FOURTH AMENDMENT
THIS FOURTH AMENDMENT dated as of September 29, 2000 (this
"Amendment") is to the Third Amended and Restated Credit Agreement (as
amended, the "Credit Agreement") dated as of June 5, 1998 among U.S.
AGGREGATES, INC., a Delaware corporation (the "Company"), various financial
institutions (the "Lenders") and BANK OF AMERICA, N.A., 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 Fourth Amendment Effective Date (as defined below):
1.1 Section 1.1 of the Credit Agreement shall be amended by
inserting the following definitions in the appropriate alphabetical order:
"Fourth Amendment Effective Date means the `Fourth Amendment
Effective Date' as defined in the Fourth Amendment to this Agreement
dated as of September 29, 2000.
Maintenance Capital Spending means, for any period, the aggregate
amount of Capital Expenditures made by the Company and its
Subsidiaries during such period necessary to maintain the then
existing properties of the Company and its Subsidiaries in good
working order and condition; provided that Maintenance Capital
Spending shall be equal to (a) $17,200,000 for each of the Computation
Periods ending September 30, 2000 and December 31, 2000 and (b)
$10,000,000 for each Computation Period ending in the 2001 Fiscal
Year."
1.2 The definition of "Capital Expenditures" in Section 1.1 of the
Credit Agreement shall be amended by (a) replacing the comma immediately
prior to the designation "(b)" therein with the word "and"; and (b)
deleting all text in such definition immediately following the word
"replaced" at the end of clause (ii) thereof.
1.3 The definition of "EBITDA" in Section 1.1 of the Credit Agreement
shall be amended and restated in its entirety to read as follows:
"EBITDA means, for any period, Consolidated Net Income of the
Company for such period before accounting for Minority Interests plus,
to the extent deducted in determining Consolidated Net Income,
Interest Expense, income tax expense, depreciation, depletion and
amortization for such period plus, to the extent deducted in
determining Consolidated Net Income, any loss realized upon the sale
or other disposition of property of the Company or any Subsidiary that
is not sold or otherwise disposed of in the ordinary course of
business minus, to the extent reflected in determining Consolidated
Net Income, any gain realized upon the sale or other disposition of
property of the Company or any Subsidiary that is not sold or
otherwise disposed of in the ordinary course of business plus, to the
extent deducted in determining Consolidated Net Income (and without
duplication), expense that is both non-operating and non-recurring
minus, to the extent reflected in determining Consolidated Net Income
(and without duplication), income that is both non-operating and non-
recurring and plus, to the extent deducted in determining Consolidated
Net Income (and without duplication), restructuring charges incurred
in connection with business closures; provided that the consolidated
net income (plus, to the extent deducted in calculating such
consolidated net income, interest expense, income tax expense,
depreciation and amortization) of any Person, or attributable to any
division or similar business unit, in each case set forth on the
schedule of assets to be sold delivered by the Company to the Lenders
prior to the Fourth Amendment Effective Date (the `Designated Asset
Schedule'), disposed of by the Company or any Subsidiary to an
unaffiliated third party in an Asset Sale during such period (a `Sold
Business') will be included on a pro forma basis for the portion of
such period after such Sold Business was sold or otherwise disposed of
in an amount equal to the amount forecasted in good faith by the
Company for such Sold Business as what such Sold Business would have
earned during the remainder of such period until the time of sale or
disposition (as such time was anticipated by the Company in the
estimates referred to below) had it not been sold or otherwise
disposed of, which forecast is set forth in estimates delivered by the
Company to the Agent and the Lenders prior to the Fourth Amendment
Effective Date."
1.4 The definition of "Excess Cash Flow" in Section 1.1 of the Credit
Agreement shall be amended by deleting clause (b)(viii) of such definition
and inserting the following in lieu thereof:
"(viii) any gains resulting from receipt of insurance or
condemnation proceeds (or similar recoveries) during such period to
the extent that (A) such gains were included in calculating EBITDA and
(B) the proceeds of such gains were applied to prepay Loans pursuant
to Section 6.2.1."
