants or fulfillment of or compliance with the terms and provisions
hereof or of the other Financing Documents.
10M. Environmental Compliance.
U.S. AGGREGATES, INC. 29 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(i) Compliance. Each of the Company and its Subsidiaries has been,
since its incorporation, complying with, and, on the Closing Date will be
in compliance with, all Environmental Protection Laws in effect in each
jurisdiction where it is presently doing business where any failure or
failures so to comply could, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(ii) Liability. Neither the Company nor any of its Subsidiaries is
subject to any liability under any Environmental Protection Laws that, in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.
10N. Disclosure. Neither this Agreement, the other Financing Documents nor
any other document, certificate or statement furnished to the Purchaser by or on
behalf of the Company or any Subsidiary in connection with the sale of the 1998
Notes and the 1998 Warrants contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading.
10O. Capitalization.
(i) Capitalization. Part 10O(i) of Annex 3 correctly sets forth,
after giving effect to the issuance of the 1998 Notes and the 1998
Warrants and all other contemporaneous transactions contemplated hereby on
the Closing Date:
(a) the authorized and outstanding shares of capital stock of
the Company and each Subsidiary;
(b) for each legal and beneficial holder of the capital stock
of the Company and each Subsidiary, the identity of such holder, the
number of shares of each class of capital stock held by such holder
and the percentage of the shares of each class so held; and
(c) all options, warrants and other rights to purchase any
capital stock of the Company or any Subsidiary, together with
descriptions of the terms thereof.
All such outstanding shares of capital stock have been duly
authorized and validly issued and are fully paid, non-assessable, free and
clear of any Lien (other than as specified in Part 10O(i) of Annex 3).
There are no obligations (contingent or otherwise) of the Company or any
Subsidiary to repurchase or otherwise acquire or retire any shares of its
capital stock (or options to purchase the same), other than as set forth
in the charter documents of the Company and the Restricted Subsidiaries,
and the agreements to which they are parties, specified in Part 10O(i) of
Annex 3. There are no preemptive rights, subscription rights, or other
contractual rights similar in nature to preemptive rights with respect to
any capital stock of the Company or any Subsidiary, other than as set
forth in the Stockholders Agreement and in the charter documents of the
Restricted Subsidiaries, and the agreements to which they are parties,
specified in Part 10O(i) of Annex 3.
U.S. AGGREGATES, INC. 30 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
Part 10O(i) of Annex 3 sets forth (x) the Persons who hold the
options, warrants and other rights referred to in the foregoing clause
(c), together with the respective amounts thereof held by each such
Person, and (y) the maximum percentage of the several classes of capital
stock of the Company and each Subsidiary which each such Person can
obtain, determined on a fully diluted basis as of the Closing Date.
(ii) Reservation of Common Stock for Conversion. The Company has
authorized and unissued, and has reserved for issuance, a sufficient
number of shares of the Common Stock to permit, after giving effect to the
transactions contemplated hereby, the exercise of all of the Warrants and
all other options, warrants and rights exercisable or convertible into the
Common Stock.
Each share of the Common Stock reserved for issuance upon exercise
of the Warrants when issued, will be fully paid and nonassessable, free
and clear of any Lien (other than as specified in Part 10O(ii) of Annex
3), and will not be subject (except as set forth in the Company's
certificate of incorporation and the Stockholders Agreement) to any
preemptive rights.
(iii) Stockholders Agreement. Other than the 1998 Warrant Agreement,
the Stockholders Agreement and as set forth in Part 10O(iii) of Annex 3,
there is no other agreement or understanding between or among the holders
of the capital stock of the Company regarding such capital stock.
11. REPRESENTATIONS OF THE PURCHASER.
11A. Nature of Purchase. You represent that you are not acquiring the 1998
Notes to be purchased by you hereunder with a view to or for sale in connection
with any distribution thereof within the meaning of the Securities Act, provided
that the disposition of your Property shall at all times be and remain within
your control.
11B. ERISA. You represent:
(i) if you are acquiring the 1998 Notes for your own account with
funds from or attributable to your general account, and in reliance upon
the Company's representations set forth in paragraph 10K, that the amount
of the reserves and liabilities for the general account contracts (as
defined by the annual statement for life insurance companies approved by
the National Association of Insurance Commissioners (the "NAIC Annual
Statement")) held by or on behalf of any Pension Plan together with the
amount of the reserves and liabilities for the general account contracts
held by or on behalf of any other Pension Plans maintained by the same
employer (or affiliate thereof, as such term is defined in section V of
DOL Prohibited Transaction Exemption 95-60 (60 FR 35925, July 12, 1995))
or by the same employee organization (as defined in section 3(4) of ERISA)
in the general account do not exceed ten percent (10%) of the total
reserves and liabilities of the general account (exclusive of separate
account liabilities) plus surplus as set forth in the NAIC Annual
Statement filed with the state of domicile of the insurance company; for
purposes of the percentage limitation in this clause (i), the amount of
reserves and liabilities for the general account contracts held by or on
behalf of
U.S. AGGREGATES, INC. 31 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
a Pension Plan shall be determined before reduction for credits on account
of any reinsurance ceded on a coinsurance basis; or
(ii) if any part of the funds being used by you to purchase the 1998
Notes shall come from assets of an employee benefit plan (as defined in
section 3(3) of ERISA) or a plan (as defined in section 4975(e)(1) of the
IRC):
(a) if such funds are attributable to a "separate account" (as
defined in section 3(17) of ERISA), then
(I) all requirements for an exemption under DOL
Prohibited Transaction Exemption 90-1 (issued January 29,
1990) are met with respect to the use of such funds to
purchase the 1998 Notes, or
(II) the employee benefit plans with an interest in such
separate account have been identified in a writing delivered
by you to the Company;
(b) if such funds are attributable to a "separate account" (as
defined in section 3(17) of ERISA) that is maintained solely in
connection with fixed contracted obligations of an insurance
company, any amounts payable, or credited, to any employee benefit
plan having an interest in such account and to any participant or
beneficiary of such plan (including an annuitant) are not affected
in any manner by the investment performance of the separate account;
(c) if such funds are attributable to an "investment fund"
managed by a "qualified plan asset manager" (as such terms are
defined in Part V of DOL Prohibited Transaction Exemption 84-14,
issued March 13, 1984), all requirements for an exemption under such
Exemption are met with respect to the use of such funds to purchase
the 1998 Notes; or
(d) such employee benefit plan is excluded from the provisions
of section 406 of ERISA by virtue of section 4(b) of ERISA.
12. SUBORDINATION.
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), inclusive, 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
U.S. AGGREGATES, INC. 32 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
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,
during a 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
(a) the date the relevant Subordination Event of Default shall
have been cured or waived in writing by the requisite holders of the
Senior Debt,
(b) 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
(c) the date ninety (90) days from the date of receipt of the
applicable Stand-Still Notice.
