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EXHIBIT 10.21
AMENDMENT NUMBER FIVE TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NUMBER FIVE TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of December 18, 1998, is entered into among
SOUTHDOWN, INC., a Louisiana corporation ("Borrower"), the banks and financial
institutions parties hereto that are signatories to the Credit Agreement (as
defined below) (collectively, the "Banks", and individually, a "Bank"), and
XXXXX FARGO BANK, N.A., a national Banking association, as Agent for the Banks
hereunder ("Agent").
WHEREAS, Borrower, the Banks, and Agent heretofore have
entered into that certain Third Amended and Restated Credit Agreement, dated as
of November 3, 1995, as amended by (a) that certain Letter Agreement, dated as
of February 29, 1996, (b) that certain Amendment Number Two to Third Amended and
Restated Credit Agreement, dated as of September 30, 1996, (c) that certain
Amendment Number Three to Third Amended and Restated Credit Agreement, dated as
of August 6, 1997, and (c) that certain Amendment Number Four to Third Amended
and Restated Credit Agreement dated as of May 14, 1998 (as amended, the "Credit
Agreement");
WHEREAS, Borrower has requested, among other things, that the
Credit Agreement be amended to (a) permit the transfer of certain assets from
Borrower to certain existing and newly created wholly-owned Subsidiaries of
Borrower, (b) permit the transfer of certain other assets as herein provided,
and (c) make other amendments to the terms and conditions of the Credit
Agreement as set forth herein; and
WHEREAS, subject to the terms and conditions contained herein,
the Banks are willing to so amend such provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions, and provisions hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions for this Fifth Amendment. Any and all
initially capitalized terms used herein shall have the meanings ascribed thereto
in the Credit Agreement, as amended hereby, unless specifically defined herein.
For purposes of this Fifth Amendment only, the following initially capitalized
terms shall have the following meanings:
"Agent" has the meaning set forth in the introduction to this
Fifth Amendment.
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"Bank" and "Banks" have the respective meanings set forth in
the introduction to this Fifth Amendment.
"Borrower" has the meaning set forth in the introduction to
this Fifth Amendment.
"Credit Agreement" has the meaning set forth in the
introduction to this Fifth Amendment.
ARTICLE 2
AMENDMENTS TO THE CREDIT AGREEMENT
2.1 Section 1.1 of the Credit Agreement hereby is amended by
adding the following defined terms in alphabetical order:
"Contributed California Assets" means all or a material
portion of Borrower's California assets (including the
Victorville Plant, the concrete and aggregate businesses of
the Borrower located in California and a terminal located in
Phoenix, Arizona) and the SDW Finance Subordinated Note.
"Fifth Amendment" means Amendment Number Five to Third Amended
and Restated Credit Agreement, dated as of December 18, 1998,
among Borrower, the Banks party thereto, and Agent.
"Fifth Amendment Closing Date" means the date on which the
conditions precedent set forth in Article 3 of the Fifth
Amendment shall have been satisfied.
"Medusa Entities" means Medusa and certain of its
Subsidiaries.
"Permitted Transactions" means (a) Borrower's contribution or
other transfer of Contributed California Assets to the SDW
California Subsidiaries, (b) any contribution or other
transfer by SDW Finance of Contributed California Assets to
other SDW California Subsidiaries, (c) the contribution or
other transfer of various intangible property to SDW Finance,
and (d) the merger of the Medusa Entities with and into
Borrower and any merger of the Medusa Entities with any other
of the Medusa Entities prior to the merger of the Medusa
Entities with and into Borrower.
"SDW Aggregates" means Southdown California Aggregates, Inc.,
a Delaware corporation.
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"SDW California Subsidiaries" means SDW Aggregates, SDW
Cement, SDW Concrete, and SDW Finance.
"SDW Cement" means Southdown California Cement LLC, a Delaware
limited liability company.
"SDW Concrete" means City Concrete Products, Inc., a
California corporation.
"SDW Finance" means Southdown Finance, Inc., a Delaware
corporation.
"SDW Finance Subordinated Debt" means the Debt of Borrower to
SDW Finance evidenced by the SDW Finance Subordinated Note.
