U.S. AGGREGATES, INC.
-----------------------------------
AMENDMENT NO. 3 TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
-----------------------------------
Dated as of September 29, 2000
$30,000,000 Senior Subordinated Notes Due November 22, 2006
and
$15,000,000 Senior Subordinated Notes Due November 22, 2008
<PAGE>
U.S. AGGREGATES, INC.
$30,000,000 Senior Subordinated Notes Due November 22, 2006
and
$15,000,000 Senior Subordinated Notes Due November 22, 2008
AMENDMENT NO. 3 TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
As of September 29, 2000
The Prudential Insurance Company of America
c/o Prudential Capital Group
Two Ravinia Drive, Suite 1400
Atlanta, Georgia 30346
Ladies and Gentlemen:
U.S. AGGREGATES, INC., a Delaware corporation (together with its
successors and assigns, the "COMPANY"), agrees with you as follows:
1. PRIOR AMENDMENT AND ISSUANCE OF NOTES.
The Company has entered into an Amendment No. 1 to Amended and
Restated Note and Warrant Purchase Agreement, dated as of April 14, 1999
and an Amendment No. 2 to Amended and Restated Note and Warrant Purchase
Agreement, dated as of August 12, 1999, pursuant to which certain
amendments were made to the Amended and Restated Note and Warrant Purchase
Agreement dated as of June 5, 1998 (as in effect immediately prior to
giving effect to the amendments provided for by this Agreement, the
"Existing Note Purchase Agreement" and, as amended pursuant to this
Agreement and as may be further amended, restated or otherwise modified
from time to time, the "Amended Note Purchase Agreement") whereby
$30,000,000 aggregate principal amount of 10.34% Senior Subordinated Notes
due November 22, 2006 and $15,000,000 aggregate principal amount of 10.09%
Senior Subordinated Notes due November 22, 2008 (such Notes as in effect
immediately prior to giving effect to the amendments provided for by this
Agreement, the "Existing Notes" and, as amended pursuant to this Agreement
and as may be further, as may be amended, restated or otherwise modified
from time to time, the "Notes") of the Company have been issued to you and
are currently outstanding.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Existing Note Purchase Agreement.
3. REQUEST FOR CONSENT TO AMENDMENTS.
The Company requests that you consent to the amendments to the
Existing Note Purchase Agreement and the Existing Notes provided for by
this Agreement (the "Amendments").
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce you to enter into this Agreement and to consent to the
Amendments, the Company represents and warrants as follows:
4.1 Organization and Existence.
The Company is a corporation duly organized and existing in good
standing under the laws of the State of Delaware and has the requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations under the Amended Note Purchase Agreement.
4.2 Actions Pending.
There are no actions, suits, investigations or proceedings pending or,
to the knowledge of the Company, threatened against the Company or any of
its Subsidiaries, or any properties or rights of the Company or any of its
Subsidiaries, by or before any court, arbitrator or administrative or
governmental body that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
4.3 Amendment Authorized; Obligations Enforceable.
(a) Agreement is Legal and Authorized. The execution and
delivery by the Company of this Agreement, and compliance by the
Company with all of the provisions of the Amended Note Purchase
Agreement, are within the corporate powers of the Company.
(b) Company Obligations are Enforceable. The Company has duly
authorized this Agreement by all necessary action on its part. This
Agreement has been executed and delivered by one or more duly
authorized officers of the Company, and each of this Agreement and the
Amended Note Purchase Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms,
except that the enforceability thereof may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws
affecting the enforceability of creditors' rights generally; and
(ii) subject to the availability of equitable remedies.
4.4 No Conflicts.
Neither the execution nor delivery of this Agreement, nor fulfillment
of nor compliance with the terms and provisions of the Amended Note
Purchase Agreement and the other Financing Documents will conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute
a default under, or result in any violation of, or result in the creation
of any Lien upon any of the Properties of the Company or any of its
Subsidiaries pursuant to, the charter or bylaws of the Company or any of
its Subsidiaries, any award of any arbitrator or any agreement (including
any agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company or any of its
Subsidiaries is subject.
4.5 Governmental Consent.
Neither the execution and delivery of this Amendment, nor the
performance by the Company of its obligations under the Amended Note
Purchase Agreement and the other Financing Documents, is such as to require
any authorization, consent, approval, exemption or other action by or
notice to or filing with any court or administrative or governmental body
(other than routine filings with the Securities and Exchange Commission
and/or state Blue Sky authorities) on the part of the Company in connection
with the execution and delivery of this Agreement or fulfillment of or
compliance with the terms and provisions of the Amended Note Purchase
Agreement or of the other Financing Documents.
