SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of August 12, 1999 (this "Amendment") is to
the Third Amended and Restated Credit Agreement (as heretofore amended, the
"Credit Agreement") dated as of June 5, 1998 among U.S. AGGREGATES, INC., a
"Lenders") and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent
for the Lenders (the "Agent"). Unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as defined in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence
of) the Amendment Effective Date (as defined below):
1.1 (a) The following definition shall be added to Section 1.1
of the Credit Agreement in its appropriate alphabetical position:
Change of Control means (i)(A) any Person or group of related persons for
purposes of Section 13(d) of the Securities Exchange Act of 1934 (a "Group")
(other than GTCR) shall become the owner, directly or indirectly, beneficially
or of record, of shares representing 30% or more of the aggregate ordinary
voting power represented by the issued and outstanding capital stock (the
indirectly, in the aggregate a lesser percentage of the Voting Stock of the
Company than such Person or Group, (ii) the replacement of a majority of the
Board of Directors of the Company over a two-year period from the directors who
constituted the Board of Directors of the Company at the beginning of such
period, and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company then still in office who
either were members of such Board of Directors at the beginning of such period
or whose election as a member of such Board of Directors was previously so
approved or (iii) any event or condition relating to a change of control of the
Company shall occur which requires, or permits the holder or holders (or any
agent or trustee therefor) of any Debt of the Company or any Subsidiary to
require, the purchase or repurchase prior to its expressed maturity of any Debt
of the Company or any Subsidiary in an aggregate principal amount (for all such
Debt) of $1,000,000 or more.
(b) The definition of "Fixed Charge Coverage Ratio" in Section 1.1 of
the Credit Agreement shall be amended and restated in its entirety to read as
follows:
Fixed Charge Coverage Ratio means, for any Computation Period, the ratio of
(a) EBITDA for such Computation Period to (b) the sum for such Computation
Period of (i) Interest Expense (other than, so long as the Xxxxxx Note Documents
are in effect, with respect to the Xxxxxx Note), (ii) Capital Expenditures,
(iii) cash taxes paid by the Company and its Subsidiaries, (iv) all scheduled
principal payments due on any Total Debt, other than principal payments made as
a result of any mandatory reduction of the Revolving Commitments and (v) the
amount of all cash dividends declared or paid by the Company.
1.2 Section 6.2.1(a)(iv) of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
(iv) Concurrently with the receipt of any Net Cash Proceeds from any
issuance of equity securities of the Company or any Subsidiary (including a
Public Offering, but excluding (x) any issuance of shares of capital stock
pursuant to any employee or director stock option program, benefit plan or
compensation program, (y) equity contributions from GTCR or its Affiliates to
fund Permitted Acquisitions or to fund payments required by the Xxxxxx Note
Documents and (z) any issuance of capital stock by a Subsidiary to the Company
or another Subsidiary), in an amount equal to (x) (i) such Net Cash Proceeds
minus (ii) if and to the extent that the Company funds such payment with the
proceeds of its initial Public Offering of common stock, the amount (not to
exceed $16,400,000) paid by the Company to pay in full and retire the Xxxxxx
Note times (y) 0.50.
1.3 Section 10.1 of the Credit Agreement shall be amended (a) by
deleting the number "30" where it appears in clause (ii) of Section 10.1.2 and
inserting in lieu thereof the number "45" and (b) adding the following as
Section 10.1.12:
10.1.12 Forms 10K and 10Q. For so long as the Company is a "registrant"
within the meaning of Rule 1-01 of Regulation S-X of the SEC and is obligated to
file annual and quarterly reports with the SEC on Forms 10K and 10Q (or any
successor forms) then, notwithstanding the foregoing, it is understood and
agreed that the Company may satisfy its obligations under Sections 10.1.1 and
10.1.2 by delivering copies of such forms to each Lender within the time periods
specified in such Sections in lieu of the deliveries specified in such Sections.
1.4 Section 10.11 of the Credit Agreement shall be amended by deleting
the word "and" immediately prior to clause (viii) of the proviso thereof and
inserting the following at the end of such proviso "; (ix) the Company may
convert 300,842.2 shares of its Preferred Stock into common stock at a
conversion price equal to the offering price per share of common stock in its
initial Public Offering of such common stock; and (x) if no Event of Default or
Unmatured Event of Default exists or would result therefrom, the Company may
declare and pay dividends on its common stock (A) in the third and fourth Fiscal
Quarters of 1999 in an amount not to exceed $600,000 in any such fiscal quarter
and (B) in any Fiscal Year (commencing with the Fiscal Year beginning January 1,
2000) in an amount not to exceed 15% of Consolidated Net Income for the
immediately preceding Fiscal Year (provided, that the Company may only pay any
dividend pursuant to this clause (x) if, after giving effect thereto, the
Company shall be in compliance with all financial covenants in Section 10.6 on a
pro forma basis for the twelve consecutive month period ending on the date of
the Lenders on or prior to the date of declaration of such dividend), it being
understood that, unless an Event of Default under Section 12.1.1 exists,
dividends may be paid within 60 days after the date of declaration thereof if at
such date of declaration such dividend complied with this clause (x) even if at
the time of payment thereof the Company is not in compliance with this clause
(x)."
