EXHIBIT 4.1(vi)
FIFTH AMENDMENT
THIS FIFTH AMENDMENT dated as of March 30, 2001 (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 Fifth Amendment Effective Date (as defined
below):
1.1_ Section 1.1 of the Credit Agreement shall be amended by
inserting the following definition in its appropriate
alphabetical position:
Old Castle Transaction means the asset sale transaction
contemplated by that certain Agreement of Purchase and Sale
of Assets, dated as of March 30, 2001, by and among P&C,
Inc. and RM, Inc., as buyers, and Valley Asphalt, Inc.,
Geodyne Beck Rock Products, Inc., Eagle Valley Materials,
Inc. and Monroc, Inc., as sellers.
1.2_ Section 3.1(b) of the Credit Agreement shall be amended by
inserting the following proviso at the end thereof:
; provided, however, the quarterly installment scheduled to
be paid on March 31, 2001 may be deferred, but only to the
earlier to occur of (i) April 13, 2001 and (ii) consummation
of the Old Castle Transaction.
1.3_ Section 6.1.1 of the Credit Agreement shall be amended by
inserting the following clause (c)
(c) Upon the application of the Available Cash
Proceeds of the Old Castle Transaction to the Revolving
Loans as set forth in Section 6.2.1(a), the Revolving
Commitments shall automatically and permanently be reduced
by the amount of such application.
1.4_ Section 6.2.1(a) of the Credit Agreement shall be amended by
(i) inserting the words "and, as set forth in the next paragraph,
Revolving Loans" after the words "Term Loans" the first place
such words appear in the first sentence of such section and (ii)
deleting the last sentence of such section and inserting the
following in lieu thereof:
If the Available Cash Proceeds of the Old Castle
Transactions are greater than $22,000,000, then the Company
shall retain $8,000,000 of such proceeds, but if such
Available Cash Proceeds are less than $22,000,000, then the
Company shall retain only an amount of such proceeds equal
to the difference between (x) $8,000,000 and (y) the amount
by which such Available Cash Proceeds are less than
$22,000,000, and in each such instance, the balance of such
Available Cash Proceeds, which shall constitute Designated
Proceeds realized from the consummation of the Old Castle
Transaction, shall be applied ratably to and in permanent
reduction of the Revolving Loans, the Term A Loans, and the
Term B Loans. In all other cases, the Designated Proceeds
of each Mandatory Prepayment Event shall be applied to the
Term Loans and then, after the payment in full of the Term
Loans, to the Revolving Loans. All prepayments of Term
Loans pursuant to this Section 6.2.1 shall be applied to the
prepayment of the Term Loans pro rata among the Term A Loans
and Term B Loans, with application to the remaining
installments of each on a pro rata basis; provided that the
application of proceeds of the Old Castle Transaction shall
be applied, as to the Term A Loans, first to the installment
of principal scheduled to be paid on March 31, 2001 to the
extent of such installment and second to the remaining
installments of the Term A Loans on a pro rata basis.
1.5_ Section 10 of the Credit Agreement shall be added as a new
subsection 10.29 the following at the end thereof:
10.29 Chief Restructuring Officer. On or before May
31, 2001, will hire an individual with substantial
experience in corporate restructurings under circumstances
similar to those presently confronting the Company and who
is satisfactory to the Required Lenders to serve as "Chief
Restructuring Officer", reporting directly to the board of
directors of the Company.
SECTION 2 WAIVER OF KNOWN EXISTING DEFAULTS. Effective on
the Fifth Amendment Effective Date (as defined below), the
Required Lenders hereby waive any and all Events of Default or
Unmatured Events of Default (including the Events of Default
specified in the Notices sent by the Agent to the Company dated
February 20, 2001 and March 7, 2001) known as the date hereof
(the "Known Existing Defaults") through April 13, 2001 except
that pricing shall remain at Base Rate. The Required Lenders
hereby waive no Events of Default or Unmatured Events of Default
other than the Known Existing Defaults. Moreover, the Agent and
the Lenders waive none of, but instead expressly reserve any and
all of, their claims, rights, powers and remedies under the
Credit Agreement (as amended hereby), the other Loan Documents,
and/or applicable law, including, without limitation, with
respect to any Events of Default or Unmatured Events of Default
other than the Known Existing Defaults.
SECTION 3 PAYMENTS OF PRESENT ASSET SALE PROCEEDS. On or
before March 30, 2001, the Company shall have paid the Present
Asset Sale Proceeds (as defined below) in immediately available
funds to the Agent to be applied against the Term A Loans and
Term B Loans as if this Fifth Amendment had not been executed and
delivered.
SECTION 4 REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Agent and the Lenders that (a) as
of the date hereof, and other than with respect to approximately
$2,100,000 (the "Present Asset Sale Proceeds"), no proceeds of
asset sales are presently in the possession of or under the
direction or control of the Company or any of its affiliates; (b)
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 Fifth Amendment Effective Date with the
same effect as if made on and as of the Fifth 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);
(c) no Event of Default or Unmatured Event of Default exists,
other than the Known Existing Defaults, or will result from the
execution of this Amendment; (d) 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;
(e) 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; (f) 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; and (g) the obligation of the Company
and the other Loan Parties to repay the Loans and the other
obligations under the Loan Documents is absolute and
unconditional, and there exists no right of setoff or recoupment,
counterclaim or defense of any nature whatsoever to payment of
such obligations.