4.6 Full Disclosure.
This Agreement and the documents, certificates or other writings
delivered to you by or on behalf of the Company in connection with the
proposal and negotiation of the Amendments, taken as a whole, do not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made. There is no fact
known to the Company that could reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the other
documents, certificates and other writings delivered to you by or on behalf
of the Company specifically for use in connection with the transactions
contemplated by the Note Purchase Agreement and this Agreement.
4.7 Amendment of Bank Credit Agreement.
Attached hereto as Exhibit C is a copy of the Fourth Amendment to the
Bank Credit Agreement (the "Fourth Amendment"), which has been duly
executed and delivered by each of the parties thereto, is true, correct and
complete, and (subject only to the effectiveness of this Agreement) is in
full force and effect.
4.8 No Defaults.
No event has occurred and no condition exists that, upon the execution
and delivery of this Agreement and the effectiveness of the Amendments and
the Fourth Amendment, would constitute a Default or an Event of Default.
5. AMENDMENTS.
5.1 Amendments to Existing Note Purchase Agreement and Existing
Notes.
Subject to paragraph 5.2, (i) the Existing Note Purchase Agreement is
hereby amended in the manner specified in Exhibit A1 to this Agreement and
(ii) the Existing Notes are hereby amended in the manner specified in
Exhibit A2.
5.2 Effectiveness of Amendments.
The amendments of the Existing Note Purchase Agreement and the
Existing Notes contemplated by paragraph 5.1, Exhibit A1 and Exhibit A2
shall become effective only upon the date of the satisfaction in full of
the following conditions precedent (which date shall be the "Effective
Date"):
(a) the Company and you shall have executed and delivered a
counterpart of this Agreement;
(b) the representations and warranties set forth in paragraph 4
shall be true and correct;
(c) the Company shall have authorized, by all necessary
corporate action, the execution and delivery of this Agreement and the
performance of all obligations of, and the satisfaction of all closing
conditions set forth in, this paragraph 5 by, and the consummation of
all transactions contemplated by this Agreement by, the Company;
(d) each Restricted Subsidiary shall have executed and delivered
the Guarantor Consent in respect of its obligations under the
Subsidiary Guaranty, substantially in the form attached hereto as
Exhibit B;
(e) the Company shall have paid you an amendment fee in the
amount of $225,000;
(e) the Company shall have paid the fees and expenses of your
special counsel as provided in Section 6; and
(f) all proceedings taken in connection with this Agreement and
all documents and papers relating thereto shall be satisfactory to you
and your special counsel, and you and your special counsel shall have
received copies of such documents and papers as you or your special
counsel may reasonably request in connection herewith, including any
legal opinions of counsel to the Company in respect of the
transactions contemplated hereunder.
6. EXPENSES.
Whether or not the Amendments become effective, the Company will on
the Effective Date (or if an invoice is delivered subsequent to the
Effective Date or if the Amendments do not become effective, promptly and
in any event within 10 days of receiving any statement or invoice therefor)
pay all fees, expenses and costs relating to this Agreement, including, but
not limited to, (a) the cost of reproducing this Agreement and the other
documents delivered in connection herewith and (b) the reasonable fees and
disbursements of your special counsel (namely, Bingham Dana LLP, or its
successor or assigns) incurred in connection with the preparation,
negotiation and delivery of this Agreement. Nothing in this paragraph 6
shall limit the Company's obligations under paragraph 14B of the Amended
Note Purchase Agreement.
7. MISCELLANEOUS.
7.1 Part of Note Purchase Agreement, Future References, etc.
This Agreement shall be construed in connection with and as a part of
the Existing Note Purchase Agreement and, except as expressly amended by
this Agreement, all terms, conditions and covenants contained in the
Existing Note Purchase Agreement and the Existing Notes are hereby ratified
and shall be and remain in full force and effect. Any and all notices,
requests, certificates and other instruments executed and delivered after
the execution and delivery of this Agreement may refer to the Existing Note
Purchase Agreement and the Existing Notes without making specific reference
to this Agreement, but nevertheless all such references shall include this
Agreement unless the context otherwise requires.
7.2 Counterparts; Effectiveness.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Delivery of an executed signature page by facsimile
transmission shall be effective as delivery of a manually signed
counterpart of this Agreement.
7.3 Successors and Assigns.
All covenants and other agreements in this Agreement contained by or
on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including,
without limitation, any Transferee) whether so expressed or not.
7.4 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
[Remainder of page intentionally left blank; next page is signature page.]
<PAGE>
If you are in agreement with the foregoing, please so indicate by
signing the agreement below on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing shall
become a binding agreement among you and the Company.
Very truly yours,
U.S. AGGREGATES, INC.
