EXHIBIT 10.1
AMENDMENT NO. 3
TO THE CREDIT AGREEMENT
Dated as of December 31, 2000
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT among BMAC Holdings, Inc., a
Delaware corporation (the "Parent Guarantor"), Better Minerals & Aggregates
Company, a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders"), and Banque Nationale de Paris
("BNP"), as the initial issuing bank (the "Initial Issuing Bank"), as the swing
line bank (the "Swing Line Bank"), and as agent (together with any successors
appointed pursuant to Article VII, the "Agent") for the Lender Parties.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have entered into a Credit
Agreement dated as of September 30, 1999 and amended as of December 31, 1999 and
March 15, 2000 (as the same may be further amended, supplemented or otherwise
modified through the date hereof, the "Credit Agreement"). Capitalized terms
not otherwise defined in this Amendment have the same meanings as specified in
the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. Subject to Section 2, the
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Credit Agreement is, as of the date hereof, hereby amended as follows:
(a) The definition of "Applicable Margin" is amended by (i) deleting
"Level I" from the table and by inserting the following in lieu thereof:
Level I(A)
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greater
than 5.00 2.25% 2.75% 3.25% 4.50% 0.75% 1.00%
to 1.00
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Level I(B)
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less than
or equal
to 5.00 to
1.00 but 2.00% 2.50% 3.00% 4.25% 0.50% 0.75%
greater
than 4.50
to 1.00
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(ii) by deleting the first reference to "Level I Applicable Margin" in the
proviso and by inserting "Level I(B) Applicable Margin" in lieu thereof, and
(iii) by deleting the second reference to "Level I Applicable Margin" in the
proviso and by inserting "Level I(A) Applicable Margin" in lieu thereof.
(b) The definition of "EBITDA" is amended by deleting the first
proviso and by inserting the following in lieu thereof:
"provided, however, there shall be excluded from EBITDA, to the extent
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therein included, (A) all non-cash foreign currency losses and all non-cash
foreign currency gains, and (B) a non-recurring expense incurred in the
hiring of R. Reeves in an amount not to exceed $2,306,000; provided, that,
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of such amount, not more than $1,200,000 shall be payable in cash"
(c) Section 2.01(e) is amended by deleting "the Conversion Date" and
by inserting "February 22, 2001" in lieu thereof.
(d) Section 2.08(b)(i)(B)(1) is amended by adding the following to the
end of such clause:
"; provided, that, for so long as the ratio of (x) Funded Debt as of
the last day of the most recently ended fiscal quarter to (y) Consolidated
EBITDA of the Borrower and its Subsidiaries for the four fiscal quarters
most recently ended prior to the start of such period, as determined
pursuant to the financial statements most recently delivered to the Agent
at the end of each fiscal quarter, as the case may be, is greater than 5.00
to 1.00, such rate shall be 2.75%"
(e) Section 2.08(b)(ii)(B)(1) is amended by adding the following to
the end of such clause:
"; provided, that, for so long as the ratio of (x) Funded Debt as of
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the last day of the most recently ended fiscal quarter to (y) Consolidated
EBITDA of the Borrower and its Subsidiaries for the four fiscal quarters
most recently ended prior to the start of such period, as determined
pursuant to the financial statements most recently delivered to the Agent
at the end of each fiscal quarter, as the case may be, is greater than 5.00
to 1.00, such rate shall be 3.75%"
(f) Section 2.09(a)(y) is amended by deleting the references to "the
Conversion Date" and by inserting in each case "February 22, 2001" in lieu
thereof.
(g) Section 5.04(a) is amended by deleting the following:
December 31, 2000 5.00 to 1.00
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March 31, 2001 4.50 to 1.00
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June 30, 2001 4.50 to 1.00
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September 30, 2001 4.25 to 1.00
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December 31, 2001 4.00 to 1.00
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and by inserting the following:
December 31, 2000 5.56 to 1.00
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March 31, 2001 6.15 to 1.00
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June 30, 2001 6.00 to 1.00
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September 30, 2001 5.85 to 1.00
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December 31, 2001 5.00 to 1.00
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(h) Section 5.04(b) is amended by deleting the following:
December 31, 2000 1.75 to 1.00
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March 31, 2001 1.75 to 1.00
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June 30, 2001 1.75 to 1.00
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September 30, 2001 1.75 to 1.00
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December 31, 2001 2.00 to 1.00
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and by inserting the following:
December 31, 2000 1.50 to 1.00
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March 31, 2001 1.40 to 1.00
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June 30, 2001 1.45 to 1.00
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September 30, 2001 1.55 to 1.00
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December 31, 2001 1.75 to 1.00
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(i) Section 8.07(a) is amended by deleting "5,000,000" and by
inserting "2,500,000" in lieu thereof.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
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effective on and as of December 31, 2000, provided that the following conditions
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shall have been met on or before February 22, 2001: (a) the Agent shall have
received, in form and substance satisfactory to the Agent and in sufficient
copies for each Lender Party, (1) counterparts of this Amendment executed by the
Borrower and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment and (2)
the consent attached hereto executed by each party to the Subsidiary Guaranty,
and (b) the Borrower shall have paid to the Agent for the account of each Lender
executing this amendment on or before February 22, 2001 a fee equal to 0.25% of
its aggregate Commitments (excluding the Acquisition Commitment).