Notwithstanding the foregoing, (x) during any three hundred sixty-five
(365) day period, the aggregate number of days during which Stand-Still
Periods may be in effect shall not exceed one hundred eighty (180) days,
and (y) in the case of any payment for or on account of any Note which
would (in the absence of the delivery of any such Stand-Still Notice) have
been due and payable on any date during any Stand-Still Period, the
provisions of this subparagraph (iv) shall not prevent such
U.S. AGGREGATES, INC. 33 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
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 a Stand-Still Period (so
long as the Senior Debt shall not have been accelerated during such Stand-Still
Period).
12C. Obligations of the Company Unconditional. The provisions of this
paragraph 12 are for the purpose of defining the relative rights of the holders
of Senior Debt on the one hand, and the holders of the Notes on the other hand,
against the Company and its Property, and nothing herein shall impair, as
between the Company and the holders of the Notes, the obligation of the Company,
which is unconditional and absolute, to pay to the holders thereof the principal
thereof and Yield-Maintenance Amount, if any, and interest thereon in accordance
with their terms and the provisions hereof, nor shall anything herein (other
than paragraph 12B) prevent the holders of the Notes from exercising all
remedies otherwise permitted by applicable law or hereunder upon the occurrence
of an Event of Default (including, without limitation, the right to demand
payment and xxx for performance of the Notes and to accelerate the maturity
thereof) subject to the rights, if any, of holders of Senior Debt to receive
cash, Property, stock or obligations otherwise payable or deliverable by the
Company to the holders of the Notes.
12D. Subrogation. Upon payment in full in cash of all Senior Debt, the
holders of the Notes shall be subrogated to the rights of the holders of the
Senior Debt to receive
U.S. AGGREGATES, INC. 34 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
payments or distributions of assets of the Company made on Senior Debt until the
principal of, and Yield-Maintenance Amount, if any, and interest on, the Notes
shall be paid in full, and, for the purposes of such subrogation, no payments to
the holders of Senior Debt of any cash, Property, stock or obligations to which
the holders of the Notes would be entitled except for the provisions of
paragraph 12A above shall, as between the Company, its creditors (other than the
holders of the Senior Debt) and the holders of the Notes, be deemed to be a
payment by the Company for or on account of Senior Debt.
12E. Certain Definitions. As used in this paragraph 12, the following
terms have the following meanings:
"Senior Debt" shall mean and include all obligations (including,
without limitation, principal, premium, if any, interest, fees, breakage
costs, reimbursement obligations, indemnities and other obligations under
the Bank Credit Agreement, and specifically including interest accruing
subsequent to the occurrence of any event specified in paragraphs 9A(vii),
(viii), (ix) and (x), whether or not the claim for such interest is
allowed or allowable) of the Company under
(i) the Bank Credit Agreement, provided that the aggregate
outstanding principal amount thereof does not exceed the difference
of
(A) One Hundred Seventy-Five Million Dollars
($175,000,000) minus
(B) the aggregate amount of scheduled principal payments
paid in respect of the Term A Loans and the Term B Loans (as
such terms are defined in the Bank Credit Agreement as in
effect on the date hereof); and
(ii) after termination of the Bank Credit Agreement, any
agreement extending or refinancing (without increase in principal
amount) the Debt of the Company outstanding under the Bank Credit
Agreement, provided that such Debt, by its terms, is not pari passu
or subordinated in priority of right of payment to the Notes; and
(iii) all payment obligations of the Company to the Banks or
their Affiliates with respect to interest rate swaps, currency or
commodity swaps, and similar obligations designed to protect the
Company from fluctuations in interest rates, provided that the
aggregate notional amount of all obligations in respect of which
such swap arrangements have been entered into does not at any time
exceed Sixty Million Dollars ($60,000,000).
"Stand-Still Notice" means a written notice from the Agent under the
Bank Credit Agreement to the Company and the Significant Holders,
delivered while a Subordination Event of Default shall be continuing
(other than under circumstances when the terms of subparagraph (ii) of
paragraph 12A hereof are applicable), stating that the holders of Senior
Debt are exercising their rights under subparagraph (iv) of paragraph 12A
hereof.
"Stand-Still Period" has the meaning assigned to it in paragraph
12A(iv).
U.S. AGGREGATES, INC. 35 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Subordination Event of Default" shall mean (i) any default in the
payment of any principal of or interest on any Senior Debt owing under any
single instrument when the same becomes due and payable, or (ii) any event
of default or unmatured event of default under any agreement evidencing
Senior Debt (other than as a result of any non-payment of any amount owing
in respect of such Senior Debt).
13. DEFINITIONS. For the purpose of this Agreement the following terms
shall have the meanings specified with respect thereto below:
13A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to paragraph 6B hereof (any partial
prepayment being applied in satisfaction of required payments of principal in
inverse order of their scheduled due dates) or is declared to be immediately due
and payable pursuant to paragraph 9A hereof, as the context requires.
"Designated Spread" shall mean one percent (1.00%).
"Discounted Value" shall mean, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective scheduled due dates to
the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on a quarterly
basis) equal to the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the Called Principal of
any Note, the sum of the Designated Spread plus the yield to maturity implied by
either,
(i) the yields reported, as of 10:00 A.M. (New York City time) on
the Business Day next preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 678" on the Dow Xxxxx
Markets Service (or such other display as may replace Page 678 on the Dow
Xxxxx Markets Service) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called Principal as
of such Settlement Date, or if such yields shall not be reported as of
such time or the yields reported as of such time shall not be
ascertainable, then
(ii) the Treasury Constant Maturity Series yields reported, for the
latest day for which such yields shall have been so reported as of the
Business Day next preceding the Settlement Date with respect to such
Called Principal, in Federal Reserve Statistical Release H.15 (519) (or
any comparable successor publication) for actively traded U.S. Treasury
securities having a constant maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date.
Such implied yield shall be determined, if necessary, by
(a) converting U.S. Treasury xxxx quotations to bond-equivalent
yields in accordance with accepted financial practice, and
U.S. AGGREGATES, INC. 36 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(b) interpolating linearly between reported yields for various
maturities.
"Remaining Average Life" shall mean, with respect to the Called Principal
of any Note, the number of years (calculated to the nearest one-twelfth year)
obtained by dividing
(i) such Called Principal into
(ii) the sum of the products obtained by multiplying
(a) each Remaining Scheduled Payment of such Called Principal
(but not of interest thereon) by
(b) the number of years (calculated to the nearest one-twelfth
(1/12) year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"Settlement Date" shall mean, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
paragraph 6B hereof or is declared to be immediately due and payable pursuant to
paragraph 9A hereof, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to any Note, a premium
equal to the excess, if any, of the Discounted Value of the Called Principal of
such Note over the sum of
(i) such Called Principal plus
(ii) interest accrued thereon as of (including interest due on) the
Settlement Date with respect to such Called Principal.
The Yield-Maintenance Amount shall in no event be less than zero.
13B. Other Terms.