1.5 The definition of "Fixed Charge Coverage Ratio" in Section 1.1 of
the Credit Agreement shall be amended by (a) deleting the term "Capital
Expenditures" in clause (ii) thereof and substituting the term "Maintenance
Capital Spending" therefor and (b) inserting the following immediately
after the term "Subsidiaries" in clause (iii) thereof:
"(other than taxes that are directly attributable to Asset Sales)".
1.6 The definition of "Maximum Proceeds Amount" in Section 1.1 of the
Credit Agreement shall be amended by deleting the amount "$30,000,000"
therein and substituting the amount "$100,000,000" therefor.
1.7 The definition of "Net Cash Proceeds" in Section 1.1 of the
Credit Agreement shall be amended by inserting the words "within one year
after the closing of the related Asset Sale" immediately after the words
"or payable" where they appear in clause (a) of such definition.
1.8 Section 2.1.1 of the Credit Agreement shall be amended by
deleting the dollar amount set forth in clause (i) of the proviso thereto
and substituting the amount "$90,000,000" for such amount.
1.9 Section 6.1.1 of the Credit Agreement shall be amended by
inserting an "(a)" immediately prior to the word "After" and (b) inserting
the following clause (b):
"(b) The Revolving Commitments shall be automatically and
permanently reduced to an aggregate amount equal to (x)
$70,000,000 on December 31, 2001, (y) $60,000,000 on June
30, 2002 and (z) $0 on the Revolving Termination Date.
Voluntary reductions of the Revolving Commitments pursuant
to Section 6.1.2 shall be applied to diminish the amount of
scheduled reductions to the Revolving Commitments thereafter
becoming effective in inverse order of scheduled
occurrence."
1.10 Section 6.2.1 of the Credit Agreement shall be amended by
deleting clause (a)(ii) of such Section and substituting the following
therefor:
"(ii) Forthwith upon any Asset Sale that results in any
Excess Cash Proceeds, in an amount equal to 100% of such Excess Cash
Proceeds."
1.11 Section 10.1.2 of the Credit Agreement shall be amended and
restated in its entirety as follows:
"10.1.2 Interim Reports. Promptly when available and (i) in any
event within 30 days after the end of each month, consolidated balance
sheets of the Company and its Subsidiaries as of the end of such
month, and consolidated statements of earnings and cash flows for such
month and for the period beginning with the first day of the
applicable Fiscal Year and ending on the last day of such month,
including a comparison with the corresponding month and period of the
previous Fiscal Year and a comparison with the budget for such month
and for such period of the current Fiscal Year, together with a
certificate of the President or the chief financial officer of the
Company to the effect that such financial statements fairly present
the financial condition and results of operations of the Company and
its Subsidiaries as of the date and periods indicated (subject to
normal year-end adjustments and the absence of footnotes) and (ii) in
any event within 30 days after the end of each Fiscal Quarter,
consolidating balance sheets of the Company and its Subsidiaries as of
the end of such Fiscal Quarter and consolidating statements of
earnings and cash flows of the Company and its Subsidiaries for the
period from the end of the last Fiscal Year to the end of such Fiscal
Quarter, certified by the President or the chief financial officer of
the Company to the effect that such consolidating financial statements
fairly present the financial condition and results of operations of
the Company and its Subsidiaries."
1.12 Section 10.1 of the Credit Agreement shall be amended by adding
the following as Section 10.1.13:
"10.1.13 Cash Flow Forecasts. As soon as practicable and in any
event within five Business Days following the end of each week, (i) a
rolling thirteen week cash flow forecast for the Company and its
Subsidiaries on a consolidated and consolidating basis in reasonable
detail and (ii) a report comparing the actual cash flow of the Company
and its Subsidiaries for such week on a consolidated and consolidating
basis to the cash flow forecast for such week delivered to the Agent
pursuant to clause (i) of this Section 10.1.13, together with an
explanation in reasonable detail of any variance and a certification
from the Chief Financial Officer or the Treasurer of the Company as to
the accuracy of all actual receipts and disbursements set forth
therein."