"SDW Finance Subordinated Note" means a Promissory Note to be
issued by Borrower in the initial principal amount of
$700,000,000 in favor of SDW Finance.
2.2 The definition of "Cement Plant" set forth in Section 1.1
of the Credit Agreement hereby is amended in its entirety to read as follows:
"Cement Plants" means and refers to the Brooksville Plant, the
Fairborn Plant, the Knoxville Plant, the Xxxxx Plant, and the
Odessa Plant.
2.3 The definition of "Loan Documents" set forth in Section
1.1 of the Credit Agreement hereby is amended in its entirety to read as
follows:
"Loan Documents" shall mean the Agent's Fee Letter, and all
written documents, agreements, or instruments, other than this
Agreement and the Notes, that have been or are entered into
(with the exception of those documents the definition of which
were deleted pursuant to Section 3.1.1 of the Fourth
Amendment) by Borrower, Agent, or Banks, as the case may be,
in connection with the transactions contemplated by this
Agreement.
2.4 The definition of "Person" set forth in Section 1.1 of the
Credit Agreement hereby is amended in its entirety to read as follows:
"Person" means and refers to natural persons, corporations,
limited partnerships, limited liability partnerships, general
partnerships, joint stock companies, limited liability
companies, joint ventures, associations, companies, trusts,
banks, trust companies, land trusts, vehicle trusts, business
trusts, or other organizations, irrespective of whether they
are legal entities, and governments and agencies and political
subdivisions thereof.
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2.5 Section 4.2(c) the Credit Agreement is hereby amended in
its entirety to read as follows:
(c) NO CONFLICT - BORROWER. The execution, delivery, and
performance by Borrower of this Agreement, the Loan Documents
to which it is a party, and the Notes do not and will not: (a)
violate any provision of federal, state or local law or
regulation (including Regulations T, U, and X of the Federal
Reserve Board) applicable to Borrower, the articles of
incorporation or bylaws (or other charter documents) of
Borrower, or any order, judgment, or decree of any court or
other agency of government binding on Borrower; (b) conflict
with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual
Obligation or material lease of Borrower; (c) result in or
require the creation or imposition of any Lien of any nature
whatsoever upon any Assets of Borrower, other than Permitted
Liens; or (d) require any approval of stockholders or any
approval or consent of any Person under any Contractual
Obligation of Borrower.
2.6 Section 4.5 of the Credit Agreement is hereby amended in
its entirety to read as follows:
4.5 TITLE TO PROPERTY; LIENS; PROPERTIES. Except as disclosed
in Borrower's Annual Report on Form 10-K for its fiscal year
ended December 31, 1997, or on its Form 10-Q for its fiscal
quarter ended March 31, 1998, and except for the Permitted
Liens, all of the Assets of Borrower and each of its
Subsidiaries are free of all Liens of any nature whatsoever.
Borrower, Mojave, and, after the effectiveness of the
Permitted Transactions, each of the SDW California
Subsidiaries (other than SDW Aggregates and SDW Concrete),
taken as a whole, have good and indefeasible title to each and
all of the material Assets reflected in Borrower's, Mojave's,
and each of the SDW California Subsidiaries' (other than those
of SDW Aggregates and SDW Concrete) books and records as being
owned by them. Borrower, Mojave, and, after the effectiveness
of the Permitted Transactions, each of the SDW California
Subsidiaries (other than SDW Aggregates and SDW Concrete),
taken as a whole, have taken all action necessary to maintain
such good and indefeasible title with respect to such Assets.
2.7 Section 4.10 of the Credit Agreement is hereby amended in
its entirety to read as follows:
4.10 SECURITIES ACTIVITIES. Borrower and its Subsidiaries are
not engaged principally, or as one of their principal
activities, in the business of extending, or arranging for the
extension of, credit, for the purpose of "purchasing" or
"carrying" any margin stock (within the meaning of Regulations
T, U, or X of the Federal Reserve Board) as now or from time
to time in effect. No part of
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any Borrowing will be used by Borrower to purchase or carry
any such margin stock, or to extend credit to others for the
purpose of purchasing or carrying any such margin stock in
violation of Regulations T, U, or X of the Federal Reserve
Board.