By: /s/ Michael J. Stone
Name: Michael J. Stone
Title: Chief Financial Officer,
Treasurer and Secretary
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Robert R. Derrick
Name: Robert R. Derrick
Title: Vice President
<PAGE>
EXHIBIT A1
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. The first sentence of Paragraphs 3(i) (Authorization of 1998
Notes) of the Existing Note Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"The Company will authorize the issue of its senior subordinated
promissory notes in the aggregate principal amount of Fifteen Million
Dollars ($15,000,000), to be dated the date of issue thereof, to
mature November 22, 2008, to bear interest, payable quarterly in
arrears, on the unpaid balance thereof until the principal thereof
shall have become due and payable at the rate and manner specified
therein, and to be in substantially the form of Exhibit A2 hereto (the
"1998 Notes")."
2. Paragraphs 8A (Interest Expense Coverage), 8B (Fixed Charge
Coverage), 8C (Leverage Ratio) and 8E of the Existing Note Purchase
Agreement are hereby amended and restated in its entirety to read
respectively as follows:
"8A. Interest Expense Coverage. The Company will not permit the
ratio of EBITDA to Consolidated Interest Expense,
(i) for the period of twelve (12) consecutive calendar
months most recently ended as of the Closing Date, to be less
than 1.75 to 1.0, and
(ii) for any period of four (4) consecutive fiscal quarters
of the Company ending in any period specified in the table below,
to be less than the ratio set forth opposite such period in such
table:
Fiscal Period Ratio
Closing Date 1.75 to 1.00
through September
29, 1999
September 30, 2.00 to 1.00
1999 through
September 29,
2000
September 30, 2.25 to 1.00
2000 through
December 30, 2000
December 31, 2000 1.60 to 1.00
through March 30,
2001
March 31, 2001 1.65 to 1.00
through June 29,
2001
June 30, 2001 1.20 to 1.00
through December
30, 2001
December 31, 2001 2.25 to 1.00
and at all times
thereafter
"8B. Fixed Charge Coverage. The Company will not permit the
ratio of
(i) EBITDA for any period of four (4) consecutive fiscal
quarters of the Company to
(ii) Consolidated Fixed Charges for such period
to be less than the ratio set forth opposite such period in
such table:
Fiscal Period Ratio
Closing Date .85 to 1.00
through December
30, 2000
December 31, 2000 .65 to 1.00
through June 29,
2001
June 30, 2001 .55 to 1.00
through December
30, 2001
December 31, 2001 .90 to 1.00
and at all times
thereafter
"8C. Leverage Ratio. The Company will not, as of any Calculation
Date in any period specified in the table below, permit the ratio (the
"Leverage Ratio") of
(i) Consolidated Debt (excluding, to the extent included in
the computation of Consolidated Debt at such time, any
outstanding indebtedness for borrowed money evidenced by the
Harris Trust Note), determined on such Calculation Date after
giving effect to the incurrence of any Debt by the Company or any
Restricted Subsidiary on such date and the application of the
proceeds thereof, to
(ii) EBITDA for the period of four (4) consecutive fiscal
quarters of the Company most recently ended at such time,
to be greater than the ratio set forth opposite such period in such
table:
Fiscal Period Ratio
Closing Date up to but not 6.0 to 1.00
including September 30, 1998
September 30, 1998 up to but not 5.25 to 1.00
including September 30, 1999
September 30, 1999 up to but not 4.75 to 1.00
including September 30, 2000
September 30, 2000 up to but not 5.00 to 1.00
including December 31, 2000
December 31, 2000 up to but not 6.50 to 1.00
including March 31, 2001
March 31, 2001 up to but not 6.25 to 1.00
including September 30, 2001
September 30, 2001 up to but not 6.00 to 1.00
including December 31, 2001
December 31, 2001 and thereafter 4.00 to 1.00
As used in this paragraph 8C, "Calculation Date" means
(a) the Closing Date,
(b) the last day of each fiscal quarter of the Company, or
(c) the date of any Acquisition Loan,
as the case may be."
"8E. Restricted Payments The Company will not, and will not
permit any Restricted Subsidiary to,
(i) declare or pay any dividend (other than stock
dividends) or distribution on any of its capital stock,
(ii) purchase or redeem any capital stock of the
Company or any Restricted Subsidiary (or any warrants, options or
other rights in respect thereof),
(iii) make any other distribution to shareholders of the
Company or any Restricted Subsidiary,
(iv) prepay, purchase, defease or redeem any Debt
subordinate to the Notes, or
(v) set aside funds for any of the foregoing;
provided that (i) any Restricted Subsidiary may declare dividends, or
make other distributions, to the Company or to another Restricted
Subsidiary of the Company (but not to any other Person) and (ii) so
long as no Event of Default or 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 of the Company in an amount not to exceed 15% of
Consolidated Net Income for the immediately preceding fiscal year of
the Company (provided, that the Company may only pay any dividend
pursuant to this clause (ii) if, after giving effect thereto, the
Company shall be in compliance with paragraph 8A, paragraph 8B and
paragraph 8C 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 holders of Notes on or
prior to the date of declaration of such dividend), it being
understood that, unless an Event of Default under clause (i) or clause
(ii) of paragraph 9A 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 (ii) even if at the time of
payment thereof the Company is not in compliance with this clause
(ii)."
3. Section 8 of the Existing Note Purchase Agreement is hereby
amended by the addition on the following Paragraph 8N and Paragraph 8M
immediately following the existing Paragraph 8M:
"8N. Capital Expenditures. The Company will not and will not
permit any Restricted Subsidiary to, make or commit to make any
capital expenditure in any fiscal year of the Company, except capital
expenditures which do not in the aggregate exceed (i) $35,000,000 in
the fiscal year of the Company ended December 31, 2000 and (ii)
$10,000,000 in each fiscal year of the Company thereafter.
8M. Minimum EBITDA.
(a) The Company will not permit EBITDA for the period
January 1. 2001 through any date set forth below to be less than
the amount set forth below opposite such date:
Date EBITDA Amount
March 31, 2001 $1,307,085
April 30, 2001 $2,780,985
May 31, 2001 $6,976,834
June 30, 2001 $11,867,436
July 31, 2001 $15,971,515
August 31, 2001 $20,249,990
September 30, 2001 $24,274,490
October 31, 2001 $27,028,462
November 30, 2001 $28,108,365
December 31, 2001 $28,364,812.
(b) The Company will not permit EBITDA for any period
ending during any fiscal year of the Company ending on or after
December 31, 2002 to be less than the amount equal to 80% of the
amount required by the Bank Credit Agreement for such period
(EBITDA to be determined for such period on the same basis as
EBITDA is determined under the Bank Credit Agreement).
4. The definition of "Remaining Scheduled Payments" in Section 13A
of the Existing Note Purchase Agreement shall be amended and restated
respectively to read as follows:
"Remaining Scheduled Payments" shall mean, with respect to the
Called Principal of any Note, all payments of such Called Principal
and interest thereon (interest thereon being determined assuming for
the purposes of this definition that interest shall accrue from the
Settlement Date at the rate of (x) 10.34% per annum in the case of the
1996 Notes and (y) 10.09% in the case of the 1998 Notes) that would be
due on or after the Settlement Date with respect to such Called
Principal if no payment of such Called Principal were made prior to
its scheduled due date."
5. The definitions of "EBITDA", "Consolidated Capital Expenditures"
and "Consolidated Fixed Charges" in Section 13B of the Existing Note
Purchase Agreement shall be amended and restated respectively to read as
follows:
""EBITDA" means, in respect of any period, Consolidated Net
Income (exclusive of, to the extent deducted in determining such
Consolidated Net Income (and without duplication), income that is both
non-operating and non-recurring) for such period plus to the extent
deducted in the computation of such Consolidated Net Income, each of
the following:
(i) Consolidated Interest Expense,
(ii) taxes imposed on or measured by income or excess
profits of the Company and its Restricted Subsidiaries,
(iii) the amount of all depreciation, amortization and
depletion allowances of the Company and its Restricted
Subsidiaries,
(iv) the amount of any loss realized upon the sale or other
disposition of property of the Company or any Restricted
Subsidiary that is not sold or otherwise disposed of in the
ordinary course of business;
(v) expense that is both non-operating and non-recurring;
and
(vi) 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
Designated Asset Schedule (as defined in the Bank Credit
Agreement (as in effect on the Effective Date)), disposed of by
the Company or any Subsidiary to an unaffiliated third party in
an Asset Sale (as defined herein) 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 holders of
Notes prior to the Effective Date;
but subtracting therefrom, to the extent reflected in the
determination of Consolidated Net Income, any gain realized upon the
sale or other disposition of property of the Company or any Restricted
Subsidiary that is not sold or otherwise disposed of in the ordinary
course of business; provided that for purposes of determining
compliance with paragraph 8C hereof only, EBITDA with respect to any
such period shall be adjusted to include the historical EBITDA of any
Restricted Subsidiary that was acquired (a) during such period, and
(b) if the Calculation Date is the date of any Acquisition Loan, on
the Calculation Date, as if such Restricted Subsidiary had been
acquired on the first day of such period."
"Consolidated Capital Expenditures" means, for any period, all
expenditures which, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the
Company, but excluding (a) payments on the Lohja Note and Investments
in preferred stock issued by Dekalb Stone (to the extent such payments
or Investments constitute capital expenditures) and (b) expenditures
made in connection with the replacement, substitution or restoration
of assets to the extent financed (i) from insurance proceeds (or other
similar recoveries) paid on account of the loss of or damage to the
assets being replaced or restored or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation of the
assets being replaced.
As used in this definition,
"Lohja Note" means the Promissory Note dated July 13, 1994
issued by the Company to the order of Lohja, Inc. in the original
principal amount of Three Million Seven Hundred Fifty-Nine
Thousand Five Hundred Dollars ($3,759,500).
"Consolidated Fixed Charges" means, in respect of any period of
four (4) consecutive fiscal quarters of the Company, the sum of
(i) Consolidated Interest Expense in respect of such
period, plus
(ii) Maintenance Capital Spending made during such period,
plus
(iii) taxes paid in cash by the Company and its
Restricted Subsidiaries (other than taxes that are directly
attributable to Asset Sales) during such period, plus
(iv) all scheduled principal payments due on any
Consolidated Debt during such period, other than any principal
payments to be made as a result of any mandatory reduction of
commitments under the Bank Credit Agreement.
As used in this definition,
"Asset Sale" means the sale, lease, assignment or other
transfer for value by the Company or any Restricted Subsidiary to
any Person (other than the Company or any Restricted Subsidiary)
of any asset or right of the Company or such Restricted
Subsidiary (including any sale or other transfer of stock of any
Restricted Subsidiary, whether by merger, consolidation or
otherwise); for purposes of greater clarity, it is understood
that a sale by the Company or any Restricted Subsidiary of its
own capital stock is not an "Asset Sale" hereunder.
"Maintenance Capital Spending" means, for any period, the
aggregate amount of Consolidated Capital Expenditures for such
period necessary to maintain the then existing properties of the
Company and its Restricted Subsidiaries in good working order and
condition; provided that Maintenance Capital Spending shall not
exceed (1) $17,200,000 for each of the fiscal periods ending
September 30, 2000 and December 31, 2000 and (b) $10,000,000 for
each fiscal period ending during the fiscal year of the Company
ending December 31, 2001.
6. Clause (xi) of the definition of "Restricted Investment" in
Section 13B of the Existing Note Purchase Agreement is amended and restated
respectively to read as follows:
"(xi) Permitted Acquisitions so long as the total
consideration for all 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 fiscal year
of the Company ended December 31, 2001 or (y) $10,000,000 in any
fiscal year of the Company ended thereafter and both before and after
giving effect to such acquisition, the Leverage Ratio (as defined in
paragraph 8C hereof) shall be less than 3.0 to 1.0 on a pro forma
basis."
7. The definitions of "Effective Date", "Interest Rate Change Date"
and "Leverage Ratio" shall be added to Section 13B of the Existing Note
Purchase Agreement in the respective alphabetical order thereof to read as
follows:
""Effective Date" means the "Effective Date" as defined in the
Amendment No. 3 to this Agreement dated as of September 29, 2000.
"Interest Rate Change Date" means the earlier to occur of (a) the
date upon which the Company shall have applied to the prepayment of
the Notes, in accordance with paragraph 6A or paragraph 6B, the sum of
Ten Million Dollars ($10,000,000), together with interest thereon to
the prepayment dates and the Yield-Maintenance Amounts, if any, with
respect to the Notes, and (b) the date the Leverage Ratio is less than
3.0 to 1.0.
"Leverage Ratio" has the meaning assigned to it in paragraph 8C."
8. The Existing Note Purchase Agreement is amended by deleting
therefrom the current forms of Exhibit A1 and Exhibit A2 thereto and
replacing them with Exhibit A3 and Exhibit A4, respectively, attached
hereto. Any reference in the Existing Note Purchase Agreement to the
"10.34% Senior Subordinated Notes Due November 22, 2006" shall be deemed a
reference to the "Senior Subordinated Notes Due November 22, 2006" and any
reference in the Existing Note Purchase Agreement to the "10.09% Senior
Subordinated Notes Due November 22, 2008" shall be deemed a reference to
the "Senior Subordinated Notes Due November 22, 2008"
<PAGE>
EXHIBIT A2
AMENDMENTS TO EXISTING NOTES
1. The 1996 Notes outstanding on the Effective Date of this First
Amendment are hereby, without any further action required on the part of
any other Person, deemed to be automatically amended to conform to and have
the terms provided in Exhibit A3 attached hereto (except that the principal
amount and the payee of each Note shall remain unchanged). Any 1996 Note
issued on or after the Effective Date of this First Amendment shall be in
the form of Exhibit A3 attached hereto.
2. The 1998 Notes outstanding on the Effective Date of this First
Amendment are hereby, without any further action required on the part of
any other Person, deemed to be automatically amended to conform to and have
the terms provided in Exhibit A4 attached hereto (except that the principal
amount and the payee of each Note shall remain unchanged). Any 1998 Note
issued on or after the Effective Date of this First Amendment shall be in
the form of Exhibit A4 attached hereto.
<PAGE>
EXHIBIT A3
FORM OF SENIOR SUBORDINATED NOTE - 1996 NOTE
U.S. AGGREGATES, INC.
Senior Subordinated Note Due November 22, 2006
No. S-___ PPN: [90345@ AA 1]
$_________ [Date]
U.S. AGGREGATES, INC., a Delaware corporation (together with its
successors, the "Company"), for value received, hereby promises to pay to
___________ or registered assigns the principal sum of ____________ DOLLARS
($________), together with all Capitalized Interest Amounts (as hereinafter
defined), or, if less, the unpaid principal amount of this Note, on
November 22, 2006, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid principal balance hereof from
the date of this Note until the principal amount hereof shall become due
and payable, at the rate of (i) at all times prior to but excluding the
Effective Date (as defined in the Note Agreement (as defined below)), ten
and thirty-four one- hundredths percent (10.34%) per annum, (ii) at all
time from and including the Effective Date but prior to the Interest Rate
Change Date (as defined in the Note Agreement), fourteen percent (14%) per
annum and all times from and including the Interest Rate Change Date twelve
percent (12%) per annum, payable quarterly on the twenty-second (22nd) day
of February, May, August and November (each an "Interest Payment Date") in
each year, commencing on the later of February 22, 1997 and the first
Interest Payment Date occurring after the date of this Note, and to pay on
demand interest on any overdue principal (including any overdue
prepayment), any overdue payment of Yield-Maintenance Amount, if any, or
(to the extent permitted by applicable law) any overdue installment of
interest (the due date of such payments to be determined without giving
effect to any grace period) or if an Event of Default under the Note
Agreement shall have occurred and be continuing, at the rate per annum
equal to the lesser of (a) the highest rate allowed by applicable law or
(b) the greater of (i) sixteen percent (16%), or (ii) two percent (2%) over
the rate of interest publicly announced by Morgan Guaranty Trust Company in
New York City from time to time as its prime rate.
If at such time the interest rate in effect under this Note is greater
than twelve percent (12%) per annum, on any Interest Payment Date during
such time, in lieu of making the entire interest payment on this Note in
cash, the Company may:
(a) pay on such Interest Payment Date, in cash, that portion of the
interest accrued on the outstanding principal amount of such Note to such
Interest Payment Date as would have accrued at the rate of twelve percent
(12.00%) per annum; and
(b) both:
(i) pay on such Interest Payment Date, in cash, none, any part
or all of the interest accrued on such principal to such Interest
Payment Date as would have accrued at the rate of two percent (2%)
per annum; and
(ii) add to the outstanding principal amount of such Notes on
such Interest Payment Date the portion of such interest as would have
accrued at the rate of two percent (2%) per annum which is not paid
in cash pursuant to the immediately preceding clause (i) (each such
addition with respect to this Note, a "Capitalized Interest Amount").
Interest shall begin to accrue on each Capitalized Interest Amount
beginning on and including the Interest Payment Date on which such
Capitalized Interest Amount is added to the principal amount of this Note,
and such interest shall accrue and be paid, together with the interest on
the remaining principal amount of this Note, in accordance with this Note.
Notwithstanding anything herein to the contrary, all interest due and
payable on the date that the entire then outstanding principal amount of
this Note becomes due and payable, whether on the maturity date hereof, by
acceleration or otherwise, shall be due and payable in full in cash on such
date. All Capitalized Interest Amounts will for all purposes of this Note
and the Note Agreement constitute outstanding principal on this Note.
Payments of principal, Yield-Maintenance Amount, if any, and interest
shall be made in such coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and
private debts to the registered holder hereof at the address shown in the
register maintained by the Company for such purpose, in the manner provided
in the Note Agreement.
This Note is one of an issue of Senior Subordinated Notes due November
22, 2006 issued in an aggregate principal amount of Thirty Million Dollars
($30,000,000) (which amount may be increased by any Capitalized Interest
Amounts) pursuant to the Amended and Restated Note and Warrant Purchase
Agreement (as amended and as may be further amended from time to time, the
"Note Agreement"), dated as of June 5, 1998, between the Company and The
Prudential Insurance Company of America. Capitalized terms used herein and
not defined herein have the meanings specified in the Note Agreement.
As provided in the Note Agreement, this Note is subject to prepayment,
in whole or from time to time in part, in certain cases without premium and
in other cases with a premium as specified in the Note Agreement.
This Note is a registered note and, as provided in the Note Agreement,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected
by any notice to the contrary.
The obligations evidenced by this Note are subordinated to the Senior
Debt on the terms provided in the Note Agreement and the holder hereof, by
acceptance hereof, agrees to be bound by the subordination provisions in
the Note Agreement.