1.13 Section 10.6.1 of the Credit Agreement shall be amended by
replacing the table in such Section with the following:
"Computation
Period Ending Ratio
-------------- -----
9/30/2000 2.50:1
12/31/2000 1.75:1
3/31/2001 1.80:1
6/30/2001 1.30:1
9/30/2001 1.30:1
12/31/2001 and thereafter 3.00:1."
1.14 Section 10.6.2 of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
"10.6.2 Fixed Charge Coverage Ratio. Not permit the Fixed
Charge Coverage Ratio as of the last day of any Computation Period to
be less than the ratio set forth below for such Computation Period:
"Computation
Period Ending Ratio
-------------- -----
9/30/2000 1.10:1
12/31/2000 0.80:1
3/31/2001 0.80:1
6/30/2001 0.70:1
9/30/2001 0.70:1
12/31/2001 and thereafter 1.10:1."
1.15 Section 10.6.3 of the Credit Agreement shall be amended by
replacing the table in such Section with the following:
"Computation
Period Ending Ratio
-------------- -----
9/30/2000 4.25:1
12/31/2000 5.75:1
3/31/2001 5.50:1
6/30/2001 5.50:1
9/30/2001 5.00:1
12/31/2001 and thereafter 3.00:1."
1.16 Section 10.6 of the Credit Agreement shall be amended by adding
the following Section 10.6.4:
"10.6.4 Minimum EBITDA. (a) Not permit EBITDA for the period
from January 1, 2001 through any date set forth below to be less than
the amount set forth below opposite such date:
Date Amount
---- ------
January 31, 2001 ($331,887)
February 28, 2001 $106,210
March 31, 2001 $2,178,475
April 30, 2001 $4,634,975
May 31, 2001 $9,302,445
June 30, 2001 $14,834,295
July 31, 2001 $19,964,394
August 31, 2001 $25,312,488
September 30, 2001 $30,343,112
October 31, 2001 $33,785,578
November 30, 2001 $35,135,456
December 31, 2001 $35,456,015.
(b) Not permit EBITDA for periods in any Fiscal Year ending after
December 31, 2001 to be less than the levels negotiated in good faith
by the Company and the Required Lenders with respect to such periods
and such Fiscal Year as promptly as practicable after the Company
delivers to the Lenders the projections required by Section 10.1.8
with respect to such Fiscal Year."
1.17 Section 10.10(k) of the Credit Agreement shall be amended by (a)
deleting the word "and" at the end of subclause (iv) thereof; (b) replacing
the semi-colon at the end of subclause (v) thereof with a ","; and (c)
inserting the following:
"(vi) the total consideration for all such Permitted Acquisitions
(including cash and noncash purchase price, liabilities assumed,
deferred or financed purchase price, purchase price characterized as
noncompetition payments and the like) does not exceed (x) $0 during
the 2001 Fiscal Year or (y) $10,000,000 in any Fiscal Year thereafter,
and
(vii) both before and after giving effect to such acquisition,
the Leverage Ratio shall be less than 3.0:1 on a pro forma basis."
1.18 Section 10.11 of the Credit Agreement shall be amended by
deleting clause (x) of the proviso thereof and inserting in lieu thereof
the following:
"(x) if no Event of Default or Unmatured Event of Default exists or
would result therefrom and, if both immediately prior and immediately
after giving effect thereto, the Leverage Ratio is equal to or less
than 3.0:1, the Company may declare and pay dividends on its common
stock in any Fiscal Year 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
payment, as determined by the Company in good faith in a certificate
provided to 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)."
1.19 Section 10.12 of the Credit Agreement shall be amended by (a)
replacing the word "and" immediately prior to the designation "(ii)"
therein with a comma; and (b) deleting all text in such Section immediately
following the figure "$35,000,000" and substituting the following therefor:
"in the 2000 Fiscal Year, and (iii) $10,000,000 in any Fiscal Year
thereafter."
1.20 Section 10.13 of the Credit Agreement shall be amended by
deleting clause (b) of such Section and inserting the following in lieu
thereof:
"(b) arrangements which, together with all other such
arrangements which shall then be in effect, will not require the
payment of any aggregate amount of rentals by the Company and its
Subsidiaries in any Fiscal Year exceeding the lesser of (i) 4% of Net
Revenues for the immediately preceding Fiscal Year and (ii)
$10,000,000 (each being tested as of the end of such Fiscal Year);".