"Acquisition Loan" means any loan or other incurrence of Debt made in
connection with a Permitted Acquisition.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly controls, or is controlled by, or is under direct or
indirect common control with, such first Person. For purposes of this Agreement,
Restricted Subsidiaries shall not constitute "Affiliates" of the Company. A
Person shall be deemed to control another Person if such first Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the
U.S. AGGREGATES, INC. 37 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
ownership of voting securities or other equity interests, by contract or
otherwise. In the case of a partnership, such partnership and all partners
therein shall be deemed to be Affiliates of each other.
"Agent" means, at any time, the agent for the Banks under the Bank Credit
Agreement at such time.
"Bank" means each of the institutions identified as a "Bank" under the
Bank Credit Agreement.
"Bank Credit Agreement" means that certain Third Amended and Restated
Credit Agreement, dated as of June 5, 1998, by and among the Company, Bank of
America National Trust and Savings Association (as successor by merger to Bank
of America Illinois), as agent, and the other financial institutions signatory
thereto, as amended from time to time (except as otherwise specifically provided
herein).
"Bankruptcy Law" has the meaning assigned to it in paragraph 9A(viii).
"book value" has the meaning assigned to it in paragraph 8I(iii).
"Budget" means the Company's budget for each of its fiscal years, prepared
on a monthly basis for each such fiscal year and including projected income
statements, balance sheets, statements of cash flows and pro forma calculations
in respect of the covenants set forth in paragraph 8 hereof as of the end of
each such month (or, with respect to covenant compliance which is determined
quarterly, as of the end of each fiscal quarter of such fiscal year).
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or permitted by law
(other than a general banking moratorium or holiday for a period exceeding four
(4) consecutive days) to be closed.
"Calculation Date" has the meaning assigned to it in paragraph 8C.
"Capital Lease" means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of such Person.
"Capital Lease Obligation" means any rental obligation which, under GAAP,
is or will be required to be capitalized on the books of the Company or any
Subsidiary, taken at the amount thereof accounted for as indebtedness (net of
interest expense) in accordance with GAAP.
"Change in Control" has the meaning assigned to it in paragraph 6C(iv)(a).
"Charter Amendment" means an amendment to the Company's certificate of
incorporation in the form of Exhibit H hereto.
"Closing" has the meaning assigned to it in paragraph 4(i).
U.S. AGGREGATES, INC. 38 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Closing Date" has the meaning assigned to it in paragraph 4(i).
"Common Stock" means the outstanding common stock, par value $.01 per
share, of the Company.
"Company" has the meaning assigned to it in the introductory sentence of
this Agreement.
"Competitor" means any Person engaged in the aggregates, or related
materials and services, business; provided that in no event shall any insurance
company, bank, bank holding company, investment company, savings institution or
trust company, investment banking firm, fraternal benefit society, pension,
retirement or profit-sharing trust or fund, or any other similar financial
institution be deemed to be a Competitor for purposes of this Agreement.
"Consolidated Capital Expenditures" means, for any period, all
expenditures which, in accordance with GAAP, would be required to be capitalized
and shown on the consolidated balance sheet of the Company, but excluding (a)
payments on the Lohja Note and Investments in preferred stock issued by Dekalb
Stone (to the extent such payments or Investments constitute capital
expenditures), (b) expenditures made in connection with the replacement,
substitution or restoration of assets to the extent financed (i) from insurance
proceeds (or other similar recoveries) paid on account of the loss of or damage
to the assets being replaced or restored, or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets being
replaced and (c) Acquisition Capital Expenditures to the extent that Acquisition
Capital Expenditures during such period do not exceed Twelve Million Five
Hundred Thousand Dollars ($12,500,000).
As used in this definition,
"Acquisition Capital Expenditures" means the aggregate amount of all
expenditures of the Company and its Subsidiaries for fixed or capital
assets made in connection with a Permitted Acquisition on or reasonably
near the date of such Permitted Acquisition.
"Lohja Note" means the Promissory Note dated July 13, 1994 issued by
the Company to the order of Lohja Inc. in the original principal amount of
Three Million Seven Hundred Fifty-Nine Thousand Five Hundred Dollars
($3,759,500).
"Consolidated Debt" means, at any time, the sum, without duplication, of
(i) all Debt (other than Debt described in clauses (vi) and (vii) of
the definition of Debt) of the Company and its Restricted Subsidiaries,
plus
(ii) all Suretyship Liabilities of the Company and its Restricted
Subsidiaries in respect of Debt (other than Debt described in clause (vi)
of the definition of Debt) of any other Person,
determined in accordance with GAAP on a consolidated basis at such time after
eliminating all intercompany transactions.
U.S. AGGREGATES, INC. 39 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Consolidated Fixed Charges" means, in respect of any period of four (4)
consecutive fiscal quarters of the Company, the sum of
(i) Consolidated Interest Expense in respect of such period, plus
(ii) Consolidated Capital Expenditures made during such period, plus
(iii) taxes paid in cash by the Company and its Restricted
Subsidiaries during such period, plus
(iv) all scheduled principal payments due on any Consolidated Debt
during such period, other than any principal payments to be made as a
result of any mandatory reduction of commitments under the Revolving
Credit Facility.
"Consolidated Interest Expense" means, in respect of any period, the
consolidated interest expense (net of consolidated interest income) of the
Company and its Restricted Subsidiaries for such period (excluding any interest
expense in respect of the Xxxxxx Trust Note and excluding any interest expense
accrued but not paid on the Notes but including any interest expense with
respect to the Notes which was accrued prior to such period but paid during such
period).
"Consolidated Net Income" means, with respect to the Company and its
Restricted Subsidiaries for any period, the consolidated net income (or loss) of
the Company and its Restricted Subsidiaries for such period before accounting
for minority interests, excluding extraordinary items; provided that there shall
be excluded therefrom the income of any Restricted Subsidiary to the extent that
the declaration or payment of dividends or similar distributions to the Company
(or any other Restricted Subsidiary) by such Restricted Subsidiary of such
income is not at the time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary.
"Consolidated Net Revenues" means, with respect to the Company and its
Restricted Subsidiaries for any period, the total net sales of the Company and
its Restricted Subsidiaries that would be shown on a statement of operations of
the Company and its Restricted Subsidiaries prepared in accordance with GAAP for
such period.
"Consolidated Net Worth" means, at any time, the total shareholders'
equity of the Company and its Restricted Subsidiaries, determined at such time
in accordance with GAAP.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and its Restricted Subsidiaries which would be shown as assets on a
consolidated balance sheet of the Company and its Restricted Subsidiaries as of
such time prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and surplus of
Restricted Subsidiaries.
"Control Event Notice" has the meaning assigned to it in paragraph 6C(i).
U.S. AGGREGATES, INC. 40 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Control Payment Date" has the meaning assigned to it in paragraph 6C(i).