1.5 Section 10.12 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
10.12 Capital Expenditure, etc. Not, and not permit any Subsidiary to,
make or commit to make any Capital Expenditure in any Fiscal Year, except
Capital Expenditures which do not in the aggregate exceed (i) $19,000,000 in the
1999 Fiscal Year and (ii) $35,000,000 in any Fiscal Year thereafter; provided
that any unused amount in any Fiscal Year, up to a maximum of $2,000,000, may be
carried over and used in the following Fiscal Year.
1.6 Section 12.1.11(a) of the Credit Agreement shall be amended and
restated to read in its entirety as follows "(a) a Change of Control shall
occur."
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Lenders that (a) the representations and
warranties made in Section 9 (excluding Sections 9.6 and 9.8) of the Credit
Agreement are true and correct on and as of the Amendment Effective Date with
the same effect as if made on and as of the Amendment Effective Date (except to
the extent relating solely to an earlier date, in which case they were true and
correct as of such earlier date); (b) no Event of Default or Unmatured Event of
Default exists or will result from the execution of this Amendment; (c) no event
or circumstance has occurred since the Effective Date that has resulted, or
would reasonably be expected to result, in a Material Adverse Effect; (d) the
execution and delivery by the Company of this Amendment and the performance by
the Company of its obligations under the Credit Agreement as amended hereby (as
so amended, the "Amended Credit Agreement") (i) are within the corporate powers
of the Company, (ii) have been duly authorized by all necessary corporate
action, (iii) have received all necessary approval from any Governmental
Authority and (iv) do not and will not contravene or conflict with any provision
of any law, rule or regulation or any order, decree, judgment or award which is
binding on the Company or any Guarantor or any of their respective Subsidiaries
or of any provision of the certificate of incorporation or bylaws or other
organizational documents of the Company or of any agreement, indenture,
instrument or other document which is binding on the Company or any Guarantor or
any of their respective Subsidiaries; and (e) the Amended Credit Agreement is
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above
Agent shall have received (a) evidence that the Company has consummated the
initial public offering of its equity securities (the "IPO") and received gross
cash proceeds therefrom in an amount not less than $65,000,000, which evidence
must be received on or prior to October 31, 1999, (b) a counterpart of this
Amendment executed by the Company and the Required Lenders, the Required
Revolving Lenders, the Required Term A Lenders and the Required Term B Lenders
(or, in the case of any party other than the Company from which the Agent has
not received a counterpart hereof, facsimile confirmation of the execution of a
counterpart hereof by such party), (c) for each of the Lenders, an amendment fee
in an amount equal to 0.125% of the sum of such Lender's Revolving Commitment
plus the outstanding Term Loans of such Lender and (d) each of the following
documents, each in form and substance satisfactory to the Agent:
3.1 Reaffirmation. Counterparts of the Reaffirmation of Loan
Documents, substantially in the forms of Exhibit A executed by the Company and
each Guarantor.
3.2 Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying the execution, delivery and
performance by the Company of this Amendment, the Amended Credit Agreement and
each other Loan Document contemplated by this Amendment to which the Company is
a party.
3.3 Incumbency and Signature Certificates. A certificate of the
Secretary or an Assistant Secretary of the Company, certifying the names of the
officer or officers of the Company authorized to sign this Amendment and the
other Loan Documents contemplated hereby to which the Company is a party,
together with a sample of the true signature of each such officer.
3.4 Subordinated Debt. Evidence satisfactory to the Agent that the
Note and Warrant Purchase Agreement shall have been amended to permit the
payment of the Xxxxxx Note from the proceeds of the IPO in the manner
contemplated hereby.
3.5 Other Documents. Such other documents as the Agent or any Lender
may reasonably request.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all references
in the Credit Agreement, the Notes, each other Loan Document and any similar
document to the "Credit Agreement" or similar terms shall refer to the Amended
Credit Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Expenses. The Company agrees to pay the reasonable costs and
expenses of the Agent (including reasonable fees and disbursements of counsel,
including, without duplication, the allocable costs of internal legal services
and all disbursements of internal legal counsel) in connection with the
preparation, execution and delivery of this Amendment.
4.4 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be wholly performed within the State of Illinois.
4.5 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders and the Agent and the
successors and assigns of the Lenders and the Agent.