1.21 Section 10.25 of the Credit Agreement shall be amended and
restated in its entirety to read as follows:
"10.25 Interest Rate Protection. Enter into, not later than 45
days after the Fourth Amendment Effective Date, one or more Hedging
Agreements, each with a term of at least two years, on an ISDA
standard form with one or more Lenders or Affiliates thereof or with
counterparties reasonably acceptable to the Agent to fix the interest
rate with respect to not less than one-half of the principal amount of
the Term Loans outstanding on the Fourth Amendment Effective Date in
form and substance reasonably satisfactory to the Agent."
1.22 Section 10 of the Credit Agreement shall be amended by adding the
following Section 10.29:
"10.29 Financial Consultant/Appraisal. (a) The Company shall
engage and retain, at the sole expense of the Company, a financial
consultant satisfactory to the Agent to perform such financial
consulting as the Agent may request, with such financial advisor to
provide a written report to the lenders addressing such matters as the
Agent may request no later than January 15, 2001.
(b) The Company shall engage and retain, at the sole expense of
the Company, an appraiser satisfactory to the Agent to conduct an
appraisal of all quarries and aggregate reserves of each of the
properties of the Company and its Subsidiaries which is not set forth
on the Designated Asset Schedule and which had EBITDA attributable to
such property during the 1999 Fiscal Year or the 2000 Fiscal Year of
greater than $1,500,000, and to report thereon to the Lenders in
writing no later than March 31, 2001."
1.23 Section 14.9.1 of the Credit Agreement shall be amended by (i)
deleting the figure "$5,000,000" where it appears in such Section and
inserting in lieu thereof the figure "$1,000,000" and (ii) adding the
following at the end of the last paragraph thereof:
"Any Lender that is a fund that invests in bank loans may pledge all
or any portion of its rights in connection with this Agreement to the
trustee for holders of obligations owed, or securities issued, by such
fund as security for such obligations or securities, provided that any
foreclosure or other exercise of remedies by such trustee shall be
subject to the provisions of this Section regarding assignments in all
respects. No pledge described in the immediately preceding clause
shall release such Lender from its obligations hereunder."
1.24 Schedule 1.1A of the Credit Agreement shall be replaced by
Schedule 1.1A hereto.
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 Fourth Amendment Effective
Date with the same effect as if made on and as of the Fourth 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
shall become effective as of the date hereof on such date (the "Fourth
Amendment Effective Date") when the Agent shall have received (a) a
counterpart of this Amendment executed by the Company and the Required
Lenders (or, in the case of any party other than the Company from which the
Agent have not received a counterpart hereof, facsimile confirmation of the
execution of a counterpart hereof by such party) (provided that the
amendments set forth in Sections 1.7 and 1.10 shall not become effective
unless and until the Agent shall have received counterparts of this
Amendment executed by the Company, the Required Revolving Lenders, the
Required Term A Lenders and the Required Term B Lenders), (b) for the
account of each Lender that has executed and delivered a counterpart hereof
to counsel for the Agent by 1:00 p.m. (Chicago time) on November 13, 2000,
an amendment fee in an amount equal to 0.50% of such Lender's Revolving
Commitment plus the Term Loans of such Lender outstanding on the Fourth
Amendment Effective Date, (c) for the account of BofA and Banc of America
Securities LLC ("BAS"), fees in the amount set forth in a separate letter
between BofA, BAS and the Company, (d) evidence satisfactory to the Agent
that with respect to the Note and Warrant Purchase Agreement, Section 8A
(Interest Expense Coverage) thereof, Section 8B (Fixed Charge Coverage)
thereof and Section 8C (Leverage Ratio) thereof shall have been amended in
form and substance satisfactory to the Agent and (e) 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 form of Exhibit A, executed by the Company,
each Guarantor and each Pledgor.
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 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 Fourth 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.
4.6 Fees. The fees referred to in Sections 3(b) and (c) hereof are
not subject to Section 7.5 of the Credit Agreement.
