AMENDED AND RESTATED COMPANY PLEDGE AGREEMENT
THIS AMENDED AND RESTATED COMPANY PLEDGE AGREEMENT (this "Agreement") dated
as of June 5, 1998 is between U.S. AGGREGATES, INC., a Delaware corporation (the
"Company"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (in its
individual capacity, "BofA") in its capacity as agent for the Lenders referred
to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Company has entered into a Third Amended and Restated Credit
Agreement dated as of June 5, 1998 (as amended or otherwise modified from time
to time, the "Credit Agreement"; capitalized terms used but not defined herein
are used as defined in the Credit Agreement), with the lenders (individually
each a "Lender" and collectively the "Lenders") as are, or may from time to time
become, parties thereto and the Agent, pursuant to which the Lenders have agreed
to make loans to, and issue or participate in letters of credit for the account
of, the Company;
WHEREAS, the Credit Agreement amends and restates an Amended and Restated
Credit Agreement dated as of October 15, 1996 among the Company, various
financial institutions and the Agent (as amended, the "Existing Credit
Agreement");
WHEREAS, the Company and the Agent entered into a Pledge Agreement dated as
of July 13, 1994, as heretofore amended (the "Existing Agreement");
WHEREAS, as a condition precedent to making of loans and the issuance of
letters of credit under the Credit Agreement, the Company is required to execute
and deliver a pledge agreement in the form of this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Company under or in
connection with the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Existing Agreement is hereby amended and restated, and the parties hereto agree,
as follows:
1. DEFINITIONS. When used herein, the following terms shall have the
following meanings (such definitions to be applicable to both the singular and
plural forms of such terms):
BUSINESS DAY has the meaning assigned to such term in the Credit Agreement.
COLLATERAL - see SECTION 2.
DEFAULT means the occurrence of any of the following events: (a) any
Unmatured Event of Default under Section 12.1.1 or 12.1.4 of the Credit
Agreement; (b) any Event of Default; or (c) any warranty of the Company
herein is untrue or misleading in any material respect and, as a result
thereof, the Agent's security interest in, or rights and remedies with
respect to, any material portion of the Collateral is impaired or otherwise
adversely affected.
EVENT OF DEFAULT has the meaning assigned to such term in the Credit
Agreement.
ISSUER means the issuer of any of the shares of stock or other securities
representing all or any of the Collateral.
LIABILITIES means all obligations (monetary or otherwise) of the Company,
howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with the Credit Agreement, the Notes or
any other Loan Document to which it is a party.
LOAN DOCUMENT has the meaning assigned to such term in the Credit
Agreement.
UNMATURED EVENT OF DEFAULT has the meaning assigned to such term in the
Credit Agreement.
2. PLEDGE. As security for the payment of all Liabilities, the Company hereby
pledges to the Agent, and grants to the Agent a security interest in, all of the
following:
A. All of the shares of stock and other securities described in SCHEDULE I
hereto, all of the certificates and/or instruments representing such shares of
stock and other securities, and all cash, securities, dividends, rights and
other property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such shares
or other securities;
B. All additional shares of stock of any of the Issuers listed in SCHEDULE I
hereto at any time and from time to time acquired by the Company in any manner,
all of the certificates representing such additional shares, and all cash,
securities, dividends, rights and other property at any time and from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such shares;
C. All other property hereafter delivered to the Agent in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such property, and all cash, securities, interest,
dividends, rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
thereof; and
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D. All products and proceeds of all of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
The Company agrees to deliver to the Agent, promptly upon receipt and in due
form for transfer (i.e., endorsed in blank or accompanied by stock or bond
powers executed in blank), any Collateral which may at any time or from time to
time be in or come into the possession or control of the Company; and prior to
the delivery thereof to the Agent, such Collateral shall be held by the Company
separate and apart from its other property and in express trust for the Agent.
3. WARRANTIES; FURTHER ASSURANCES. The Company warrants to the Agent and each
Lender that: (a) the Company is (or at the time of any future delivery, pledge,
assignment or transfer thereof will be) the legal and equitable owner of the
Collateral free and clear of all liens, security interests and encumbrances of
every description whatsoever other than the security interest created hereunder;
(b) the pledge and delivery of the Collateral pursuant to this Agreement will
create a valid perfected security interest in the Collateral in favor of the
Agent; (c) all shares of stock referred to in SCHEDULE I hereto are duly
authorized, validly issued, fully paid and non-assessable; (d) as to each Issuer
whose name appears in SCHEDULE I hereto, the Collateral represents on the date
hereof not less than the applicable percent (as shown in SCHEDULE I hereto) of
the total shares of capital stock issued and outstanding of such Issuer; and (e)
the information contained in SCHEDULE I hereto is true and accurate in all
respects.
