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Exhibit 10.6.4
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment") is
made as of this 29th day of September, 1994 by and among GIANT CEMENT COMPANY,
a Delaware corporation ("Giant"), KEYSTONE CEMENT COMPANY, a Pennsylvania
corporation ("Keystone"; Keystone and Giant being herein collectively called
"Borrowers" and individually called "Borrower"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation ("Lender").
Statement of Facts
WHEREAS, Lender and Borrowers are parties to that certain Credit
Agreement, dated as of November 23, 1993 (the "Credit Agreement"), pursuant
to which Lender has committed to make certain Revolving Credit Loans and Letter
of Credit Obligations available to or at the request of Borrowers; and
WHEREAS, KCC Delaware Company ("KCC"), the owner of all of the
outstanding securities of Giant Cement Holding, Inc., a Delaware corporation
("Holding"), the direct parent company of the Borrowers, intends to sell all of
such outstanding securities of Holding in an initial public offering (the
"IPO") of Holding, and to contribute additional capital to Holding;
WHEREAS, Giant Group, Ltd. ("Group") is the parent company of KCC;
WHEREAS, the sale by KCC of the Holding securities in the IPO may be
deemed a change of control of Borrowers (the "Change of Control");
WHEREAS, Borrowers have requested that Lender consent to the Change
in Control, and Lender is willing to consent to such change in control in
accordance with the terms and conditions set forth below; and
WHEREAS, as a result of the Change in Control, Lender and Borrowers
desire to modify the Credit Agreement in certain respects in accordance with
the terms and conditions set forth herein.
NOW, THEREFORE, in consideratioan of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Borrowers and Lender do
hereby agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement (except as otherwise expressly defined
or limited herein) and do hereby further agree as follows:
Statement of Terms
1. Amendments to Credit Agreement. Subject to the fulfillment of
the conditions precedent to the effectiveness of this First Amendment which
are set forth below, the Credit Agreement shall be amended as follows:
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(a) The Credit Agreement shall be amended by deleting
Section 6.17 thereof in its entirety.
(b) The Credit Agreement shall be amended by deleting
Section 6.18 thereof in its entirety and by substituting in lieu
thereof the following new Section 6.18:
"6.18 Change in Control. Borrowers shall not permit
any Borrower to cease for any reason to be a wholly-
owned subsidiary of Holding, not shall Borrowers permit
the acquisition after September 29, 1994 by any Person,
or by any two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission) of forty
percent (40%) or more of the outstanding Voting Stock
Holding."
(c) The Credit Agreement shall be further amended by
deleting all references in Schedule 4.1 thereof to the term "Group"
and by substituting in lieu thereof the term "Holding", such that all
financial statements, proxy statements, notices and other reports of
Holding (rather than Group and KCC) shall be delivered to Lender as
provided in Schedule 4.1.
(d) The Credit Agreement Agreement shall be further amended
by adding the following definition to Annex A thereof:
"Holding" shall mean Giant Cement Holding, Inc., a
Delaware corporation, and its successors and permitted
assigns."
(e) The Credit Agreement shall be further amended by
deleting the definitions of "Guarantors" and "Tax Sharing Agreement"
in Annex A thereof and by subtituting in lieu thereof the following new
definitions of such terms:
"Guarantors" shall mean GRR, Holding, and each other
Person who may execute a guarantee or a support, put or
other similar agreement in favor of Lender in
connection with the transactions contemplated by the
Agreement."
"Tax Sharing Agreement" shall mean the tax sharing
agreement, entered or to be entered into among Holding
and all (or substantially all) of its subsidiaries
(including the Borrowers and GRR)."
(f) The Credit Agreement shall be further amended by
deleting Schedule 10.9 to the Credit Agreement and by replacing in lieu
thereof Schedule 10.9 attached hereto and incorporated herein and
therein by reference.
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2. Consent; Waiver of Default. Subject to the fulfillment of
the conditions precedent to the effectiveness of this First Amendment which are
set forth below, Lender hereby consents to the Change in Control and,
accordingly, waives any Default or Event of Default arising under Section 6.18
of the Credit Agreement as a result of the Change in Control. The foregoing
waiver applies only to the Change in Control as defined herein and shall not
constitute Lender's consent to or waiver of any other or future Defaults or
Events of Default under the Credit Agreement, as amended by this First
Amendment.
3. Substitution of Guarantors. Subject to the fulfillment of
the conditions precedent to the effectiveness of this First Amendment which are
set forth below, Lender hereby consents to the substitution of Holding for
Group and KCC as guarantors of the Obligations under or in connection with the
Credit Agreement. Upon the effectiveness of this First Amendment and without
any further action by Lender, each of Group and KCC shall be released from any
and all of their respective obligations to Lender under that certain Guaranty
Agreement (Giant Cement Company Obligations) dated as of November 23, 1993
executed by Group, KCC, Keystone and GRR in favor of Lender and that certain
Guaranty Agreement (Keystone Cement Company Obligations) dated as of
November 23, 1993 executed by Group, KCC, Giant and GRR (such guaranty
agreements are collectively referred to as the "Existing Guaranty Agreements").
Notwithstanding any of the foregoing, nothing contained herein shall release
any of Giant, Keystone or GRR from any of its obligations under the Existing
Guaranty Agreements to which it is a party.