Delivered as of the day and year first above written.
U.S. AGGREGATES, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
BANK OF AMERICA, N.A., as Agent
By: /s/ Kathleen M. Carry
Title: Vice President
BANK OF AMERICA, N.A., as a Lender and as
Issuing Lender
By: /s/ James D. Cockey
Title: Principal
FLEET NATIONAL BANK (formerly known as
BankBoston, N.A.), as a Lender
By:
Title:
NATIONAL CITY BANK, as a Lender
By: /s/ Tom Gurbach
Title: Vice President
BANK OF SCOTLAND, as a Lender
By: /s/ Joseph Fratus
Title: Vice President
IBJ WHITEHALL BANK AND TRUST
COMPANY, as a Lender
By:
Title:
COMERICA BANK - CALIFORNIA, as a Lender
By: /s/ Lori Edwards
Title: Senior Vice President
ZIONS FIRST NATIONAL BANK, as a Lender
By: /s/ illegible
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ illegible
Title: Vice President
PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments, Inc., as its
Investment Manager
By: /s/ Mark F. Haak
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: /s/ Payson F. Swaffield
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management, as Investment
Advisor
By: /s/ Payson F. Swaffield
Title: Vice President
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as Investment
Advisor
By: /s/ Payson F. Swaffield
Title: Vice President
KZH-HIGHLAND - 2 LLC
By: /s/ Kimberly Rowe
Title: Authorized Agent
ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC, as Collateral
Manager
By: /s/ Steven Gorski
Title: Vice President and Senior Credit Analyst
ARCHIMEDES FUNDING III, LLC
By: ING Capital Advisors, LLC, as Collateral
Manager
By: /s/ Steven Gorski
Title: Vice President and Senior Credit Analyst
SEQUILS-ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC, as Collateral
Manager
By: /s/ Steven Gorski
Title: Vice President and Senior Credit Analyst
BANK ONE, N.A.
By: /s/ Stephen C. Price
Title: First Vice President
BRANCH BANKING AND TRUST COMPANY
By: /s/ illegible
Title: Corp. Accts. Officer
EXHIBIT A
REAFFIRMATION
OF LOAN DOCUMENTS
as of September 29, 2000
Bank of America, N.A., as Agent
and the other parties to the Third
Amended and Restated Credit
Agreement referred to below
1455 Market Street
San Francisco, California 94103
Attn: Agency Management Services #5596
Re: Reaffirmation of Loan Documents
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,
Jensen Construction and Development, Inc., a Nevada corporation, Sandia
Construction, Inc., a Nevada corporation, Cox 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 Beck Rock Products, 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,
Bradley Stone & Sand, Inc., a Tennessee corporation, Monroc, Inc., a
Delaware corporation, Western Aggregates, Inc., a Utah corporation, and
Bank of America, N.A. 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, Jensen Construction and
Development, Inc., Sandia Construction, Inc., Cox 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 Beck Rock Products,
Inc., Western Rock Products Corp., Tri-State Testing Laboratories, Inc.,
Dekalb Stone, Inc., Bradley Stone & Sand, 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 Cox
Rock Products Inc. in favor of the Agent (the "Patent Security Agreement").
The Security Agreement, the Guaranty, the Pledge Agreements 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 Fourth 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.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
SRM HOLDINGS CORP.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
WESTERN AGGREGATES HOLDING CORP.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
WESTERN ROCK PRODUCTS CORP.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
JENSEN CONSTRUCTION & DEVELOPMENT, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
SANDIA CONSTRUCTION, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
TRI-STATE TESTING LABORATORIES, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
MOHAVE CONCRETE AND MATERIALS, INC.,
a Nevada corporation
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
MOHAVE CONCRETE AND MATERIALS, INC.,
an Arizona corporation
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
A-BLOCK COMPANY, INC.,
an Arizona corporation
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
A-BLOCK COMPANY, INC.,
a California corporation
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
COX ROCK PRODUCTS, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
COX TRANSPORT CORPORATION
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
VALLEY ASPHALT, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
GEODYNE BECK ROCK PRODUCTS, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
SOUTHERN READY MIX, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
DEKALB STONE, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
MULBERRY ROCK CORPORATION
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
BHY READY MIX, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
BRADLEY STONE & SAND, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
MONROC, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
WESTERN AGGREGATES, INC.