SECTION 5 EFFECTIVENESS. The amendments set forth in
Section 1 above shall become effective as of the date hereof on
such date (the "Fifth Amendment Effective Date") when the Agent
shall have received (a) the Present Asset Sale Proceeds in
immediately available funds, (b) a counterpart of this Amendment
executed by the Company, 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 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 April 2, 2001, an amendment fee in an amount equal to
0.10% of such Lender's Revolving Commitment plus the Term Loans
of such Lender outstanding on the Fifth Amendment Effective Date
and (d) each of the following documents, each in form and
substance satisfactory to the Agent:
5.1_ Reaffirmation. Counterparts of the Reaffirmation of Loan
Documents, substantially in the form of Exhibit A, executed by
the Company, each Guarantor and each Pledgor.
5.2_ 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.
5.3_ 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.
5.4_ Other Documents. Such other documents as the Agent or any
Lender may reasonably request.
SECTION 6 MISCELLANEOUS.
6.1_ 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 Fifth
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.
6.2_ 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.
6.3_ 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 and the reasonable fees of
PricewaterhouseCoopers, L.L.P., financial advisor to the Agent)
in connection with the preparation, execution and delivery of
this Amendment.
6.4_ 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.
6.5_ 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.
6.6_ Fees. The fees referred to in Section 5(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:
Title:
BANK OF AMERICA, N.A., as Agent
By: Illegible
Title: Vice President
BANK OF AMERICA, N.A., as a
Lender and as Issuing Lender
By: Illegible
Title: Managing Director
FLEET NATIONAL BANK (formerly
known as BankBoston, N.A.), as a
Lender
By: Illegible
Title: Senior Vice President
NATIONAL CITY BANK, as a Lender
By: Illegible
Title: Senior 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: Illegible
Title: Director
COMERICA BANK - CALIFORNIA, as a
Lender
By: Illegible
Title: Vice President
ZIONS FIRST NATIONAL BANK, as a
Lender
By: Illegible
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Cecilia M. Valente
Title: Senior Vice President
PILGRIM PRIME RATE TRUST, as a
Lender
By: Pilgrim Investments, Inc., as
its Investment Manager
By:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research, as Investment Advisor
By:
Title:
EATON VANCE INSTITUTIONAL SENIOR
LOAN FUND
By: Eaton Vance Management, as
Investment Advisor
By:
Title:
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as
Investment Advisor
By:
Title:
KZH-HIGHLAND - 2 LLC
By: /s/ Susan Lee
Title: Authorized Agent
ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC,
as Collateral Manager
By: Illegible
Title: Senior Vice President
ARCHIMEDES FUNDING III, LLC
By: ING Capital Advisors, LLC,
as Collateral Manager
By: Illegible
Title: Senior Vice President
SEQUILS-ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC,
as Collateral Manager
By: Illegible
Title: Senior Vice President
BANK ONE, N.A.
By:
Title:
BRANCH BANKING AND TRUST COMPANY
By:
Title:
EXHIBIT A
FORM OF REAFFIRMATION
OF LOAN DOCUMENTS
as of March __, 2001
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").
5. Each other Loan Document (as defined in the Credit
Agreement referred to below).
The Security Agreement, the Guaranty, the Pledge Agreements,
the Patent Security Agreement and the other Loan Documents
referred to above, in each case as heretofore amended, are
collectively referred to herein as the "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 Fifth 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 (i) confirms that each
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 Document to the "Credit Agreement" shall be references to
the Credit Agreement as amended by the Amendment and (ii)
acknowledges and agrees that its obligations under the Documents
are absolute and unconditional, and there exists no right of
setoff or recoupment, counterclaim or defense of any nature
whatsoever thereto.
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:_______________________________
Title:____________________________
SRM HOLDINGS CORP.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES HOLDING CORP.
By:________________________________
Title:_____________________________
WESTERN ROCK PRODUCTS CORP.
By:________________________________
Title:_____________________________
JENSEN CONSTRUCTION & DEVELOPMENT, INC.
By:________________________________
Title:_____________________________
SANDIA CONSTRUCTION, INC.
By:________________________________
Title:_____________________________
TRI-STATE TESTING LABORATORIES, INC.
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
a Nevada corporation
By:________________________________
Title:_____________________________
MOHAVE CONCRETE AND MATERIALS, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
an Arizona corporation
By:________________________________
Title:_____________________________
A-BLOCK COMPANY, INC.,
a California corporation
By:________________________________
Title:_____________________________
COX ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
COX TRANSPORT CORPORATION
By:________________________________
Title:_____________________________
VALLEY ASPHALT, INC.
By:________________________________
Title:_____________________________
GEODYNE BECK ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
SOUTHERN READY MIX, INC.
By:________________________________
Title:_____________________________
DEKALB STONE, INC.
By:________________________________
Title:_____________________________
MULBERRY ROCK CORPORATION
By:________________________________
Title:_____________________________
BHY READY MIX, INC.
By:________________________________
Title:_____________________________
BRADLEY STONE & SAND, INC.
By:________________________________
Title:_____________________________
MONROC, INC.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES, INC.
By:________________________________
Title:_____________________________
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA, N.A., as Agent
By:________________________________
Title:______________________________