Delivered as of the day and year first above written.
U.S. AGGREGATES, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Chief Financial Officer
---------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
/s/ Xxx Xxxxxx
By: Xxx Xxxxxx
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Title: Principal
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Lender and as
Issuing Lender
/s/ Xxx Xxxxxx
By: Xxx Xxxxxx
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Title: Principal
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BANKBOSTON, N.A., as a Lender
/s/ Xxxxx X. Xxxxxx
By: Xxxxx X. Xxxxxx
-----------------
Title: Vice President
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NATIONAL CITY BANK, as a Lender
/s/ Xxxxx Xxxxxxx
By: Xxxxx Xxxxxxx
--------------
Title: Senior Vice President
-----------------------
BANK OF SCOTLAND, as a Lender
/s/ Xxxxx Xxxxx
By: Xxxxx Xxxxx
------------
Title: Senior Vice President
-----------------------
IBJ WHITEHALL BANK AND TRUST COMPANY (formerly IBJ Xxxxxxxx Bank & Trust
Company), as a Lender
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx
----------------
Title: Managing Director
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COMERICA BANK - CALIFORNIA, as a Lender
/s/ Xxxxx X. Xxxxx
By: Xxxxx X. Xxxxx
----------------
Title: Vice President
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ZIONS FIRST NATIONAL BANK, as a Lender
/s/ Xxxxx Xxxxxxxxx
By: Xxxxx Xxxxxxxxx
----------------
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A., as a Lender
/s/ Xxxxx X. Xxxxxxx
By: Xxxxx X. Xxxxxxx
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Title: Vice President
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CYPRESSTREE INVESTMENT MANAGEMENT COMPANY, INC.
as Attorney-in-Fact and on behalf of First Allmerica Financial Life Insurance
Company as Portfolio Manager, as a Lender
Illegible
By:
Title: Principal
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CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By: CypressTree Investment Management Company, Inc., as Portfolio Manager
Illegible
By:
Title: Principal
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ING HIGH INCOME PRINCIPAL PRESERVATION FUND HOLDINGS, LDC, as a Lender
By: ING Capital Advisors, Inc., as Investment Advisor
/s/ Xxxxx X. Xxxx
By: Xxxxx X. Xxxx
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Title: Vice President & Portfolio Manager
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PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments, Inc., as its Investment Manager
/s/ Xxxxxx X. Xxxxxx
By: Xxxxxx X. Xxxxxx
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Title: Vice President
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment Advisor
/s/ Xxxxx X. Page
By: Xxxxx X. Page
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Title: Vice President
---------------
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as Investment Advisor
/s/ Xxxxx X. Page
By: Xxxxx X. Page
---------------
Title: Vice President
---------------
KZH-CYPRESSTREE - 1 LLC
/s/ Xxxxx Xxxx
By: Xxxxx Xxxx
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Title: Authorized Agent
-----------------
KZH-HIGHLAND - 2 LLC
/s/ Xxxxx Xxxx
By: Xxxxx Xxxx
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Title: Authorized Agent
-----------------
ARCHIMEDES FUNDING II, LLC
By: ING Capital Advisors, LLC, as Collateral Manager
/s/ Xxxxx X. Xxxx
By: Xxxxx X. Xxxx
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Title: Vice President & Portfolio Manager
--------------------------------------
EXHIBIT A
FORM OF REAFFIRMATION OF
LOAN DOCUMENTS
July 8, 0000
Xxxx xx Xxxxxxx National Trust
and Savings Association, as Agent
and the other parties
to the Third Amended and
Restated Credit Agreement
referred to below
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Agency Management Services #5596
RE: REAFFIRMATION OF LOAN DOCUMENTS --
COMPANY AND SUBSIDIARIES
Ladies and Gentlemen:
Please refer to:
1. The Amended and Restated Security Agreement dated as of June 5, 1998
(the "Security Agreement") among U.S. Aggregates, Inc. (the "Company"), Western
Aggregates Holding Corporation, a Delaware corporation, Xxxxxx Construction and
Development, INC., a Nevada corporation, Sandia Construction, Inc., a Nevada
corporation, Xxx Rock Products Inc., a Utah corporation, Cox Transport
Corporation, a Utah corporation, SRM Holdings Corp., a Delaware corporation,
Southern Ready Mix, Inc., an Alabama corporation, A-Block Company, Inc., an
Arizona corporation, A-Block Company, Inc., a California corporation, Mohave
Concrete and Materials, Inc., an Arizona corporation, Mohave Concrete and
Materials, Inc., a Nevada corporation, Mulberry Rock Corporation, a Georgia
corporation, Valley Asphalt, Inc., a Utah Corporation, BHY Ready Mix, Inc., a
Tennessee corporation, Geodyne Transport, Inc., a Utah corporation, Western Rock
Products Corp., a Utah corporation, Tri-State Testing Laboratories, Inc., a Utah
Corporation, Dekalb Stone, Inc., a Georgia corporation, Xxxx Paving, Inc., a
Utah corporation, Xxxxxxx Xxxxx & Sand, Inc., a Tennessee corporation, Treasure
Valley Concrete, Inc., an Idaho corporation, Monroc, Inc., a Delaware
corporation, Western Aggregates, Inc., a Utah corporation, and Bank of America