"Debt" means, with respect to any Person (without duplication), all of the
following:
(i) all indebtedness of such Person for borrowed money, whether or
not evidenced by bonds, debentures, notes or similar instruments;
(ii) all obligations of such Person as lessee under Capital Leases
which have been recorded as liabilities on the balance sheet of such
Person;
(iii) all obligations of such Person to pay the deferred purchase
price of Property or services (other than current accounts payable and
accrued expenses arising in the ordinary course of business);
(iv) all indebtedness secured by a Lien on the Property of such
Person whether or not such indebtedness shall have been assumed by such
Person;
(v) all obligations, contingent or otherwise, with respect to the
face amount of all letters of credit (whether or not drawn) and banker's
acceptances issued for the account of such Person;
(vi) all obligations of such Person in respect of Hedging
Arrangements;
(vii) all Suretyship Liabilities of such Person; and
(viii) all obligations of the type set forth in clauses (i) through
(vii) of this definition of a partnership of which such Person is a
general partner.
The amount of the Debt of any Person in respect of Hedging Arrangements shall be
deemed to be the unrealized net loss position of such Person thereunder
(determined for each counterparty individually, but netted for all Hedging
Arrangements maintained with such counterparty).
"Dekalb Stone" means Dekalb Stone, Inc., a Georgia corporation.
"Disposition Value" has the meaning assigned to it in paragraph 8I(iii).
"EBITDA" means, in respect of any period, Consolidated Net Income for such
period plus to the extent deducted in the computation of such Consolidated Net
Income, each of the following:
(i) Consolidated Interest Expense,
(ii) taxes imposed on or measured by income or excess profits of the
Company and its Restricted Subsidiaries, and
(iii) the amount of all depreciation, amortization and depletion
allowances of the Company and its Restricted Subsidiaries,
U.S. AGGREGATES, INC. 41 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
provided that for purposes of determining compliance with paragraph 8C hereof
only, EBITDA with respect to any such period shall be adjusted to include the
historical EBITDA of any Restricted Subsidiary that was acquired (a) during such
period, and (b) if the Calculation Date is the date of any Acquisition Loan, on
the Calculation Date, as if such Restricted Subsidiary had been acquired on the
first day of such period.
"Environmental Protection Law" means any federal, state, county, regional,
local or foreign law, statute, or regulation (including, without limitation,
CERCLA, RCRA and XXXX) enacted in connection with or relating to the protection
or regulation of the environment, including, without limitation, those laws,
statutes, and regulations regulating the disposal, removal, production, storing,
refining, handling, transferring, processing, or transporting of Hazardous
Substances, and any regulations issued or promulgated in connection with such
statutes by any Governmental Authority and any orders, decrees or judgments
issued by any court of competent jurisdiction in connection with any of the
foregoing.
As used in this definition,
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time (by
XXXX or otherwise), and all rules and regulations promulgated in
connection therewith;
"Hazardous Substances" has the meaning assigned to such term in 42
U.S.C. Section 9601(14), as amended from time to time;
"RCRA" means the Resource Conservation and Recovery Act of 1976, as
amended, and any rules and regulations issued in connection therewith; and
"XXXX" means the Superfund Amendments and Reauthorization Act of
1986, as amended from time to time, and all rules and regulations
promulgated in connection therewith.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" means any corporation or trade or business that
(i) is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the IRC) as the Company,
(ii) is under common control (within the meaning of Section 414(c)
of the IRC) with the Company, or
(iii) is a member of the same affiliated service group (within the
meaning of Section 414(m)(2) of the IRC) as the Company.
"Event of Default" means any of the events specified in paragraph 9A,
provided that there has been satisfied any requirement in connection with such
event for the giving of notice, or the lapse of time, or the happening of any
further condition, event or act, and
U.S. AGGREGATES, INC. 42 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Default" means any of such events, whether or not any such requirement has been
satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Existing Bank" means any Bank that is a party to the Bank Credit
Agreement as of the Closing Date.
"Fair Market Value" means, at any time with respect to any Property, the
sale value of such Property that would be realized in an arm's-length sale at
such time between an informed and willing buyer, and an informed and willing
seller, under no compulsion to buy or sell, respectively.
"Financing Documents" means this Agreement, the 1998 Notes, the 1998
Warrant Agreement, the 1998 Warrants, the 1998 Warrant Certificates, the
Registration Rights Agreement, the Charter Amendment, the Subsidiary Guaranty
and all other agreements, certificates and instruments to be executed by the
Company or any Subsidiary pursuant to the terms of any of the forgoing, as each
may be amended, restated or otherwise modified from time to time.
"GAAP" means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board and in such
statements, opinions and pronouncements of such other entities with respect to
financial accounting of for-profit entities as shall be accepted by a
substantial segment of the accounting profession in the United States.
"Governmental Authority" means
(i) the government of
(a) the United States of America, any state or other political
subdivision thereof, or
(b) any other jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or that asserts
any jurisdiction over the conduct of the affairs, or the Property,
of the Company or any Subsidiary, and
(ii) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"GTCR LP" means Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV L.P., an Illinois
limited partnership.
"GTCR, Inc." means Golder, Thoma, Cressey, Rauner, Inc., a Delaware
corporation.
U.S. AGGREGATES, INC. 43 AMENDED AND RESTATED NOTE AND
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"Guaranty" means, with respect to any Person (for the purposes of this
definition, the "Guarantor"), any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person (the "Primary Obligor") in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by the Guarantor:
(i) to purchase such indebtedness or obligation or any Property
constituting security therefor;
(ii) to advance or supply funds
(a) for the purchase or payment of such indebtedness, dividend
or obligation, or
(b) to maintain working capital or other balance sheet
condition or any income statement condition of the Primary Obligor
or otherwise to advance or make available funds for the purchase or
payment of such indebtedness, dividend or obligation;
(iii) to lease Property or to purchase Securities or other Property
or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the Primary Obligor to make
payment of the indebtedness or obligation; or
(iv) otherwise to assure the owner of the indebtedness or obligation
of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty, in connection with any
computation of indebtedness or other liability,
(x) in each case where the obligation that is the subject of such
Guaranty is in the nature of indebtedness for money borrowed, it shall be
assumed that the amount of the Guaranty is the amount of the direct
obligation then outstanding, and
(y) in each case where the obligation that is the subject of such
Guaranty is not in the nature of indebtedness for money borrowed, it shall
be assumed that the amount of the Guaranty is the amount (if any) of the
direct obligation that is then due.
Standard contractual indemnities by such Person of its own goods and services in
the ordinary course of business shall be deemed not to be Guaranties.
"Xxxxxx Trust Note" means the $9,000,000 Unsecured Note, dated March 12,
1998, of the Company payable on demand to Xxxxxx Trust and Savings Bank.
"Hedging Arrangement" means any interest rate, currency or commodity swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
U.S. AGGREGATES, INC. 44 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
agreement or arrangement designed to protect a Person against fluctuations in
interest rates.
"Institutional Holder" means each original purchaser of a Notes and any of
its affiliates, and any other holder of a Note that is an insurance company,
bank, trust company, investment company, investment banking firm, pension plan
or trust, profit sharing trust, university, charitable or educational foundation
or other similar Person which, in the ordinary course of its business, acquires
investments such as the Notes.
"Intergroup Transfer" has the meaning assigned to it in paragraph 8I(i).