So long as any of the Liabilities shall be outstanding or any commitment shall
exist on the part of the Agent or any Lender with respect to the creation of any
Liabilities, the Company (i) shall not, without the express prior written
consent of the Agent, sell, assign, exchange, pledge or otherwise transfer,
encumber, or grant any option, warrant or other right to purchase the stock of
any Issuer which is pledged hereunder, or otherwise diminish or impair any of
its rights in, to or under any of the Collateral; (ii) shall execute such
Uniform Commercial Code financing statements and other documents (and pay the
costs of filing and recording or re-filing and re-recording the same in all
public offices deemed necessary or appropriate by the Agent) and do such other
acts and things, all as the Agent may from time to time reasonably request, to
establish and maintain a valid, perfected security interest in the Collateral
(free of all other liens, claims and rights of third parties whatsoever) to
secure the performance and payment of the Liabilities; (iii) will execute and
deliver to the Agent such stock powers and similar documents relating to the
Collateral, satisfactory in form and substance to the Agent, as the Agent may
reasonably request; and (iv) will furnish the Agent or any Lender such
information concerning the Collateral as the Agent or such Lender may from time
to time reasonably request, and will permit the Agent or any Lender or any
designee of the Agent or any Lender, from time to time at reasonable times and
on reasonable notice, to inspect, audit and make copies of and extracts from all
records and all other papers in the possession of the Company which pertain to
the Collateral, and will, upon request of the Agent at any time when a Default
has occurred and is continuing, deliver to the Agent all of such records and
papers.
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4. HOLDING IN NAME OF AGENT, ETC. The Agent may from time to time after the
occurrence and during the continuance of a Default, without notice to the
Company, take all or any of the following actions: (a) transfer all or any part
of the Collateral into the name of the Agent or any nominee or sub-agent for the
Agent, with or without disclosing that such Collateral is subject to the lien
and security interest hereunder, (b) appoint one or more sub-agents or nominees
for the purpose of retaining physical possession of the Collateral, (c) notify
the parties obligated on any of the Collateral to make payment to the Agent of
any amounts due or to become due thereunder, (d) endorse any checks, drafts or
other writings in the name of the Company to allow collection of the Collateral,
(e) enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or renew
for any period (whether or not longer than the original period) any obligations
of any nature of any party with respect thereto, and (f) take control of any
proceeds of the Collateral.
5. VOTING RIGHTS, DIVIDENDS, ETC. (a) Notwithstanding certain provisions of
SECTION 4 hereof, so long as the Agent has not given the notice referred to in
PARAGRAPH (b) below:
A. The Company shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription rights (but
any such exercise by the Company of stock purchase or subscription rights
may be made only from funds of the Company not comprising part of the
Collateral) relating or pertaining to the Collateral or any part thereof
for any purpose; PROVIDED, HOWEVER, that the Company agrees that it will
not exercise any such right or power in any manner which would have a
material adverse effect on the value of the Collateral or any part thereof.
B. The Company shall be entitled to receive and retain any and all
lawful dividends payable in respect of the Collateral which are paid in
cash by any Issuer if such dividends are permitted by the Credit Agreement,
but all dividends and distributions in respect of the Collateral or any
part thereof made in shares of stock or other property or representing any
return of capital, whether resulting from a subdivision, combination or
reclassification of Collateral or any part thereof or received in exchange
for Collateral or any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to which any Issuer
may be a party or otherwise or as a result of any exercise of any stock
purchase or subscription right, shall be and become part of the Collateral
hereunder and, if received by the Company, shall be forthwith delivered to
the Agent in due form for transfer (i.e., endorsed in blank or accompanied
by stock or bond powers executed in blank) to be held for the purposes of
this Agreement.
C. The Agent shall execute and deliver, or cause to be executed and
delivered, to the Company, all such proxies, powers of attorney, dividend
orders and other instruments as the Company may reasonably request for the
purpose of enabling the Company to exercise the rights and powers which it
is entitled to exercise pursuant to CLAUSE (a) above and to receive the
dividends which it is authorized to retain pursuant to CLAUSE (b) above.
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(b) Upon notice from the Agent during the existence of a Default, and so long
as the same shall be continuing, all rights and powers which the Company is
entitled to exercise pursuant to SECTION 5(a)(A) hereof, and all rights of the
Company to receive and retain dividends pursuant to SECTION 5(a)(B) hereof,
shall forthwith cease, and all such rights and powers shall thereupon become
vested in the Agent which shall have, during the continuance of such Default,
the sole and exclusive authority to exercise such rights and powers and to
receive such dividends. Any and all money and other property paid over to or
received by the Agent pursuant to this PARAGRAPH (b) shall be retained by the
Agent as additional Collateral hereunder and applied in accordance with the
provisions hereof.