2.8 Section 5.3 of the Credit Agreement is hereby amended in
its entirety to read as follows:
5.3 CORPORATE EXISTENCE, ETC. Except as permitted under
Section 6.7 of this Agreement, Borrower shall, and shall cause
Mojave and, after the effectiveness of the Permitted
Transactions, each of the SDW California Subsidiaries (other
than SDW Aggregates and SDW Concrete), to, at all times,
preserve and keep in full force and effect its and their
corporate existence and any rights and franchises material to
Borrower's businesses.
2.9 Section 5 of the Credit Agreement is hereby amended to
insert immediately after Section 5.15 of the following new Section 5.16:
5.16 MEDUSA MERGER. Prior to or substantially concurrent with
the consummation of the other Permitted Transactions, Borrower
will cause the merger of the Medusa Entities with and into
Borrower.
2.10 Section 6.1(k) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(k) Debt (including Acquired Indebtedness) not otherwise
permitted under this Section 6.1 in an aggregate amount
outstanding at any time less than or equal to One Hundred
Seventy-Five Million Dollars ($175,000,000);
2.11 Section 6.1(m) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(m) [Intentionally omitted]; and
2.12 Section 6.3(n) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(n) any Investments of Medusa or its Subsidiaries as of the
effective date of the Merger and the Permitted Transactions.
2.13 The initial paragraph of Section 6.7 of the Credit
Agreement is hereby amended by deleting the words "or Medusa after the
effectiveness of the Merger" immediately after the word "Mojave" in the second
line thereof, and inserting the words "or, after the effectiveness of the
Permitted Transactions, any of the SDW California Subsidiaries (other than SDW
Aggregates and SDW Concrete)" in replacement thereof.
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2.14 Section 6.7(e) of the Credit Agreement is hereby amended
by deleting the word "and" at the end thereof.
2.15 The period at the end of Section 6.7(f) of the Credit
Agreement is hereby replaced with "; and", and the following new Section 6.7(g)
is inserted in its entirety immediately thereafter:
(g) so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing and so long as no Event
of Default or Unmatured Event of Default would result
therefrom, (i) Borrower and its Subsidiaries may enter into
the Permitted Transactions and (ii) any of the SDW California
Subsidiaries may be merged or consolidated with or into
Borrower or any of its Subsidiaries so long as Borrower or any
such Subsidiary is the surviving entity of such merger or
consolidation.
2.16 Section 6.9 (a) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(a) [Intentionally omitted.]
2.17 Section 6.9 (b) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(b)(i) The interest of Borrower in the capital stock of Mojave
or, after giving effect to the Permitted Transactions, the SDW
California Subsidiaries (other than SDW Aggregates and SDW
Concrete), and (ii) the interest of Borrower in and to the
Cement Plants and the interest of Borrower in KCC;
2.18 Pursuant to Section 2.18 of the Fourth Amendment, former
subparagraph (iii) of Section 6.9 of the Credit Agreement (prior to such Fourth
Amendment) was mistakenly relettered as "(d)", and such "(d") is hereby changed
to "(iii)." Furthermore, (1) the word "and" at the end of such subparagraph
(iii) is hereby deleted, (2) the period at the end of subparagraph (iv) of such
Section 6.9 is hereby replaced with "; and", and (3) the following new clause
(v) is added to such Section 6.9 immediately after such subparagraph (iv):
(v) so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing and so long as no Event
of Default or Unmatured Event of Default would result
therefrom, the consummation of the Permitted Transactions.
2.19 The Credit Agreement is hereby amended to add,
immediately following Section 6.21 thereof, a new Section 6.22 reading as
follows:
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6.22 SDW FINANCE SUBORDINATED DEBT. Unless approved in writing
by the Majority Banks, Borrower shall not, and shall not cause
or permit any of its Subsidiaries to:
(a) pay, prepay, set aside funds for the payment or
prepayment of or redeem, repurchase or otherwise retire for
value the principal of any SDW Finance Subordinated Debt ("SDW
Restricted Transactions"), except that Borrower and its
Subsidiaries may effect SDW Restricted Transactions if the
aggregate amount paid to SDW Finance in connection with such
SDW Restricted Transactions does not exceed the amount of all
cash dividends received by Borrower from SDW Finance prior to
such SDW Restricted Transactions; or
(b) pay any amount with respect to any SDW Finance
Subordinated Debt in violation of the terms of the
subordination provisions thereof; or
(c) permit the transfer or other disposition of the
SDW Finance Subordinated Note by the holder thereof other than
to the Borrower or any of its other Subsidiaries.
2.20 The fourth paragraph of Section 8.1 of the Credit
Agreement is hereby amended to delete the words "Mojave and Medusa" in the sixth
line thereof, and to insert the words "and Mojave" in replacement thereof
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Conditions Precedent to the Effectiveness of this Fifth
Amendment. The effectiveness of the provisions of this Fifth Amendment is
subject to the fulfillment, to the satisfaction of Agent, of each of the
following conditions:
3.1.1 the Agent shall have received a certificate
from a Secretary or Assistant Secretary of Borrower attesting to the resolutions
of Borrower's board of directors or an authorized committee authorizing the
execution and delivery of this Fifth Amendment;
3.1.2 the Agent shall have received counterparts of
signature pages of this Fifth Amendment duly executed and delivered by Borrower
and Banks constituting Majority Banks; and
3.1.3 the Agent shall have received a certificate
from a Responsible Officer certifying that:
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(a) the representations and warranties of
Borrower contained in the Credit Agreement and the Loan
Documents, to the extent that it is a party thereto, are true
and correct in all material respects at and as of the date of
the effectiveness of this Fifth Amendment, as though made on
and as of such date (except to the extent that such
representations and warranties expressly relate solely to an
earlier date);
(b) neither an Event of Default nor an
Unmatured Event of Default has occurred and is continuing on
the date of the effectiveness of this Fifth Amendment;
(c) on the date of the effectiveness of this
Fifth Amendment, no Material Adverse Change has occurred, as a
result of one or more acts or occurrences; and
(d) the Credit Agreement and each of the
Loan Documents to which Borrower is a party are in full force
and effect.
3.1.4 the Agent, on behalf of the Banks, shall have
received a payment of a $5,000 fee payable with respect to each of the Banks
executing this Fifth Amendment on or before December 18, 1998, together with
payment of any other fees due and owing by Borrower.
ARTICLE 4
MISCELLANEOUS
4.1 Execution in Counterparts. This Fifth Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original. All of such counterparts shall constitute
but one and the same instrument. Delivery of an executed counterpart of the
signature pages of this Fifth Amendment by telecopier shall be equally effective
as delivery of a manually executed counterpart. Any party delivering an executed
counterpart of the signature pages of this Fifth Amendment by telecopier
thereafter also shall deliver promptly a manually executed counterpart, but the
failure to deliver such manually executed counterpart shall not affect the
validity, enforceability, or binding effect of this Fifth Amendment.
4.2 No Other Amendment. Except as expressly amended hereby,
the Credit Agreement shall remain unchanged and in full force and effect. To the
extent any terms or provisions of this Fifth Amendment conflict with those of
the Credit Agreement, the terms and provisions of this Fifth Amendment shall
control. This Fifth Amendment shall be deemed a part of and hereby is
incorporated in the Credit Agreement.
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4.3 Governing Law. This Fifth Amendment shall be governed by,
and construed and enforced in accordance with, the laws of the State of
California.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be executed and delivered as of the date first set forth above.
SOUTHDOWN, INC.,
a Louisiana corporation
By
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Title:
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XXXXX FARGO BANK, N.A.,
a national Banking association, in its
individual capacity and as Agent
By
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Title:
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SOCIETE GENERALE, SOUTHWEST AGENCY
By
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Title:
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CREDIT SUISSE FIRST BOSTON
(formerly known as Credit Suisse)
By
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Title:
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CREDIT AGRICOLE INDOSUEZ
(formerly known as Caisse Nationale De
Credit Agricole)
By
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Title:
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By
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Title:
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PARIBAS
(formerly known as Banque Paribas)
By
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Title:
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PNC BANK, NATIONAL ASSOCIATION
By
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Title:
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THE BANK OF NOVA SCOTIA
By
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Title:
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BANKBOSTON, N.A.
By
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Title:
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