"Investments" means
(a) any loans or advances to, or purchases or acquisitions of the
Securities or obligations of, any Person, or
(b) the assumption of any liability of another Person,
provided, that no Investment shall be deemed to arise from
(i) the acquisition by the Company or any Restricted Subsidiary of
its capital stock or the Warrants, or
(ii) the sale of inventory in the ordinary course of business.
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time, and all rules and regulations promulgated thereunder.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof, and the filing of or agreement to give any financing statement under
the Uniform Commercial Code of any jurisdiction).
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations, affairs, financial condition, or Properties of the Company
and its Subsidiaries, taken as a whole, (ii) the ability of the Company to
perform its obligations under this Agreement or any other Financing Document,
(iii) the ability of any Subsidiary to perform its obligations under the
Subsidiary Guaranty, or (iv) the validity or enforceability of this Agreement or
the Notes.
"Merger" means the merger of Western Acquisition with and into Monroc
pursuant to the terms of the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
January 29, 1998, and amended and restated as of March 4, 1998, among the
Company, Western Acquisition and Monroc.
"Monroc" means Monroc, Inc., a Delaware corporation.
U.S. AGGREGATES, INC. 45 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Multiemployer Plan" means any "multiemployer plan" (as such term is
defined in section 3(37) of ERISA) in respect of which the Company or any ERISA
Affiliate is an "employer" (as such term is defined in section 3(5) of ERISA).
"NAIC Annual Statement" has the meaning assigned to it in paragraph
11B(i).
"Net Proceeds Amount" has the meaning assigned to it in paragraph 8I(iii).
"1996 Notes" has the meaning assigned to it in paragraph 1.
"1996 Purchase Agreement" has the meaning assigned to it in paragraph 1.
"1996 Warrants" has the meaning assigned to it in paragraph 1.
"1998 Notes" has the meaning assigned to it in paragraph 3(i).
"1998 Warrant Agreement" has the meaning assigned to it in paragraph
3(ii).
"1998 Warrant Certificates" has the meaning assigned to it in paragraph
3(ii).
"1998 Warrants" has the meaning assigned to it in paragraph 3(ii).
"Notes" has the meaning assigned to it in paragraph 3(i).
"Notice Event" has the meaning assigned to such term in paragraph
6C(iv)(b).
"Officer's Certificate" means a certificate of a Responsible Officer of
the Company.
"Ordinary Course Transfer" has the meaning assigned to it in paragraph
8I(i).
"PBGC" means the Pension Benefit Guaranty Corporation, and its successors
and assigns.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in section 3(2) of ERISA) maintained by the Company or any ERISA
Affiliate for employees of the Company or such ERISA Affiliate, excluding any
Multiemployer Plan, but including, without limitation, any Multiple Employer
Pension Plan.
As used in this definition,
"Multiple Employer Pension Plan" means any employee benefit plan
within the meaning of Section 3(3) of ERISA (other than a Multiemployer
Plan), subject to Title IV of ERISA, to which the Company or any ERISA
Affiliate and an employer (as such term is defined in Section 3 of ERISA),
other than an ERISA Affiliate or the Company, contribute.
"Permitted Acquisition" means any purchase or acquisition by the Company
or any Subsidiary of all or substantially all of the assets of any other Person
(or of a particular
U.S. AGGREGATES, INC. 46 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
business unit of any other Person), or of any equity interest in any other
Person, in each case which is engaged in the aggregates, or related materials
and services, business.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an estate, an unincorporated
organization and a government or any political subdivision or agency or
instrumentality thereof.
"Prior Closing Date" means November 22, 1996.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
"Property Reinvestment Application" has the meaning assigned to it in
paragraph 8I(iii).
"Purchaser" has the meaning assigned to it in the introductory sentence of
this Agreement.
"Receivables" means any accounts, contract rights and other forms of
obligations for the payment of money arising from the sale of goods or the
rendering of services by the Company or any of its Restricted Subsidiaries.
"Registration Rights Agreement" means the Registration Rights and
Stockholders' Agreement, dated as of November 21, 1996, by and among the
Company, Senior Management, GTCR LP and The Prudential Insurance Company of
America, as amended by the First Amendment to Registration Rights and
Stockholders' Agreement, dated as of June 5, 1998.
"Required Holders" means the holder or holders of more than fifty percent
(50%) of the aggregate principal amount of the Notes from time to time
outstanding, exclusive of Notes owned by the Company, any Subsidiary or any
Affiliate of the Company.
"Responsible Officer" means each of the President, any Vice President and
the Treasurer of the Company.
"Restricted Investments" means all Investments except the following:
(i) Investments existing on the Closing Date and identified in Part
13A of Annex 3;
(ii) the following Investments (sometimes referred to as "Cash
Equivalent Investments"):
(a) any evidence of Debt, maturing not more than one (1) year
from the date of acquisition thereof, issued or guaranteed by the
United States Government;
(b) commercial paper, maturing not more than one (1) year from
the date of issue, which is issued by
U.S. AGGREGATES, INC. 47 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(I) a corporation (except the Company, a Restricted
Subsidiary or an Affiliate of the Company) organized under the
laws of any state of the United States of America or the
District of Columbia and rated at least A-1 by Standard &
Poor's Ratings Group or P-1 by Xxxxx'x Investors Service, Inc.
at the time of investment, or
(II) a commercial bank organized in the United States of
America and which has capital and surplus of at least Five
Hundred Million Dollars ($500,000,000) (an "Acceptable Bank"),
or
(III) any Existing Bank;
(c) any certificate of deposit or banker's acceptance or
eurocurrency time deposit, maturing not more than one (1) year from
the date of issue, which is issued by an Acceptable Bank or an
Existing Bank;
(d) any repurchase agreement with a term of one (1) year or
less which
(I) is entered into with an Acceptable Bank or an
Existing Bank,
(II) is secured by a fully perfected Lien in any
obligation of the type described in any of clauses (a) through
(c) above, and
(III) has a market value at the time such repurchase
agreement is entered into of not less than one hundred percent
(100%) of the repurchase obligation of such Acceptable Bank or
Existing Bank thereunder;
(e) Investments in money market mutual funds registered with
the Securities and Exchange Commission meeting the requirements of
Rule 2a-7 promulgated under the Investment Company Act of 1940, as
amended;
(f) participations in short-term loans to any corporation
(other than an Affiliate of the Company) organized under the laws of
any state of the United States of America or the District of
Columbia and rated at least A-1 by Standard & Poor's Ratings Group
or P-1 by Xxxxx'x Investors Service, Inc.; or
(g) Investments in short-term asset management accounts
offered by an Acceptable Bank for the purpose of investing in loans
to any corporation (other than an Affiliate of the Company)
organized under the laws of any state of the United States of
America or the District of Columbia and rated at least A-1 by
Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investors Service,
Inc.;
U.S. AGGREGATES, INC. 48 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(iii) Investments by the Company in its Restricted Subsidiaries or
by any Restricted Subsidiary in any other Restricted Subsidiary, in the
form of contributions to capital or loans or advances; provided that,
immediately before and after giving effect to such Investment, no Default
or Event of Default shall have occurred and be continuing;
(iv) Investments by the Company or any Restricted Subsidiary in any
Restricted Subsidiary, in the form of capital contributions existing on
the Closing Date;
(v) loans or advances by any Restricted Subsidiary to the Company;
(vi) loans or advances to officers and employees of the Company or
any Restricted Subsidiary (a) for travel or other ordinary business
expenses in an amount not in excess of One Hundred Thousand Dollars
($100,000) in the aggregate at any time and (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 at any time;
(vii) loans or advances to, or deposits with, contractors and
suppliers in the ordinary course of business not in excess of Five Hundred
Thousand Dollars ($500,000) in the aggregate at any time;
(viii) bank deposits in the ordinary course of business, provided
that the aggregate amount of all such deposits, other than deposits (x)
with any Existing Bank, (y) with any bank that has executed a blocked
account agreement reasonably satisfactory to the Required Holders and (z)
in imprest payroll accounts, shall not at any time exceed One Million
Dollars ($1,000,000) for more than three (3) consecutive days;
(ix) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods and services in
the ordinary course of business;
(x) shares of stock, obligations or other securities received by the
Company or any Restricted Subsidiary in settlement of claims arising in
the ordinary course of business;
(xi) Permitted Acquisitions;
(xii) Investments received as proceeds of any sale of assets so long
as such Investments are reasonably satisfactory to the Required Holders;
and
(xiii) Guaranties of the Notes and Senior Debt by Subsidiaries.
"Restricted Subsidiary" means, at any time,
U.S. AGGREGATES, INC. 49 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(i) a corporation incorporated in the United States of America of
which the Company owns, directly or indirectly, eighty percent (80%) or
more of the Voting Stock of such corporation at such time; and
(ii) Dekalb Stone, provided that the Company owns, directly or
indirectly, seventy percent (70%) or more of the Voting Stock of Dekalb
Stone at such time.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" has the meaning set forth in Section 2(1) of the Securities
Act.
"Senior Debt" has the meaning assigned to it in paragraph 12E.
"Senior Management" means Xxxxx X. Xxxxxx, the President of the Company,
and Xxxxxxx X. Xxxxx, the Chief Financial Officer of the Company.
"Series" means the 1996 Notes or the 1998 Notes.
"Significant Holders" shall mean, at any time, (i) The Prudential
Insurance Company of America and (ii) each other holder of at least ten percent
(10%) of the aggregate principal amount of the Notes at such time outstanding,
exclusive of Notes owned by the Company, any Subsidiary or any Affiliate of the
Company.
"Stand-Still Notice" has the meaning assigned to it in paragraph 12E.
"Stand-Still Period" has the meaning assigned to it in paragraph 12E.
"Stock and Intercompany Note Pledge" means the pledge of the capital stock
of Subsidiaries and intercompany notes of the Company and its Subsidiaries as
security for the Senior Debt.
"Stockholders Agreement" means that certain Stockholders Agreement, dated
as of January 24, 1994, by and among the Company (formerly USAI Acquisition
Corp.), a Delaware corporation, GTCR LP, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx,
Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxxxxx (by joinder on August 1, 1994), Xxxxxxx
Xxxxxx (by joinder on October 31, 1994), and Xxxxxx Xxxxxx, Xx. (by joinder on
August 5, 1994).
"Subordination Event of Default" has the meaning assigned to it in
paragraph 12E.
"Subsidiary" means, at any time, a corporation of which the Company owns,
directly or indirectly, more than fifty percent (50%) of the Voting Stock at
such time.
"Subsidiary Guaranty" has the meaning set forth in paragraph 5F.
"Subsidiary Stock" means the stock or equity interests (or any warrants,
rights or options to acquire, or securities exchangeable or convertible into,
such stock or other equity interest) of any Restricted Subsidiary.
"Successor Corporation" has the meaning assigned to it in paragraph
8H(iv).
U.S. AGGREGATES, INC. 50 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
"Suretyship Liability" means any agreement, undertaking or other
contractual arrangement (but excluding completion and performance bonding in the
ordinary course of business) by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to or otherwise to invest in a debtor, or otherwise to assure a creditor
against loss) any indebtedness, obligation or other liability (including
accounts payable) of any other Person (other than by endorsements of instruments
in the course of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person. The amount of any Person's
obligation under any Suretyship Liability shall (subject to any limitation set
forth therein) be deemed to be the principal amount of the indebtedness,
obligation or other liability guaranteed thereby.
"Total Assets" has the meaning assigned to it in paragraph 8I(iii).
"Transfer" has the meaning assigned to it in paragraph 8I(iii).
"Transferee" means any direct or indirect transferee of all or any part of
any Note purchased by the Purchaser under this Agreement.
"Voting Stock" means, with respect to any corporation, any shares of
capital stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
"Warrants" means the 1996 Warrants and the 1998 Warrants.
"Western Acquisition" means Western Acquisition, Inc., a Delaware
corporation.
"Wholly-Owned Subsidiary" means any Subsidiary one hundred percent (100%)
of the Voting Stock and equity interests of which are owned by any one or more
of the Company and/or other Wholly-Owned Subsidiaries.
13C. Accounting Principles, Terms and Determinations. All references in
this Agreement to "GAAP" or "generally accepted accounting principles" shall be
deemed to refer to generally accepted accounting principles in effect in the
United States at the time of application thereof. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all unaudited financial statements and certificates and reports as to financial
matters required to be furnished hereunder shall be prepared, in accordance with
generally accepted accounting principles, applied on a basis consistent with the
most recent audited consolidated financial statements of the Company and its
Subsidiaries delivered pursuant to clause (ii) of paragraph 7A.
14. MISCELLANEOUS.
14A. Note Payments. The Company agrees that, so long as the Purchaser
shall hold any Note, it will make payments of principal of, interest on and any
Yield-Maintenance Amount payable with respect to such Note, by wire transfer of
immediately
U.S. AGGREGATES, INC. 51 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
available funds for credit (not later than 12:00 noon, New York City time, on
the date due) to the Purchaser's account or accounts as specified in the
Purchaser Schedule attached hereto, or such other account or accounts in the
United States as the Purchaser may designate in writing, notwithstanding any
contrary provision herein or in any Note with respect to the place of payment.
The Purchaser agrees that, before disposing of any Note, the Purchaser will make
a notation thereon (or on a schedule attached thereto) of all principal payments
previously made thereon and of the date to which interest thereon has been paid.
The Company agrees to afford the benefits of this paragraph 14A to any
Transferee which shall have made the same agreement as the Purchaser has made in
this paragraph 14A.