By: /s/ Michael J. Stone
Title: Chief Financial Officer, Treasurer
and Secretary
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA, N.A., as Agent
By: /s/ Kathleen M. Carry
Title: Vice President
SCHEDULE 1.1A
PRICING SCHEDULE
From November __, 2000 through December 31, 2000, the Applicable ABR Margin
for Revolving Loans and Term A Loans shall be 2.25% per annum, the
Applicable Eurodollar Margin for Revolving Loans and Term A Loans shall be
3.50% per annum, the Applicable ABR Margin for Term B Loans shall be 2.25%
per annum, the Applicable Eurodollar Margin for Term B Loans shall be 4.00%
per annum and the Non-Use Fee Rate shall be 0.50%.
From and after January 1, 2001, the Applicable ABR Margin, Applicable
Eurodollar Margin and Non-Use Fee Rate shall be determined based on the
Leverage Ratio as follows:
on and after any date specified below on which the Applicable ABR
Margin and Applicable Eurodollar Margin for Revolving Loans, Term A
Loans and Term B Loans and the Non-Use Fee Rate are to be adjusted,
the rate per annum set forth in the table below opposite the
applicable Leverage Ratio:
Applicable Applicable
Eurodollar ABR Margin
Margin (Revolving Applicable Applicable
(Revolving Loans and Eurodollar ABR Margin
Leverage Loans and Term A Non-Use Margin (Term (Term B
Ratio Term A Loans) Loans) Fee Rate B Loans) Loans)
Greater than 3.50% 2.25% 0.50% 4.00% 2.25%
or equal to
4.50:1
Greater than 3.25% 2.00% 0.50% 3.75% 2.25%
or equal to
4.00:1 but
less than
4.50:1
Greater than 3.00% 1.75% 0.50% 3.75% 2.25%
or equal to
3.50:1 but
less than
4.00:1
Greater than 2.50% 1.50% 0.425% 3.50% 2.00%
or equal to
3.00:1 but
less than
3.50:1
Less than 2.00% 1.00% 0.375% 3.25% 2.00%
3.00:1
The Applicable ABR Margin, Applicable Eurodollar Margin and Non-Use
Fee Rate shall be adjusted, to the extent applicable, following each Fiscal
Quarter (commencing with the Fiscal Quarter ended September 30, 2000) on
the earlier to occur of (x) 30 days (or, in the case of the last Fiscal
Quarter of any year, 120 days) after the end of each Fiscal Quarter (or, in
the case of the Fiscal Quarter ended September 30, 2000, January 1, 2001),
based on the Leverage Ratio as of the last day of such Fiscal Quarter and
(y) the date the financial statements required by Section 10.1.1 or 10.1.2,
as applicable, and the related Compliance Certificate, if any, required by
Section 10.1.3, are delivered in accordance with such Sections (provided
that this clause (y) shall not apply to calculations for the Computation
Period ended on September 30, 2000); it being understood that if the
Company fails to deliver the financial statements required by Section
10.1.1 or 10.1.2, as applicable, and the related Compliance Certificate, if
any, required by Section 10.1.3 by the 30th day (or, if applicable, the
120th day) after any Fiscal Quarter, the Applicable ABR Margin for
Revolving Loans and Term A Loans shall be 2.25% per annum, the Applicable
Eurodollar Margin for Revolving Loans and Term A Loans shall be 3.50% per
annum, the Applicable ABR Margin for Term B Loans shall be 2.25% per annum,
the Applicable Eurodollar Margin for Term B Loans shall be 4.00% per annum
and the Non-Use Fee Rate shall be 0.50% per annum until such financial
statements and Compliance Certificate are delivered. In addition, at all
times when an Event of Default or Unmatured Event of Default shall have
occurred and be continuing, there shall be no reduction in the Applicable
ABR Margin, the Applicable Eurodollar Margin or the Non-Use Fee Rate.