6. REMEDIES. Whenever a Default shall exist, the Agent may exercise from
time to time any rights and remedies available to it under the Uniform
Commercial Code as in effect in Illinois or otherwise available to it. Without
limiting the foregoing, whenever a Default shall exist the Agent (a) may, to the
fullest extent permitted by applicable law, without notice, advertisement,
hearing or process of law of any kind, (i) sell any or all of the Collateral,
free of all rights and claims of the Company therein and thereto, at any public
or private sale or brokers' board and (ii) bid for and purchase any or all of
the Collateral at any such public sale and (b) shall have the right, for and in
the name, place and stead of the Company, to execute endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to all
or any of the Collateral. The Company hereby expressly waives, to the fullest
extent permitted by applicable law, any and all notices, advertisements,
hearings or process of law in connection with the exercise by the Agent of any
of its rights and remedies during the continuance of a Default. If any
notification of intended disposition of any of the Collateral is required by
law, such notification, if mailed, shall be deemed reasonably and properly given
if mailed at least ten (10) days before such disposition, postage prepaid,
addressed to the Company, either at the address of the Company shown below, or
at any other address of the Company appearing on the records of the Agent. Any
proceeds of any of the Collateral may be applied by the Agent to the payment of
expenses in connection with the Collateral, including, without limitation,
reasonable attorneys' fees and legal expenses, and any balance of such proceeds
may be applied by the Agent toward the payment of such of the Liabilities, and
in such order of application, as the Agent may from time to time elect (and,
after payment in full of all Liabilities, any excess shall be delivered to the
Company or as a court of competent jurisdiction shall direct).
The Agent is hereby authorized to comply with any limitation or restriction in
connection with any sale of Collateral as it may be advised by counsel is
necessary in order to (a) avoid any violation of applicable law (including,
without limitation, compliance with such procedures as may restrict the number
of prospective bidders and purchasers and/or further restrict such prospective
bidders or purchasers to Persons who will represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of such Collateral) or (b) obtain any required approval
of the sale or of the purchase by any governmental regulatory authority or
official, and the Company agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner and that the Agent shall not
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be liable or accountable to the Company for any discount allowed by reason of
the fact that such Collateral is sold in compliance with any such limitation or
restriction.
7. GENERAL. The Agent shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if it takes such action for that
purpose as the Company shall request in writing, but failure of the Agent to
comply with any such request shall not of itself be deemed a failure to exercise
reasonable care, and no failure of the Agent to preserve or protect any rights
with respect to the Collateral against prior parties, or to do any act with
respect to preservation of the Collateral not so requested by the Company, shall
be deemed a failure to exercise reasonable care in the custody or preservation
of any Collateral.
No delay on the part of the Agent in exercising any right, power or remedy
shall operate as a waiver thereof, and no single or partial exercise of any such
right, power or remedy shall preclude any other or further exercise thereof, or
the exercise of any other right, power or remedy. No amendment, modification or
waiver of, or consent with respect to, any provision of this Agreement shall be
effective unless the same shall be in writing and signed and delivered by the
Agent, and then such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
All notices hereunder shall be in writing (including, without limitation,
facsimile transmission) and shall be sent to the applicable party at its address
shown below its signature hereto or at such other address as such party may, by
written notice received by the other parties hereto, have designated as its
address for such purpose. Notices sent by facsimile transmission shall be
deemed to have been given when sent; notices sent by mail shall be deemed to
have been given three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery shall be
deemed to have been given when received.
All rights, powers and remedies of the Agent and the Lenders expressed herein
are in addition to all other rights, powers and remedies possessed by them,
including, without limitation, those provided by applicable law or in any other
written instrument or agreement relating to any of the Liabilities or any
security therefor.
This Agreement has been delivered at Chicago, Illinois, and shall be construed
in accordance with and governed by the internal laws of the State of Illinois.
Wherever possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
this Agreement.
This Agreement shall be binding upon the Company and the Agent and their
respective successors and assigns, and shall inure to the benefit of the Company
and the Agent and the successors and assigns of the Agent.
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This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together constitute
but one and the same Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS AGREEMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH OF THE COMPANY, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. EACH OF THE COMPANY, THE AGENT AND (BY ACCEPTING THE BENEFITS
HEREOF) EACH LENDER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
EACH OF THE COMPANY, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING
FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of
the day and year first written above.
U.S. AGGREGATES, INC.
By: /s/ Michael Stone
------------------------------------
Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/ Kevin P. Morrison
-------------------------------------
Vice President
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SCHEDULE I
TO
COMPANY PLEDGE AGREEMENT
STOCK
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Issuer No. Shares and Outstanding Outstanding
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