14B. Expenses. The Company agrees, whether or not the transactions
contemplated hereby shall be consummated, to pay, and save the Purchaser and any
Transferee harmless against liability for the payment of, all out-of-pocket
expenses arising in connection with such transactions, including (i) all
document production and duplication charges and the fees and expenses of any
special counsel engaged by the Purchaser or such Transferee in connection with
this Agreement, the transactions contemplated hereby and any subsequent proposed
modification of, or proposed consent under, this Agreement, whether or not such
proposed modification shall be effected or proposed consent granted, and (ii)
the costs and expenses, including attorneys' fees, incurred by the Purchaser or
such Transferee in enforcing (or determining whether or how to enforce) any
rights under this Agreement or the Notes or in responding to any subpoena or
other legal process or informal investigative demand issued in connection with
this Agreement or the transactions contemplated hereby or by reason of the
Purchaser's or such Transferee's having acquired any Note, including without
limitation costs and expenses incurred in any bankruptcy case; provided,
however, that the obligations of the Company under this paragraph 14B shall not
include the payment of any fees or expenses arising in connection with any
investigation or proceeding relating to the legal or regulatory status of the
Purchaser or any Transferee. The obligations of the Company under this paragraph
14B shall survive the transfer of any Note or portion thereof or interest
therein by the Purchaser or any Transferee and the payment of any Note.
14C. Consent to Amendments. This Agreement may be amended, and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Company shall obtain the written consent
to such amendment, action or omission to act, of the Required Holder(s) except
that, without the written consent of the holder or holders of all Notes at the
time outstanding, no amendment to this Agreement shall change the maturity of
any Note, or change the principal of, or the rate or time of payment of interest
on or any Yield-Maintenance Amount payable with respect to any Note, or affect
the time, amount or allocation of any prepayments, or change the proportion of
the principal amount of the Notes required with respect to any consent,
amendment, waiver or declaration. Notwithstanding the foregoing, no amendment
may be made to paragraph 12 (or this sentence) without the consent of the Agent
and the Required Banks (as defined in the Bank Credit Agreement). Each holder of
any Note at the time or thereafter outstanding shall be bound by any consent
authorized by this paragraph 14C, whether or not such Note shall have been
marked to indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note
U.S. AGGREGATES, INC. 52 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
shall operate as a waiver of any rights of any holder of such Note. As used
herein and in the Notes, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
14D. Form, Registration, Transfer and Exchange of Notes; Lost Notes. The
Notes are issuable as registered notes without coupons in denominations of at
least One Hundred Thousand Dollars ($100,000), except as may be necessary to
reflect any principal amount not evenly divisible by One Hundred Thousand
Dollars ($100,000). The Company shall keep at its principal office a register in
which the Company shall provide for the registration of Notes and of transfers
of Notes. Upon surrender for registration of transfer of any Note at the
principal office of the Company, the Company shall, at its expense, execute and
deliver one or more new Notes of like tenor and of a like aggregate principal
amount, registered in the name of such transferee or transferees; provided that
no holder of any Note shall transfer such Note or any portion there if such
transfer would be to a Competitor. At the option of the holder of any Note, such
Note may be exchanged for other Notes of like tenor and of any authorized
denominations, of a like aggregate principal amount, upon surrender of the Note
to be exchanged at the principal office of the Company. Whenever any Notes are
so surrendered for exchange, the Company shall, at its expense, execute and
deliver the Notes which the holder making the exchange is entitled to receive.
Every Note surrendered for registration of transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or such holder's attorney duly authorized in writing.
Any Note or Notes issued in exchange for any Note or upon transfer thereof shall
carry the rights to unpaid interest and interest to accrue which were carried by
the Note so exchanged or transferred, so that neither gain nor loss of interest
shall result from any such transfer or exchange. Upon receipt of written notice
from the holder of any Note of the loss, theft, destruction or mutilation of
such Note and, in the case of any such loss, theft or destruction, upon receipt
of such holder's unsecured indemnity agreement, or in the case of any such
mutilation upon surrender and cancellation of such Note, the Company will make
and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or
mutilated Note. Upon receipt of written notice from the Agent or any Bank at any
time, the Company agrees to promptly provide the Agent or such Bank, in writing,
with the names and addresses of the registered holders of the Notes at such
time, and the Agent or such Bank, as the case may be, shall be permitted to rely
conclusively on such written notice from the Company.
14E. Persons Deemed Owners; Participations. Prior to due presentment for
registration of transfer, the Company may treat the Person in whose name any
Note is registered as the owner and holder of such Note for the purpose of
receiving payment of principal of, interest on and any Yield-Maintenance Amount
payable with respect to such Note and for all other purposes whatsoever, whether
or not such Note shall be overdue, and the Company shall not be affected by
notice to the contrary. Subject to the preceding sentence, the holder of any
Note may from time to time grant participations in such Note to any Person on
such terms and conditions as may be determined by such holder in its sole and
absolute discretion, provided that any such participation shall be in a
principal amount of at least One Hundred Thousand Dollars ($100,000).
14F. Survival of Representations and Warranties; Entire Agreement. All
representations and warranties contained herein or made in writing by or on
behalf of the Company in connection herewith shall survive the execution and
delivery of this
U.S. AGGREGATES, INC. 53 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
Agreement and the Notes, the transfer by the Purchaser of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon
by any Transferee, regardless of any investigation made at any time by or on
behalf of the Purchaser or any Transferee. Subject to the preceding sentence,
this Agreement and the Notes embody the entire agreement and understanding
between the Purchaser and the Company and supersede all prior agreements and
understandings relating to the subject matter hereof, provided that all
representations and warranties contained in the 1996 Purchase Agreement or made
in writing by or on behalf of the Company in connection therewith shall survive
the execution and delivery of this Agreement.
14G. Successors and Assigns. All covenants and other agreements in this
Agreement contained 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.
14H. Notices. All written communications provided for hereunder shall be
delivered either by nationwide overnight courier or by facsimile transmission
(confirmed by delivery by national overnight courier sent on the day of the
sending of such facsimile transmission), and shall be addressed to the following
addresses:
(i) if to the Purchaser, addressed to the Purchaser at the address
specified for such communications in the Purchaser Schedule attached
hereto, or at such other address as the Purchaser shall have specified to
the Company in writing,
(ii) if to any other holder of any Note, addressed to such other
holder at such address as such other holder shall have specified to the
Company in writing or, if any such other holder shall not have so
specified an address to the Company, then addressed to such other holder
in care of the last holder of such Note which shall have so specified an
address to the Company, and
(iii) if to the Company, addressed to it at 000 Xxxxx Xx Xxxxxx
Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx,
with a copy to Xxxxxxxx & Xxxxx, 000 X. Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxx X. Xxxxx, or at such other address as the Company
shall have specified to the holder of each Note in writing; provided,
however, that any such communication to the Company may also, at the
option of the holder of any Note, be delivered by any other means either
to the Company at its address specified above or to any officer of the
Company.
Any communication addressed and delivered as herein provided shall be deemed to
be received when actually delivered to the address of the addressee (whether or
not delivery is accepted) or received by the telecopy machine of the recipient.
Any communication not so addressed and delivered shall be ineffective.