THIS NOTE IS GIVEN IN SUBSTITUTION AND WITHOUT NOVATION OF A
PROMISSORY NOTE DATED NOVEMBER 21, 1996 AND ISSUED BY U.S. AGGREGATES, INC.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
U.S. AGGREGATES, INC.
By: /s/ Michael J. Stone
Name: Michael J. Stone
Title: Chief Financial Officer,
Treasurer and Secretary
<PAGE>
EXHIBIT A4
FORM OF SENIOR SUBORDINATED NOTE - 1998 NOTE
U.S. AGGREGATES, INC.
Senior Subordinated Note Due November 22, 2008
No. S-___ PPN: [90345@ AB 9]
$_________ [Date]
U.S. AGGREGATES, INC., a Delaware corporation (together with its
successors, the "Company"), for value received, hereby promises to pay to
___________ or registered assigns the principal sum of ____________ DOLLARS
($________), together with all Capitalized Interest Amounts (as hereinafter
defined), or, if less, the unpaid principal amount of this Note, on
November 22, 2008, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) on the unpaid principal balance hereof from
the date of this Note until the principal amount hereof shall become due
and payable, at the rate of (i) at all times prior to but excluding the
Effective Date (as defined in the Note Agreement (as defined below), ten
and nine hundredths percent (10.09%) per annum, (ii) at all time from and
including the Effective Date but prior to the Interest Rate Change Date (as
defined in the Note Agreement), fourteen percent (14%) per annum and all
times from and including the Interest Rate Change Date twelve percent (12%)
per annum, payable quarterly on the twenty-second (22nd) day of February,
May, August and November (each an "Interest Payment Date") in each year,
commencing on the later of August 22, 1998 and the first Interest Payment
Date occurring after the date of this Note, and to pay on demand interest
on any overdue principal (including any overdue prepayment), any overdue
payment of Yield-Maintenance Amount, if any, and (to the extent permitted
by applicable law) any overdue installment of interest (the due date of
such payments to be determined without giving effect to any grace period)
or if an Event of Default under the Note Agreement shall have occurred and
be continuing, at the rate per annum equal to the lesser of (a) the highest
rate allowed by applicable law or (b) the greater of (i) sixteen percent
(16%), or (ii) two percent (2%) over the rate of interest publicly
announced by Morgan Guaranty Trust Company in New York City from time to
time as its prime rate.
If at such time the interest rate in effect under this Note is greater
than twelve percent (12%) per annum, on any Interest Payment Date during
such time, in lieu of making the entire interest payment on this Note in
cash, the Company may:
(c) pay on such Interest Payment Date, in cash, that portion of the
interest accrued on the outstanding principal amount of such Note to such
Interest Payment Date as would have accrued at the rate of twelve percent
(12.00%) per annum; and
(d) both:
(i) pay on such Interest Payment Date, in cash, none, any part
or all of the interest accrued on such principal to such Interest
Payment Date as would have accrued at the rate of two percent (2%)
per annum; and
(ii) add to the outstanding principal amount of such Notes on
such Interest Payment Date the portion of such interest as would have
accrued at the rate of two percent (2%) per annum which is not paid
in cash pursuant to the immediately preceding clause (i) (each such
addition with respect to this Note, a "Capitalized Interest Amount").
Interest shall begin to accrue on each Capitalized Interest Amount
beginning on and including the Interest Payment Date on which such
Capitalized Interest Amount is added to the principal amount of this Note,
and such interest shall accrue and be paid, together with the interest on
the remaining principal amount of this Note, in accordance with this Note.
Notwithstanding anything herein to the contrary, all interest due and
payable on the date that the entire then outstanding principal amount of
this Note becomes due and payable, whether on the maturity date hereof, by
acceleration or otherwise, shall be due and payable in full in cash on such
date. All Capitalized Interest Amounts will for all purposes of this Note
and the Note Agreement referred to below constitute outstanding principal
on this Note.
Payments of principal, Yield-Maintenance Amount, if any, and interest
shall be made in such coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and
private debts to the registered holder hereof at the address shown in the
register maintained by the Company for such purpose, in the manner provided
in the Note Agreement.
This Note is one of an issue of Senior Subordinated Notes due November
22, 2006 issued in an aggregate principal amount of Fifteen Million Dollars
($15,000,000) (which amount may be increased by any Capitalized Interest
Amounts) pursuant to the Amended and Restated Note and Warrant Purchase
Agreement (as amended and as may be further amended from time to time, the
"Note Agreement"), dated as of June 5, 1998, between the Company and The
Prudential Insurance Company of America. Capitalized terms used herein and
not defined herein have the meanings specified in the Note Agreement.