National Trust and Savings Association in its capacity as Agent (in such
capacity, the "Agent");
2. The Amended and Restated Guaranty dated as of June 5, 1998 (the
"Guaranty") executed in favor of the Agent and various other parties by Western
Aggregates Holding Corporation, Xxxxxx Construction and Development, Inc.,
Sandia Construction, Inc., Xxx Rock Products Inc., Cox Transport Corporation,
SRM Holdings Corp., Southern Ready Mix, Inc., A-Block Company, Inc., A-Block
Company, Inc., Mohave Concrete and Materials, Inc., Mohave Concrete and
Materials, Inc., Mulberry Rock Corporation, Valley Asphalt, Inc., BHY Ready Mix,
Inc., Geodyne Transport, Inc., Western Rock Products Corp., Tri-State Testing
Laboratories, Inc., Dekalb Stone, Inc., Xxxx Paving, Inc., Xxxxxxx Xxxxx & Sand,
Inc., Treasure Valley Concrete, Inc., and Monroc, Inc.;
3. The following Pledge Agreements:
(a) the Amended and Restated Company Pledge Agreement dated as of
June 5, 1998 between the Company and the Agent, and
(b) the Amended and Restated Subsidiary Pledge Agreement dated as of
June 5, 1998 between Western Aggregates Holding Corp., Western Rock Products
Corp., SRM Holdings Corp., Southern Ready Mix, Inc., Monroc, Inc., and the
Agent,
(all of the foregoing Pledge Agreements, in each case as heretofore amended,
being collectively referred to herein as the "Pledge Agreements").
4. The Patent Security Agreement made as of March 30, 1995 by Xxx Rock
Products Inc. in favor of the Agent (the "Patent Security Agreement").
The Security Agreement, the Guaranty, the Pledge Agreements, the Aircraft
Security Agreement and the Patent Security Agreement, in each case as heretofore
amended, are collectively referred to herein as the "Loan Documents".
Capitalized terms not otherwise defined herein will have the meanings given in
the Credit Agreement referred to below.
Each of the undersigned acknowledges that the Company, the Banks and the
Agent have executed the Second Amendment (the "Amendment") to the Third Amended
and Restated Credit Agreement dated as of June 5, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement").
Each of the undersigned hereby confirms that each Loan Document to which
such undersigned is a party remains in full force and effect after giving effect
to the effectiveness of the Amendment and that, upon such effectiveness, all
references in such Loan Document to the "Credit Agreement" shall be references
to the Credit Agreement as amended by the Amendment.
The letter agreement may be signed in counterparts and by the various
parties as herein on separate counterparts. This letter agreement shall be
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such State.
U.S. AGGREGATES, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Chief Financial Officer
---------------------------
SRM HOLDINGS CORP.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
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WESTERN AGGREGATES HOLDING CORP.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Vice President
-----------------
WESTERN ROCK PRODUCTS CORP.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
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XXXXXX CONSTRUCTION & DEVELOPMENT, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
SANDIA CONSTRUCTION, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
TRI-STATE TESTING LABORATORIES, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
MOHAVE CONCRETE AND MATERIALS, INC.,
a Nevada corporation
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Vice President
-----------------
MOHAVE CONCRETE AND MATERIALS, INC.,
an Arizona corporation
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
A-BLOCK COMPANY, INC.,
an Arizona corporation
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
A-BLOCK COMPANY, INC.,
a California corporation
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
XXX ROCK PRODUCTS, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
COX TRANSPORT CORPORATION
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Vice President
-----------------
VALLEY ASPHALT, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
GEODYNE TRANSPORT, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Vice President
-----------------
XXXX PAVING, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
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Title: Vice President
-----------------
SOUTHERN READY MIX, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
DEKALB STONE, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
MULBERRY ROCK CORPORATION
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
BHY READY MIX, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
XXXXXXX XXXXX & SAND, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
TREASURE VALLEY CONCRETE, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
MONROC, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
WESTERN AGGREGATES, INC.
/s/ Xxxxxxx X. Xxxxx
By: Xxxxxxx X. Xxxxx
------------------
Title: Vice President
-----------------
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
/s/ Xxx Xxxxxx
By: Xxx Cockey_
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Title: Principal
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