4. No Other Amendments. Except for the amendments expressly
set forth and referred to in Section 1 above, the Credit Agreement shall remain
unchanged and in full force and effect. Nothing in this First Amendment is
intended, or shall be construed, to constitute a novation or an accord and
satisfaction of any of Borrowers' Obligations under or in connection with the
Credit Agreement or to modify, affect or impair the perfection or continuity of
Lender's security interests in, security titles to or other liens on any
Collaterl for the Obligations.
5. Representations and Warranties. To induce Lender to
enter into this First Amendment, each Borrower does hereby warrant, represent
and covenant to Lender that: (a) each representation or warranty of such
Borrower set forth in the Credit Agreement as amended by this First Amendment
is hereby restated and reaffirmed as true and correct in all material respects
on and as of the date hereof and after giving effect to the IPO and the Change
in Control (except to the extent that any such representation or warranty
expressly relates to a prior specific date or period), and no Default or Event
of Default has occurred and is continuing as of this date under the Credit
Agreement as amended by this First Amendment and after giving effect to
the IPO and the Change in Control; and (b) said Borrower has the power and is
duly authorized to enter into, deliver and perform this First Amendment and
this First Amendment is the legal, valid and binding obligation of said
Borrower enforceable against it in accordance with its terms.
6. Conditions Precedent to Effectiveness of this First
Amendment. The effectiveness of this First Amendment (including without
limitation the amendments provided in Section 1 above, the consents and waivers
set forth in Section 3 above, and the consent and releases set forth in Section
3 above) is subject to the truth and accuracy in all material respects of the
representations and warranties of Borrowers contained in Section 5 above and
to the fulfillment of the following additional conditions precedent by October
31, 1994:
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(a) Lender shall have received one or more counterparts of this
First Amendment duly executed and delivered by Borrowers;
(b) Each of Giant, Keystone and GRR (each in its capacity as a
Guarantor) shall have consented to the execution, delivery and
performance of this First Amendment and all of the transactions
contemplated hereby (including without limitation the release
contemplated by Section 3 above) by signing one or more counterparts
of this First Amendment in the appropriate space indicated below and
returning same to lender;
(c) Lender shall have received from Holding one or more
counterparts of duly completed Guaranty Agreements executed by
Holding with respect to each Borrower's Obligations to Lender, which
Guaranty Agreements shall be in form and substance satisfactory to
Lender;
(d) Lender shall have received from Holding one or more
counterparts of a duly executed and completed closing certificate in
form and substance satisfactory to Lender;
(e) Lender shall have received an opinion of the primary outside
counsel for the Borrowers, GRR and Holding with respect to the
authorization, execution, delivery and enforceability of the Loan
Documents described in clauses (a), (b) and (c) above and otherwise
in form and substance satisfactory to Lender;
(f) Lender shall have received a copy of the Certificate of
Incorporation of Holding (certified by the Secretary of State of the
state of its incorporation) together with current good standing
certificates for Holding issued by the Secretary of State of Holding's
jurisdiction of incorporation and the other jurisdictions where
Holding is qualified to do business a a foreign corporation;
(g) Lender shall have received a certified copy of any replacement
Tax Sharing Agreement to be entered into among Holding, the Borrowers
and GRR;
(h) Lender shall have received a newly completed and executed
letter from Holding to its independent accountants authorizing such
accountants to discuss Holding's and its Subsidiaries' financial
affairs with Lender, which letter shall be in substantially the form
of Exhibit I to the Credit Agreement (subject to such changes therein
as may be deemed necessary or appropriate by Lender);
(i) The truthfulneess, completeness and accuracy of all documents,
materials and other information submitted by or on behalf of the
Borrowers, Holding, KCC or Group to Lender in support to their
request for this First Amendment; the absence of any change in the
executive management of Holding and the Borrowers from that
previously disclosed to Lender; and the absence of any material change
in the Change in Control or the IPO from that previously disclosed to
Lender by the Borrowers;
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(j) The absence of any Default or Event of Default arising from the
Change in Control or the IPO (other than the violation of Section 6.18 of the
Credit Amendment);
(k) The consummation of the Change in Control and the IPO, each in
accordance with the terms set forth in the Preliminary Prospectus dated August
31, 1994 (the "PRELIMINARY PROSPECTUS,") relating to the issuance of 10,000,000
shares of common stock of Holding (but subject to such changes therein as are
acceptable to Lender).
7. EFFECTIVE DATE. If the aforesaid conditions precedent to the
effectiveness of this First Amendment are fulfilled to Lender's satisfaction by
the deadline stated in Section 6 above (subject to any waivers granted by
Lender in writing in its discretion), the First Amendment shall be deemed
effective from and after the date of this First Amendment first set forth
above.
8. COUNTERPARTS. This First Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
9. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE.
10. BINDING EFFECT. This First Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns. Each of Group and KCC is entitled to the benefit of
Section 3 of this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered as of the day and year specified at the
beginning hereof.
BORROWERS:
GIANT CEMENT COMPANY
By: /s/
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Title: Vice President
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(Signatures continued on next page)
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(Signatures continued from preceding page)
KEYSTONE CEMENT COMPANY
By: /s/
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Title: Vice President
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LENDER:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/
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Title: Vice President - Commercial Finance
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