As provided in the Note Agreement, this Note is subject to prepayment,
in whole or from time to time in part, in certain cases without premium and
in other cases with a premium as specified in the Note Agreement.
This Note is a registered note and, as provided in the Note Agreement,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company shall not be affected
by any notice to the contrary.
The obligations evidenced by this Note are subordinated to the Senior
Debt on the terms provided in the Note Agreement and the holder hereof, by
acceptance hereof, agrees to be bound by the subordination provisions in
the Note Agreement.
THIS NOTE IS GIVEN IN SUBSTITUTION AND WITHOUT NOVATION OF A
PROMISSORY NOTE DATED JUNE 5, 1998 AND ISSUED BY U.S. AGGREGATES, INC.
THIS NOTE AND THE NOTE AGREEMENT ARE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK.
U.S. AGGREGATES, INC.
By: /s/ Michael J. Stone
Name: Michael J. Stone
Title: Chief Financial Officer,
Treasurer and Secretary
<PAGE>
EXHIBIT B
[FORM OF GUARANTOR CONSENT]
Reference is made to that certain Amended and Restated Note and
Warrant Purchase Agreement, dated as of June 5, 1998 (the "Note Purchase
Agreement"), between U.S. Aggregates, Inc. (the "Company") and The
Prudential Insurance Company of America (the "Noteholder"), pursuant to
which $30,000,000 principal amount of 10.34% Senior Subordinated Notes due
November 22, 2006 and $15,000,000 principal amount of 10.09% Senior
Subordinated Notes due November 22, 2008 (the "Notes") of the Company have
been issued to the Noteholder and are currently outstanding. Capitalized
terms used herein and defined in the Note Purchase Agreement are used
herein with the meanings ascribed to them in the Note Purchase Agreement.
The Note Purchase Agreement was amended pursuant to the terms of (i) an
Amendment No. 1 to the Amended and Restated Note and Warrant Purchase
Agreement dated as of April 14, 1999 and (ii) an Amendment No. 2 to the
Amended and Restated Note and Warrant Purchase Agreement dated as of August
12, 1999 (as in effect immediately prior to giving effect to the amendments
provided for in Amendment No. 3 to the Amended and Restated Note and
Warrant Purchase Agreement, the "Existing Note Purchase Agreement" and, as
amended pursuant to Amendment No. 3 to the Amended and Restated Note and
Warrant Purchase Agreement and as may be further amended, restated or
otherwise modified from time to time, the "Amended Note Purchase
Agreement"). The Existing Note Purchase Agreement and the Notes are being
amended pursuant to the terms of Amendment No. 3 to the Note Purchase
Agreement dated as of September 29, 2000 (the "Third Amendment Agreement").
Each of the undersigned Restricted Subsidiaries (each, a "Guarantor")
is a party to the Subsidiary Guaranty entered into in connection with the
execution and delivery of the Note Purchase Agreement and the issuance and
sale of the Notes. Each Guarantor hereby consents to the Third Amendment
Agreement and acknowledges and affirms all of its obligations under the
terms of the Subsidiary Guaranty.
Dated: As of September 29, 2000
[Remainder of page intentionally left blank. Next page is signature page.]
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guarantor Consent
to be executed on its behalf, as of the date first above written, by one of
its duly authorized officers.
SRM HOLDINGS CORP.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
SOUTHERN READY MIX, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
WESTERN AGGREGATES
HOLDING CORP.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
WESTERN ROCK PRODUCTS
CORPORATION
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
COX ROCK PRODUCTS,
INCORPORATED
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
COX TRANSPORT CORPORATION
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
JENSEN CONSTRUCTION &
DEVELOPMENT, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
SANDIA CONSTRUCTION, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
SOUTHERN NEVADA
AGGREGATES, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
MOHAVE CONCRETE AND
MATERIALS, INC. (NEVADA)
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
MOHAVE CONCRETE AND
MATERIALS, INC. (ARIZONA)
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
A-BLOCK COMPANY, INC.
(ARIZONA)
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
A-BLOCK COMPANY, INC.
(CALIFORNIA)
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
VALLEY ASPHALT, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
DEKALB STONE, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
GEODYNE TRANSPORT, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
FALCON RIDGE CONSTRUCTION,
INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
BECK PAVING, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
MULBERRY ROCK CORPORATION
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
BHY READY MIX, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
BRADLEY STONE & SAND, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
TRI-STATE TESTING
LABORATORIES, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
BIG HORN REDI MIX, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
TREASURE VALLEY CONCRETE,
INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
MONROC, INC.
By /s/ Theresa Pajes
Name: Theresa Pajes
Title: Assistant Treasurer
<PAGE>
EXHIBIT C
[COPY OF EXECUTED FOURTH BANK AMENDMENT]