14I. Payments Due on Non-Business Days. Anything in this Agreement or the
Notes to the contrary notwithstanding, any payment of principal of, interest on,
or Yield-Maintenance Amount with respect to, any Note that is due on a date
other than a Business Day shall be made on the next succeeding Business Day. If
the date for any payment is extended to the next succeeding Business Day by
reason of the preceding
U.S. AGGREGATES, INC. 54 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
sentence, the period of such extension shall be included in the computation of
the interest payable on such Business Day.
14J. Disclosure to Other Persons. For purposes of this paragraph 14J,
"Confidential Information" means information delivered to the Purchaser or other
holder of Notes, if any, by or on behalf of the Company or any of the
Subsidiaries in connection with the transactions contemplated by or otherwise
pursuant to this Agreement or any other Financing Document that is proprietary
in nature and that was identified when received by the Purchaser or other
Noteholder as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
or otherwise known to the Purchaser or other holder of Notes prior to the time
of such disclosure, (b) subsequently becomes publicly known through no act or
omission by the Purchaser or other holder of Notes or any Person acting on
behalf of the Purchaser or other holder of Notes, (c) otherwise becomes known to
the Purchaser or other holder of Notes other than through disclosure by the
Company or such Subsidiary or (d) constitutes financial statements delivered to
the holders of Notes pursuant to this Agreement that are otherwise publicly
available. Each holder of Notes will use its best efforts to maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such holder in good faith to protect confidential information of
third parties delivered to such holder. The Company acknowledges that the holder
of any Note may deliver copies of any financial statements and other documents
delivered to such holder, and disclose any other information disclosed to such
holder, by or on behalf of the Company or any Subsidiary in connection with or
pursuant hereto to:
(i) such holder's directors, officers, employees, agents and
professional consultants,
(ii) any other holder of any Note,
(iii) any Person to which such holder offers to sell such Note or
any part thereof,
(iv) any Person, other than a Competitor, to which such holder sells
or offers to sell a participation in all or any part of such Note,
(v) any federal or state regulatory authority having jurisdiction
over such holder,
(vi) the National Association of Insurance Commissioners or any
similar organization, or
(vii) any other Person to which such delivery or disclosure may be
necessary or appropriate
(a) in compliance with any law, rule, regulation or order
applicable to such holder,
(b) in response to any subpoena or other legal process,
U.S. AGGREGATES, INC. 55 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
(c) in connection with any litigation to which such holder is
a party, or
(d) in order to protect such holder's investment in such Note.
14K. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to the Purchaser or to the Required Holder(s), the
determination of such satisfaction shall be made by the Purchaser or the
Required Holder(s), as the case may be, in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making such determination.
14L. 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.
14M. Jurisdiction; Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS AND
INSTRUMENTS CONTEMPLATED HEREBY AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT. NONE OF THE PARTIES HERETO SHALL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT OR
ANY OF THE NOTES AND EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO ANY SUCH JURY TRIAL AND ANY RIGHT
EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO
VENUE TO THE EXTENT ANY SUCH PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
PARAGRAPH 14M.
14N. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
14O. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
14P. Counterparts. 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.
[Remainder of page intentionally blank. Next page is signature page.]
U.S. AGGREGATES, INC. 56 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterparts of this letter and return the same to
the Company, whereupon this letter shall become a binding agreement between you
and the Company.
Very truly yours,
U.S. AGGREGATES, INC.
By /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP
U.S. AGGREGATES, INC. AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
ANNEX 1
PURCHASER SCHEDULE
--------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
--------------------------------------------------------------------------------
Registered Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
--------------------------------------------------------------------------------
Note Registration Number; R-1; $30,000,000
Principal Amount (1996 Note)
Note Registration Number; S-1; $15,000,000
Principal Amount (1998 Note)
--------------------------------------------------------------------------------
Warrant Certificate WR-1; 6,327 Warrants
Registration Number; Number
of Warrants (1996 Warrant
Certificate)
Warrant Certificate WS-1; 3,208 Warrants
Registration Number;
Number of Warrants (1998
Warrant Certificate)
--------------------------------------------------------------------------------
Method of Payment Federal Funds Wire Transfer
--------------------------------------------------------------------------------
Account Information Bank of New York
New York, New York
ABA No.: 000-000-000
Prudential Managed Account No. 000-0000-000
--------------------------------------------------------------------------------
Accompanying Information for U.S. AGGREGATES, INC.
Note Payments (1996 10.34% Senior Subordinated Notes due November
Transaction) 22, 2006
Invoice Number: 5535
PPN: 90345@ AA 1
Accompanying Information for U.S. AGGREGATES, INC.
Note Payments (1998 10.09% Senior Subordinated Notes due November
Transaction) 22, 2008
Invoice Number: 6039
PPN: 90345@ AB 9
Due Date and Application (as among
principal, premium and interest) of the
payment being made:
--------------------------------------------------------------------------------
Address/Fax # for Payment The Prudential Insurance Company of America
Notices c/o Investment Operations Group (Privates)
Three Gateway Center, 12th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
Recipient of telephonic prepayment notices:
Manager, Investment Structure and Pricing
Tel: (000) 000-0000
Fax: (000) 000-0000
--------------------------------------------------------------------------------
Address/Fax # for Other The Prudential Insurance Company of America
Notices c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Managing Director
Tel: (000) 000-0000
Fax: (000) 000-0000
--------------------------------------------------------------------------------
U.S. AGGREGATES, INC. Annex 1-1 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
--------------------------------------------------------------------------------
Purchaser Name THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
--------------------------------------------------------------------------------
Other Instructions (if any) None
--------------------------------------------------------------------------------
Instructions re: Delivery Law Department of Purchaser
of Note and Warrant
Certificate
--------------------------------------------------------------------------------
Tax Identification Number 00-0000000
--------------------------------------------------------------------------------
U.S. AGGREGATES, INC. Annex 1-2 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
ANNEX 2
PAYMENT INSTRUCTIONS AT CLOSING
In accordance with paragraph 4(i) of the Agreement, the Company authorizes
and directs you to make payment for the 1998 Notes and 1998 Warrants being
purchased by you by payment by federal funds wire transfer in immediately
available funds of the purchase price thereof to:
Bank of America Illinois
ABA #:000000000
Account #78-19625
Account Name: U.S. Aggregates, Inc.
U.S. AGGREGATES, INC. Annex 2-1 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
ANNEX 3
INFORMATION AS TO COMPANY
Part 10A: Organization
[To Be Provided by the Company].
Part 10B: Financial Statements
[To Be Provided by the Company].
Part 10C: Actions Pending
[To Be Provided by the Company].
Part 10D: Outstanding Debt
[To Be Provided by the Company].
Part 10H: Limitations on Debt
[To Be Provided by the Company].
Part 10O(i): Capitalization
[To Be Provided by the Company].
Part 10O(ii): Reservation of Common Stock
[To Be Provided by the Company].
Part 10O(iii): Stockholders Agreements, etc.
[To Be Provided by the Company].
Part 13A: Investments
[To Be Provided by the Company].
U.S. AGGREGATES, INC. Annex 3-1 AMENDED AND RESTATED NOTE AND
WARRANT PURCHASE AGREEMENT