SECTION 3. Reference to and Effect on the Loan Documents. (a) On and
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after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Collateral Documents and all of
the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Loan Parties under the
Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 4. Costs, Expenses. The Borrower agrees to pay on demand all
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costs and expenses of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be executed
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in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BMAC HOLDINGS, INC.,
as Parent Guarantor
By:_______________________________
Name:
Title:
BETTER MINERALS & AGGREGATES COMPANY, as
Borrower
By:_______________________________
Name:
Title:
BNP PARIBAS (formerly Banque Nationale de
Paris), as Agent, Initial Lender, Swing Line
Bank and Initial Issuing Bank
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND II, INC.
By:_______________________________
Name:
Title:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management LLC, a
Delaware limited liability company, its
authorized signatory
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By:_______________________________
Name:
Title:
NATIONAL BANK OF CANADA
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _______________________________
Name:
Title:
BOEING CAPITAL CORPORATION
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
By:_______________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A.
NEW YORK BRANCH
By:_______________________________
Name:
Title:
ABN AMRO BANK N.V.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
HELLER FINANCIAL, INC.
By:_______________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC
as its Collateral Manager
By:__________________________
Name:
Title:
ARCHIMEDES FUNDING, II, LTD.
By: ING Capital Advisors LLC
as its Collateral Manager
By:__________________________
Name:
Title:
KZH-ING-1 LLC
By:_______________________________
Name:
Title:
KZH-ING-2 LLC
By:_______________________________
Name:
Title:
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) Capital Corporation,
as Attorney-In-Fact
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
NATIONAL CITY BANK
By:_______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:_______________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
MADISON AVENUE CDO I, LIMITED
By: Metropolitan Life Insurance Company
By:_________________________
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:_______________________________
Name:
Title:
FRANKLIN CLO I, LTD.
By:_______________________________
Name:
Title:
FIRST DOMINION FUNDING III
By:__________________________
Name:
Title:
SIMSBURY CLO, LIMITED
By: David L. Babson & Company, Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Collateral Manager
By:__________________________
Name:
Title:
SUFFIELD CLO, LIMITED
By: David L. Babson & Company, Inc.
as Collateral Manager
By:__________________________
Name:
Title:
MAPLEWOOD (CAYMAN) LIMITED
By: David L. Babson & Company, Inc.
under delegated authority form
Massachusetts Mutual Life Insurance
as Investment Manager
By:__________________________
Name:
Title:
MASSACHUSETTS LIFE INSURANCE COMPANY
By: David L. Babson & Company, Inc.
as Investment Adviser
By:___________________________
Name:
Title:
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By:___________________________
Name:
Title:
SEQUILS-ING I (HBDGM), LTD
By: ING Capital Advisors LLC,
as Collateral Manager
By:___________________________
Name:
Title:
EATON VANCE SENIOR DEBT PORTFOLIO
By:__________________________
Name:
Title:
SUBSIDIARY CONSENT
Dated as of December 31, 2000
The undersigned, as parties to one or more of the Loan Documents as
defined in the Credit Agreement referred to in the foregoing Amendment, hereby
consent to such Amendment and the Credit Agreement as amended on or prior to the
date hereof and hereby confirm and agree that (a) notwithstanding the
effectiveness of such Amendment, each of the Loan Documents is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of such Amendment,
each reference in the Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Credit
Agreement as amended by such Amendment, and (b) the Collateral Documents to
which such undersigned is a party and all of the Collateral described therein
do, and shall continue to, secure the payment of all of the Secured Obligations
(in each case, as defined therein).
PENNSYLVANIA GLASS SAND CORPORATION
By:_______________________________
Name:
Title:
THE FULTON LAND AND TIMBER COMPANY
By:_______________________________
Title:
OTTAWA SILICA COMPANY
By:_______________________________
Title:
GEORGE F. PETTINOS, INC.
By:_______________________________
Title:
ELLEN JAY, INC.
By:_______________________________
Title:
U.S. SILICA COMPANY
(a/k/a U.S. Silica Company, Inc.)
By:_______________________________
Title:
BETTER MATERIALS CORPORATION
By:_______________________________
Title:
BMC TRUCKING, INC.
By:_______________________________
Title:
BUCKS COUNTY CRUSHED STONE COMPANY
By:_______________________________
Title:
CHIPPEWA FARMS CORPORATION
By:_______________________________
Title:
SHORE STONE COMPANY, INC.
By:_______________________________
Title:
COMMERCIAL STONE CO., INC.
By:_______________________________
Title:
STONE MATERIALS COMPANY, LLC
By: Better Minerals & Aggregates Company,
as Manager
By:__________________________
Title:
COMMERCIAL AGGREGATES TRANSPORTATION AND SALES,
LLC
By: Stone Materials Company, LLC,
as Manager
By:__________________________
Title: