EXHIBIT 4.1(vii)
SIXTH AMENDMENT
THIS SIXTH AMENDMENT dated as of April 18, 2001 (this "Amendment") is to
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the Third Amended and Restated Credit Agreement (as amended, the "Credit
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Agreement") dated as of June 5, 1998 among U.S. AGGREGATES, INC., a Delaware
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corporation (the "Company"), various financial institutions (the "Lenders") and
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BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"). Unless otherwise
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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:
1 SECTION AMENDMENTS. Effective on (and subject to the occurrence
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of) the Sixth Amendment Effective Date (as defined below):
1.1 Section 1.1 of the Credit Agreement shall be amended by inserting
the following definitions, each in its appropriate alphabetical position:
Borrowing Base means, as of any date of calculation, an amount, as set
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forth on the most current Borrowing Base Certificate delivered to the Agent, for
the Company and its Subsidiaries equal to (i) 75% of the Gross Amount of
Receivables (provided that during the first Fiscal Quarter of 2002, such
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percentage shall be 80%) plus (ii) 50% of the Gross Amount of Inventory owned by
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the Company and its Subsidiaries (provided that during the first Fiscal Quarter
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of 2002, such percentage shall be 55%).
Borrowing Base Certificate means a certificate, in substantially the form
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of Exhibit R attached hereto and made a part hereof, setting forth the Borrowing
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Base and the component calculations thereof.
Borrowing Base Shortfall means, at any time, the amount by which the
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Revolving Outstandings exceed the Revolving Commitment Amount at such time.
Capitalized Interest - see Section 4.2.
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Cash Collateralize means to deliver cash collateral to the Agent, to be
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held as cash collateral for outstanding Letters of Credit, pursuant to
documentation satisfactory to the Agent. Derivatives of such term have
corresponding meanings.
Gross Amount of Inventory means Inventory of the Company and its
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Subsidiaries, valued at the lower of cost determined on an average manufacturing
cost basis (determined in accordance with GAAP) or market value.
Gross Amount of Receivables means the outstanding face amount of
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Receivables of the Company and its Subsidiaries, determined in accordance with
GAAP.
Inventory shall mean any and all goods, including, without limitation,
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goods in transit, wheresoever located, whether now owned or hereafter acquired
by the Company or any of its Subsidiaries, which are held for sale or lease,
furnished under any contract of service or held as raw materials, work in
process or supplies, and all materials used or consumed in the business of the
Company or any of its Subsidiaries, and shall include all right, title and
interest of the Company or any of its Subsidiaries in any property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Company or any of its
Subsidiaries.
Receivables means and includes all of the Company's and its Subsidiaries'
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presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of the Company and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper unless the same are
delivered to the Agent), whether or not they have been earned by performance,
and all rights in any merchandise or goods which any of the same may represent,
and all rights, title, security and guaranties with respect to each of the
foregoing, including, without limitation, any right of stoppage in transit.
Revolving Outstandings means, at any time, the sum of (a) the aggregate
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principal amount of all outstanding Revolving Loans plus (b) the Stated Amount
of all Letters of Credit.
Sixth Amendment Effective Date means the "Sixth Amendment Effective
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Date" as defined in the Sixth Amendment to this Agreement dated as of
April 18, 2001.
2001 Subordinated Note means the $900,000 16% Senior Subordinated Note of
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the Company due 2002 issued pursuant to the Note and Warrant Purchase Agreement.
1.2 The following definitions in Section 1.1 of the Credit Agreement
shall be amended and restated in their entireties to read as follows:
Applicable ABR Margin means 5.00% per annum.
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Applicable Eurodollar Margin means 6.00% per annum.
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EBITDA means, for any period, Consolidated Net Income of the Company for
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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 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, non-cash
restructuring charges incurred in connection with business closures and asset
dispositions.
Non-Use Fee Rate means 0.50% per annum.
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Subordinated Debt means (1)(a) the Debt evidenced by the Lohja Note, the
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▇▇▇▇▇▇ Notes, the ▇▇▇▇▇▇ Note, the Cox Notes and the ▇▇▇▇▇ Notes and (b) any
other Debt of the Company having payment schedules and other terms, and which is
subordinated to the obligations of the Company hereunder in a manner,
satisfactory to the Agent, (2) the 1996 Subordinated Notes, the 1998
Subordinated Notes and the 2001 Subordinated Note and (3) Subordinated
Acquisition Debt.
1.3 Section 2.1.1 of the Credit Agreement shall be amended and restated
to read in its entirety as follows:
2.1.1 Revolving Loan Commitment.
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(a) Each Revolving Lender will make loans to the Company on a
revolving basis ("Revolving Loans"), from time to time until the Revolving
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Termination Date in such Revolving Lender's Revolving Loan Percentage of such
aggregate amounts as the Company may request from all Revolving Lenders under
the Revolving Commitments and (b) the Issuing Lender agrees to issue standby
letters of credit, in each case containing such terms and conditions as are
permitted by this Agreement and are reasonably satisfactory to the Issuing
Lender (each a "Letter of Credit"), at the request of and for the account of the
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Company from time to time before the Revolving Termination Date and, as more
fully set forth in Section 2.6, each Revolving Lender agrees to purchase a
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participation in each such Letter of Credit; provided that (i) the Revolving
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Outstandings will not at any time exceed the lesser of (x) $35,000,000 and (y)
the Borrowing Base and (ii) the aggregate Stated Amount of all Letters of Credit
shall not at any time exceed $7,500,000. Upon the Sixth Amendment Effective
Date, a portion of each Revolving Lender's Revolving Loans shall be
automatically converted to a Term A Loan hereunder in an amount equal to such
Revolving Lender's Revolving Loan Percentage of $47,083,109.39, and the
Revolving Commitments shall be permanently reduced by the amount of Revolving
Loans so converted.
1.4 Section 3.1 of the Credit Agreement shall be amended by (i)
amending and restating clause (b) thereof in its entirety as follows
(b) each Term A Loan of such Lender shall be paid in installments, on
the last Business Day of each calendar quarter and on April 15, 2002, with each
such installment to be in such Lender's Term A Loan Percentage of the aggregate
amount of the Term A Loans payable on such date set forth below opposite (x)
April 15, 2002, with respect to the payment due on such date and (y) in the case
of all other payments, the period in which the last date of each such calendar
quarter occurs:
Amount of
Period Term A Loans Payable
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6/30/01-12/31/01 $0.00
3/31/02 $1,987,247.22
April 15, 2002 $5,961,741.66
6/30/02-3/31/03 $2,203,871.99
6/30-03-12/31/03 $2,637,121.53
3/31/04 $49,720,230.96;
and (ii) adding the following clause (d) thereto
(d) In addition to the foregoing, on March 31, 2002, the Company shall pay
all Capitalized Interest on the Loans and all accrued but unpaid interest on
such Capitalized Interest, provided that if all Loans and other obligations
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hereunder shall have been paid in full in cash, and the Commitments terminated,
on or prior to such date (but only in such event), the Company need only pay to
the Lenders 50% of such amount and the Lenders will be deemed to have forgiven
on such date the remaining 50% of such Capitalized Interest.
1.5 Section 4.2 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
4.2 Interest Payment Dates; Capitalization of Interest
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Accrued interest on each ABR Loan shall be
payable on the last Business Day of each calendar month and at maturity,
commencing with the first of such dates to occur after the date of such Loan.
Accrued interest on each Eurodollar Loan shall be payable on the last day of
each Interest Period relating to such Loan and at maturity. After maturity,
accrued interest on all Loans shall be payable on demand. During the period
from the Sixth Amendment Effective Date through and including March 31, 2002,
all interest due on the Loans payable at any time at a rate in excess of (x) in
the case of ABR Loans, the Alternate Base Rate plus 3.00% per annum and (y) in
the case of Eurodollar Loans, the Eurodollar Rate (Reserve Adjusted) plus 4.00%
per annum shall be capitalized and added to the unpaid principal amount thereof
on the date such payment is due (all such capitalized interest, "Capitalized
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Interest"). Capitalized Interest shall be earned and become a binding
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obligation of the Company as it accrues.
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1.6 Section 4.3 of the Credit Agreement shall be amended by deleting
the language "one, two, three or six months" where they appear and inserting in
lieu thereof the words "one month."
1.7 Section 5 of the Credit Agreement shall be amended by adding the
following Section 5.5 thereto:
5.5 Refinancing Fee. The Company hereby, and as of the Sixth Amendment
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Effective Date, shall be obligated to pay to the Lenders a fee of $1,250,000 to
be allocated ratably among the Lenders in accordance with their Total
Percentages. Consistent with, but not in limitation of, the foregoing, such fee
is fully earned on the Sixth Amendment Effective Date, but shall be payable on
March 31, 2002; provided, however, that (x) if the Loans and other obligations
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under the Credit Agreement have been paid in full in cash and all Commitments of
the Lenders under the Credit Agreement have terminated on or prior to March 31,
2002 (but only in such event), such fee shall be forgiven entirely and thus,
shall no longer be due and owing and (y) if the Company has a binding commitment
in place as of March 31, 2002 to refinance in full the Loans and other
obligations under the Loan Documents by June 30, 2002, then the Company shall
pay the entire fee to the Agent on or before March 31, 2002, with the Agent to
distribute $750,000 of such fee ratably to the Lenders on March 31, 2002 and to
place the remaining $500,000 of such fee in escrow on such date. Such $500,000
balance shall be returned to the Company on the date on which such refinancing
(and the concomitant payment in full of the Loans and other obligations under
the Credit Agreement) occurs so long as such payment in full in cash occurs on
or before June 30, 2002 (it being understood that if such payment does not occur
by such date, such escrowed amount shall be released from escrow and paid to the
Lenders).
1.8 Section 6.1.1 of the Credit Agreement shall be amended by amending
clauses (b) and (c) thereof in their entireties to read as follows:
(b) [intentionally left blank].
(c) [intentionally left blank].
1.9 Section 6.2.1(a) of the Credit Agreement shall be amended by (i)
deleting clause (iv) of such Section and inserting the following in lieu thereof
(iv) Concurrently with the receipt of any Net Cash Proceeds from any
issuance of equity securities of the Company or any Subsidiary (including a
Public Offering, but excluding (w) any infusion of equity capital in an amount
not exceeding $2,000,000 into the Company by GTCR or its Affiliates to satisfy
the condition subsequent set forth in Section 5.9 of the Sixth Amendment to this
Agreement dated as of April 18, 2001, (x) any issuance of shares of capital
stock pursuant to any employee or director stock option program, benefit plan or
compensation program, (y) equity contributions from GTCR or its Affiliates to
fund Permitted Acquisitions or to fund payments required by the ▇▇▇▇▇▇ Note
Documents and (z) any issuance of capital stock by a Subsidiary to the Company
or another Subsidiary), in an amount equal to (1) such Net Cash Proceeds times
(2) 0.50.
and (ii) deleting the last three sentences of such section and inserting the
following paragraph in lieu thereof
All Designated Proceeds of Mandatory Prepayment Events shall be applied to
the Loans as follows: (1) effective the Sixth Amendment Effective Date, as to
any Designated Proceeds of any Mandatory Prepayment Event described in clause
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(i), (ii) or (iii) above, pro rata to the Term A Loans, Term B Loans and
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Revolving Loans (without any reduction in the Revolving Commitments), with
application to the remaining installments of each of the Term A Loans and Term B
Loans on a pro rata basis (provided that, for the period from and after the
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Sixth Amendment Effective Date, no more than $10,700,000 of such Designated
Proceeds may be applied to the Revolving Loans, and any Designated Proceeds
that would, but for this proviso, be applied to the Revolving Loans shall be
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instead applied pro rata to the Term A Loans and Term B Loans) and (2) in the
case of all other Designated Proceeds, to the prepayment of the Term Loans pro
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rata among the Term A Loans and Term B Loans, with application to the remaining
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installments of each on a pro rata basis; provided that, in the case of any
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Mandatory Prepayment Event described in clause (i), (ii) or (iii) above, the
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Designated Proceeds of such Mandatory Prepayment Event shall be applied first to
prepay the Revolving Loans and/or Cash Collateralize the outstanding Letters of
Credit to the extent necessary to eliminate any Borrowing Base Shortfall caused
by such Mandatory Prepayment Event (and, after such application, the remaining
Designated Proceeds shall be applied as set forth in clause (1) of this
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sentence).
1.10 Section 6.2.1 of the Credit Agreement shall be amended by
deleting clause (b) of such Section and inserting the following in lieu thereof:
(b) If on any day the Revolving Outstandings exceed the Borrowing Base,
the Company shall immediately prepay Revolving Loans and/or Cash Collateralize
the outstanding Letters of Credit, or do a combination of the foregoing, in an
amount sufficient to eliminate such excess.
(c) If on any day on which the Revolving Commitments are reduced
pursuant to Section 6.1.2 any Borrowing Base Shortfall exists, the Company shall
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immediately prepay Revolving Loans or Cash Collateralize the outstanding Letters
of Credit, or do a combination of the foregoing, in an amount sufficient to
eliminate such Borrowing Base Shortfall.
1.11 Section 9.22 of the Credit Agreement shall be amended by deleting
the words "the 1996 Subordinated Notes and the 1998 Subordinated Notes" in each
place they appear in such Section and inserting in lieu thereof the words "the
1996 Subordinated Notes, the 1998 Subordinated Notes and the 2001 Subordinated
Note."
1.12 Section 10.1 of the Credit Agreement shall be amended by (i)
amending and restating Section 10.1.13 thereof to read in its entirety as
follows
10.1.13 Cash Flow Forecasts. As soon as practicable and in any event
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within five Business Days following the end of each week, (i) a rolling
twenty-six week cash flow forecast for each of (a) the Company and its
Subsidiaries, (b) Western Aggregates Holding Company and its Subsidiaries and
(c) SRM Aggregates, Inc. and its Subsidiaries, in each case on a consolidated
basis in reasonable detail (setting out the first thirteen weeks of such
forecast in weekly detail and the second thirteen weeks of such forecast in
monthly detail) and (ii) a report comparing the actual cash flow of each of (a)
the Company and its Subsidiaries, (b) Western Aggregates Holding Company and its
Subsidiaries and (c) SRM Aggregates, Inc. and its Subsidiaries, in each case for
such week on a consolidated basis to the cash flow forecast for such week
delivered to the Agent pursuant to clause (i) of this Section 10.1.13, together
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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.
and (ii) adding the following as Sections 10.1.14 and 10.1.15
10.1.14 Borrowing Base Certificates.
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Within ten Business Days of the end of each month, a Borrowing
Base Certificate dated as of the end of such month and executed by the Chief
Financial Officer of the Company on behalf of the Company (provided that, at any
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time an Event of Default exists, the Agent may require the Company to deliver
Borrowing Base Certificates more frequently).
10.1.15 Revised Budget/Plan. Not later
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than 60 days after the Sixth Amendment Effective Date, a revised cash budget, in
form and substance satisfactory to the Agent, for the business operation of the
Company for the period from the Sixth Amendment Effective Date through March 31,
2002 prepared by (or by the Company with assistance from) E&Y Capital Advisors,
L.L.C.; and participate in a conference call with the Lenders and the Agent at
least once every two weeks after the Sixth Amendment Effective Date to discuss
the operational results of the Company and its Subsidiaries and the Company's
cash budget.
1.13 Section 10.6 of the Credit Agreement shall be amended to read in
its entirety as follows:
10.6.1 Interest Coverage Ratio. Not permit the Interest Coverage Ratio
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for any Computation Period (commencing with the Computation Period ending June
30, 2002) to be less than 3.00:1.
10.6.2 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage
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Ratio as of the last day of any Computation Period (commencing with the
Computation Period ending June 30, 2002) to be less than 1.10:1.
10.6.3 Leverage Ratio. Not permit the Leverage Ratio as of the last day
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of any Computation Period (commencing with the Computation Period ending June
30, 2002) to be greater than 3.00:1.
10.6.4 Minimum EBITDA. Not permit EBITDA for the period from April 1, 2001
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through any date set forth below to be less than the amount set forth below
opposite such date:
Date Amount
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June 30, 2001 $5,500,000
September 30, 2001 $12,500,000
December 31, 2001 $15,500,000
March 30, 2002 $16,500,000.
1.14 Section 10.8 of the Credit Agreement shall be amended by (i)
deleting the words "the 1996 Subordinated Notes and the 1998 Subordinated Notes"
where they appear in clause (v) of such Section and inserting in lieu thereof
the words "the 1996 Subordinated Notes, the 1998 Subordinated Notes and the 2001
Subordinated Note", (ii) deleting the word "and" where it appears immediately
prior to clause romanette (x) thereof and (iii) inserting the following at the
end of such Section "; and (xi) Subordinated Debt owing by the Company to GTCR."
1.15 Section 10.11 of the Credit Agreement shall be amended by (i)
deleting the words "and interest" where they appear in clause (vi) of such
Section, (ii) deleting the words "and may make scheduled payments of interest
on the 1998 Subordinated Notes subject to the subordination provisions governing
such Subordinated Debt" where they appear in clause (vi) of such Section and
(iii) adding the following as the second paragraph of such Section:
Furthermore, (x) during the period from the Sixth Amendment Effective Date
through and including the first anniversary thereof, the Company may not make
cash interest payments on the 1996 Subordinated Notes, the 1998 Subordinated
Notes or the 2001 Subordinated Note and (y) from and after the first anniversary
of the Sixth Amendment Effective Date, the Company may not make cash interest
payments on the 1996 Subordinated Notes, the 1998 Subordinated Notes or the 2001
Subordinated Note in excess of 14% per annum on the outstanding principal amount
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thereof (as compounded from time to time pursuant to the 1996 Subordinated
Notes, the 1998 Subordinated Notes and the 2001 Subordinated Note, respectively,
as in effect on the date hereof); provided that the Company may not make any
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payment of interest on the 1996 Subordinated Notes, the 1998 Subordinated Notes
or the 2001 Subordinated Note in contravention of the subordination provisions
governing such notes.
1.16 Section 10.12 of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
10.12 Capital Expenditures, etc. Not, and not permit any Subsidiary to,
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make or commit to make any Capital Expenditure in any Fiscal Year, except
Capital Expenditures which do not in the aggregate exceed the Maximum Capital
Expenditure Amount. For purposes of this Section, "Maximum Capital Expenditure
Amount" means (x) with respect to Fiscal Year 2001, $15,000,000 (less amounts
attributable to assets sold or disposed of by the Company and its Subsidiaries
as shown on the Capital Expenditure Schedule delivered to the Agent and the
Lenders by the Company prior to the Sixth Amendment Effective Date) and (y) with
respect to any succeeding Fiscal Year, $10,000,000.
1.17 Section 10 of the Credit Agreement shall be amended by (i)
redesignating the Section 10.29 added in the Fifth Amendment to the Credit
Agreement as Section 10.30 and (ii) adding the following Section 10.31:
10.31 Blocked Accounts. Not later than 45 days after the
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Sixth Amendment Effective Date, the Company shall, and shall cause each
Subsidiary to, put in place blocked account agreements, in form and substance
satisfactory to the Agent, with respect to all cash receiving and disbursement
accounts of the Company and its Subsidiaries, whereby the Agent is granted a
Lien in such accounts and all cash and other items therein.
1.18 Section 12.1.5 of the Credit Agreement shall be amended and
restated to read in its entirety as follows:
12.1.5 Non-Compliance with Provisions of this Agreement. Failure by the
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Company to comply with or to perform any covenant set forth in Section
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10.1.5(a), 10.2(b), 10.5, 10.6.1, 10.6.2, 10.6.3, 10.6.4, 10.7, 10.9, 10.11,
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10.12, 10.14, 10.18 through 10.23, 10.27, 10.29, 10.30 or 10.31; failure by the
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Company to comply with or to perform any covenant set forth in Section 10.8,
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10.10, 10.13, 10.25 or 10.26 and continuance of such failure for 10 days; or
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failure by the Company to comply with or to perform any other provision of this
Agreement (and not constituting an Event of Default under any of the other
provisions of this Section 12) and continuance of such failure for 30 days.
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1.19 Exhibit R hereto shall be added to the Credit Agreement as Exhibit
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R thereto.
1.20 Schedule 1.1A to the Credit Agreement is hereby deleted.
SECTION 2 WAIVERS. Effective on (and subject to the occurrence of) the
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Sixth Amendment Effective Date, the Required Lenders hereby waive any Event of
Default caused by the Company's noncompliance with Sections 10.6.1, 10.6.2 and
10.6.3 of the Credit Agreement, in each case for the Fiscal Quarter ended
December 31, 2000, Section 10.6.4 of the Credit Agreement for any period prior
to the date hereof, Section 10.1.2(i) of the Credit Agreement with respect to
the months of December 2000 and January 2001, Section 10.29(a) of the Credit
Agreement for any period prior to the date hereof, Section 10.1.2(ii) with
respect to the Fiscal Quarter ended December 31, 2000 and Section 10.1.13 for
the weeks ended March 11, 2001 and March 18, 2001.
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Company represents and
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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 Sixth Amendment Effective Date
with the same effect as if made on and as of the Sixth 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) except as waived hereby, 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)
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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; (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; (f) 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; and (g) set forth on Schedule I hereto is a complete and accurate
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list, as of the Sixth Amendment Effective Date, of the correct legal name and
the jurisdiction of organization of each Subsidiary.
SECTION 4 EFFECTIVENESS. The amendments set forth in Section 1 above and
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the waivers set forth in Section 2 above shall become effective as of the date
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hereof on such date (the "Sixth Amendment Effective Date") when the Agent shall
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have received (a) a counterpart of this Amendment executed by the Company, the
Required Revolving Lenders, the Required Term A Lenders and the Required Term B
Lenders and Lenders holding a Total Percentage of at least 66-2/3% (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), (b) for the account of each Lender that has executed and
delivered a counterpart hereof to counsel for the Agent by 5:00 p.m. (Chicago
time) on April 18, 2001, an amendment fee in an amount equal to 0.25% of such
Lender's Revolving Commitment plus the Term Loans of such Lender outstanding on
the Sixth Amendment Effective Date, (c) evidence satisfactory to the Agent that
the Note and Warrant Purchase Agreement shall have been amended in form and
substance satisfactory to the Agent and that all events of default thereunder
shall have been waived and that the holders of the 1996 Subordinated Notes and
the 1998 Subordinated Notes have agreed to defer the payment of cash interest
for the period from the Sixth Amendment Effective Date to the first anniversary
of the Sixth Amendment Effective Date, (d) evidence satisfactory to the Agent
that (x) GTCR shall have submitted a capital call to its investors requiring
such investors to provide not less than $2,000,000 to GTCR and (y) GTCR shall
have committed to have invested the proceeds of such capital call in the Company
in the form of equity or Subordinated Debt not later than 10 days after the
Sixth Amendment Effective Date and (e) each of the following documents, each in
form and substance satisfactory to the Agent:
4.1 Reaffirmation. Counterparts of the Reaffirmation of Loan
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Documents, substantially in the form of Exhibit A, executed by the Company, each
Guarantor and each Pledgor.
4.2 Resolutions. Certified copies of
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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.
4.3 Incumbency and Signature Certificates.
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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.
4.4 Perfection Certificate, etc. A Perfection Certificate in the form
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of Exhibit B from the Company and each Subsidiary, and each of the Company and
each Subsidiary shall have taken all steps (including the execution of financing
statements and the payment of all recording taxes) requested by the Agent to
perfect its Liens on the collateral of the Company and its Subsidiaries.
4.5 Financial Information. The information required by Section
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10.1.2(ii) with respect to the Fiscal Quarter ended December 31, 2000.
4.6 Borrowing Base Certificate. A Borrowing Base Certificate (as of
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March 31, 2001) in the form of Exhibit R hereto dated as of the Sixth Amendment
Effective Date.
4.7 Other Documents. Such other documents as the Agent or any Lender
---------------
may reasonably request.
SECTION 5 MISCELLANEOUS.
-------------
5.1 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 Sixth 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. The waivers contained in Section 2 hereof are limited
---------
strictly to their terms and shall not apply to non-compliance with any other
term of any Loan Document.
5.2 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.
5.3 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. ("PwC"), which shall continue to be retained as
---
financial advisor to the Agent) in connection with the preparation, execution
and delivery of this Amendment and the ongoing work being done by PwC in
connection with the workout of the Company's Debt.
5.4 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.
5.5 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.
5.6 Fees. The fees referred to in Section 4(b) hereof are not subject
---- ------------
to Section 7.5 of the Credit Agreement.
5.7 Termination of Fee Letter Obligation. Effective the Sixth
------------------------------------
Amendment Effective Date, the Agent and the undersigned Lenders agree that the
obligation of the Company to pay the fees specified in the third paragraph of
the November 13, 2000 letter agreement between the Company and the Agent is
hereby terminated.
5.8 Reporting. The Company shall deliver to the Agent and the Lenders
---------
the Company's audited financial statements for the 2000 Fiscal Year on the date
such financial statements are delivered to or filed with the SEC, but in any
event, no later than 30 days after the Sixth Amendment Effective Date.
5.9 Condition Subsequent. It shall be an Event of Default, and this
--------------------
Amendment shall be retroactively ineffective to the date hereof, if the Company
shall not have received, within 10 days of the Sixth Amendment Effective Date,
Net Cash Proceeds of not less than $2,000,000 of an investment of equity capital
or Subordinated Debt, in either case in form and substance satisfactory to the
Agent, from GTCR or its Affiliates.
5.10 Loan Document. This Amendment is a Loan Document.
-------------
5.11 Consent. Effective the Sixth Amendment Effective Date, the
-------
undersigned Lenders consent to the issuance of the 2001 Subordinated Note (as
defined in the Amended Credit Agreement) and to Amendment No. 4 to the Note and
Warrant Purchase Agreement, dated as of the date hereof, between the Company and
The Prudential Insurance Company of America.
SECTION 6 RELEASE OF CLAIMS. THE COMPANY HEREBY ACKNOWLEDGES AND AGREES
-----------------
THAT IT DOES NOT HAVE ANY DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM
OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR
ELIMINATE ALL OR ANY PART OF LIABILITY OF THE COMPANY TO REPAY THE AGENT OR ANY
LENDER AS PROVIDED IN THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS OR TO
SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM THE AGENT OR ANY
LENDER. THE COMPANY HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENT AND THE LENDERS, AND THE AGENT'S AND EACH LENDER'S
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE
CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS OR EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY,
ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH THE MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR ANY SUCH
LENDER, AND THE AGENT'S OR SUCH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATION OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE
CREDIT AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION AND EXECUTION OF THIS
AMENDMENT.
Delivered as of the day and year first above written.
U.S. AGGREGATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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: Vice President
BANK OF SCOTLAND, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
IBJ WHITEHALL BANK AND TRUST
COMPANY, as a Lender
By: Illegible
Title: Director
COMERICA BANK - CALIFORNIA, as a Lender
By:
Title:
ZIONS FIRST NATIONAL BANK, as a Lender
By: Illegible
Title: Illegible
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
PILGRIM PRIME RATE TRUST, as a Lender
By: Pilgrim Investments, Inc., as its Investment Manager
By: Illegible
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment Advisor
By:
Title:
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By:
Title:
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment Advisor
By:
Title:
KZH-HIGHLAND - 2 LLC
By: Illegible
Title: Authorized Agent
ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors, LLC, as Collateral Manager
By: Illegible
Title: Managing Director
ARCHIMEDES FUNDING III, LLC
By: ING Capital Advisors, LLC, as Collateral Manager
By: Illegible
Title: Managing Director
SEQUILS-ING 1 (HBDGM), LTD.
By: ING Capital Advisors, LLC, as Collateral Manager
By: Illegible
Title: Managing Director
BANK ONE, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
BRANCH BANKING AND TRUST COMPANY
By: Illegible
Title: Vice President
EXHIBIT A
FORM OF REAFFIRMATION
OF LOAN DOCUMENTS
-----------------
as of April 18, 2001
Bank of America, N.A., as Agent
and the other parties to the Third
Amended and Restated Credit
Agreement referred to below
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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, ▇▇▇ Rock Products Inc., a Utah corporation, Cox Transport
Corporation, a Utah corporation, SRM Holdings Corp., a Delaware corporation, SRM
Aggregates, 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 ▇▇▇▇ 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Sand,
Inc., a Tennessee corporation, Monroc, Inc., a Delaware corporation, Western
Aggregates, Inc., a Utah corporation, Eagle Valley Materials, Inc., Nevada
Aggregates, Inc., Bama Crushed Corporation, Grove Materials 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, ▇▇▇▇▇▇ Construction and Development, Inc.,
Sandia Construction, Inc., ▇▇▇ Rock Products Inc., Cox Transport Corporation,
SRM Holdings Corp., SRM Aggregates, 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
▇▇▇▇ Rock Products, Inc., Western Rock Products Corp., Tri-State Testing
Laboratories, Inc., Dekalb Stone, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Sand, Inc., Monroc,
Inc., Eagle Valley Materials, Inc., Nevada Aggregates, Inc., Bama Crushed
Corporation, Grove Materials Corporation;
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 ▇▇▇ 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 Sixth 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, (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 and (iii) VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES THE AGENT AND THE LENDERS, AND THE AGENT'S AND LENDER'S PREDECESSORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, OR EXPENSES, AND LIABILITIES
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THE FOREGOING AMENDMENT IS EXECUTED,
WHICH IT MAY NOW OR HEREAFTER HAVE AGAINST THE AGENT OR ANY SUCH LENDER, AND THE
AGENT'S OR SUCH LENDER'S PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF
CONTRACT, TORT, VIOLATION OF LAW OR REGULATION, OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE CREDIT AGREEMENT OR
ANY OTHER DOCUMENT, AND NEGOTIATION AND EXECUTION OF THE FOREGOING 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:_______________________________
Title:____________________________
SRM HOLDINGS CORP.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES HOLDING CORP.
By:________________________________
Title:_____________________________
WESTERN ROCK PRODUCTS CORP.
By:________________________________
Title:_____________________________
▇▇▇▇▇▇ 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:_____________________________
▇▇▇ ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
COX TRANSPORT CORPORATION
By:________________________________
Title:_____________________________
VALLEY ASPHALT, INC.
By:________________________________
Title:_____________________________
GEODYNE ▇▇▇▇ ROCK PRODUCTS, INC.
By:________________________________
Title:_____________________________
SRM AGGREGATES, INC.
By:________________________________
Title:_____________________________
DEKALB STONE, INC.
By:________________________________
Title:_____________________________
MULBERRY ROCK CORPORATION
By:________________________________
Title:_____________________________
BHY READY MIX, INC.
By:________________________________
Title:_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ & SAND, INC.
By:________________________________
Title:_____________________________
MONROC, INC.
By:________________________________
Title:_____________________________
WESTERN AGGREGATES, INC.
By:________________________________
Title:_____________________________
EAGLE VALLEY MATERIALS, INC.
By:________________________________
Title:________________________
NEVADA AGGREGATES, INC.
By:________________________________
Title:_____________________________
BAMA CRUSHED CORPORATION
By:________________________________
Title:__________________________
GROVE MATERIALS CORPORATION
By:________________________________
Title:_____________________________
______
ACKNOWLEDGED AND AGREED
as of the date first written above
BANK OF AMERICA, N.A., as Agent
By:________________________________
Title:_______________________________
EXHIBIT B
PERFECTION CERTIFICATE
The undersigned, an authorized officer of [Entity's Name] (the "Debtor"),
on behalf of the Debtor in connection with the Third Amended and Restated Credit
Agreement (as amended, the "Credit Agreement") dated as of June 5, 1998 among
U.S. Aggregates, Inc., Bank of America, N.A., as Agent, and the Lenders named
therein, hereby certifies as follows:
1. Corporate Information:
---------------------
a. The Debtor's true and correct legal name is:
b. The Debtor is organized under the laws of the State of:
c. The Debtor's federal tax identification number is:
2. Addresses and Places of Business:
--------------------------------
a. The Debtor has the following "places of business" (within the
meaning of sections 9-103(3)(d) and 9-401(1) of the Uniform Commercial Code in
effect in the State of Illinois (the "UCC")):
b. The Debtor's "chief executive office" (within the meaning of UCC
9-103(3)(d)) is, and at all times in the last four months, has been:
c. Within the last four months, the Debtor previously had places of
business at the following addresses or in the following counties:
3. Location of Goods and Tangible Property:
---------------------------------------
a. The following is a complete list of all addresses or counties (not
already listed in item 2 above) in which the Debtor keeps any goods or other
tangible property.
b. None of the Debtor's goods or other tangible property (other than
"mobile goods" within the meaning of UCC 9-103(3) or inventory in transit) has,
during the four months preceding the date hereof, been located at any place
other than the addresses listed in Items 2 and 3(a) above, except:
4. Names:
-----
a. The Debtor has not, during the last four months, had any other legal
name or been the subject of any merger or other corporate reorganization,
except:
b. The Debtor has not, during the four months preceding the date
hereof, used or been known by any trade names, except:
c. Except as disclosed in item 4(a), the Debtor has not at any time
during its existence [as an affiliate of U.S Aggregates, Inc.] had any other
legal name or been the subject of any merger or other corporate reorganization,
except:
d. Except as disclosed in item 4(b), the Debtor has not at any time
during its existence [as an affiliate of U.S Aggregates, Inc.] used or been
known by any trade names, except:
5. Assets Acquired from Others: During the last six months, all of the
---------------------------
Debtor's tangible personal property was acquired in transactions in which the
Debtor was a "buyer in the ordinary course of business" as defined in UCC 1-201,
except:
(Please provide appropriate documentation showing releases of any liens, or
provide the name of the seller and location of the property at the time of sale
for any listed items.)
6. Intellectual Property: Schedule I hereto is a complete listing of
--------------------- ----------
all of such Debtor's Intellectual Property which is subject to registration
statutes.
IN WITNESS WHEREOF, this certificate has been duly executed as of the day
and year first above written.
[ENTITY NAME]
-------------
By:
Title:
SCHEDULE I - INTELLECTUAL PROPERTY
----------
ISSUED PATENTS
--------------
COUNTRY TITLE CO. NAME HELD IN PATENT/SERIAL NO. ISSUE DATE
PENDING PATENT APPLICATIONS
COUNTRY TITLE CO. NAME HELD IN PATENT/SERIAL NO. FILING DATE
TRADEMARKS
----------
REGISTERED TRADEMARKS AND SERVICE MARKS
---------------------------------------
▇▇▇▇ TITLE CO. NAME HELD IN PATENT/SERIAL NO. ISSUE DATE
PENDING TRADEMARKS AND SERVICE ▇▇▇▇ APPLICATIONS
▇▇▇▇ TITLE CO. NAME HELD IN PATENT/SERIAL NO. FILING DATES
COPYRIGHTS
----------
REGISTERED COPYRIGHTS
---------------------
COPYRIGHT NAME REGISTRATION NO. ISSUE DATE COUNTRY CO. NAME HELD IN
PENDING APPLICATIONS FOR COPYRIGHT REGISTRATION
COPYRIGHT NAME REGISTRATION NO. ISSUE DATE COUNTRY CO. NAME HELD IN
EXHIBIT R
FORM OF BORROWING BASE CERTIFICATE
----------------------------------
To: Bank of America, as Agent
Ladies and Gentlemen:
Please refer to the Third Amended and Restated Credit Agreement dated as of June
5, 1998 (as amended or otherwise modified from time to time, the "Credit
------
Agreement") among U.S. Aggregates, Inc. (the "Company"), various financial
--------- -------
institutions and Bank of America, N.A., as agent. This certificate (this
"Certificate"), together with supporting calculations attached hereto, is
-----------
delivered to you pursuant to the terms of the Credit Agreement. Capitalized
terms used but not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement.
The Company hereby certifies and warrants to the Agent and the Lenders that at
the close of business on ______________, ____ (the "Calculation Date"), the
----------------
Borrowing Base was $_____________, computed as set forth on the schedule
attached hereto.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed and
delivered by its officer thereunto duly authorized on ___________, 200__.
U.S. AGGREGATES, INC.
By:___________________________
Title:___________________________
SCHEDULE TO BORROWING BASE CERTIFICATE
Dated as of [_________________]
1. Gross Receivables $_________
2. Item 1 times 75% $_________
3. Gross Inventory $_________
4. Item 3 times 50% $_________
5. Borrowing Base
[Item 2 plus Item 2] $_________
6. Lesser of Item 5 and
the Revolving Commitments $_________
7. Revolving Outstandings $_________
8. Net Availability
[Excess of Item 6 over Item 7] $_________
9. Required Prepayment
[Excess of Item 7 over Item 6] $_________
SCHEDULE I
SUBSIDIARIES
Name of Subsidiary State of
Incorporation
------------------ -------------
Western Aggregates Holding Corp. Delaware
SRM Holdings Corp. Delaware
A-Block Company, Inc. [Arizona corporation] Arizona
A-Block Company, Inc. [California California
corporation]
▇▇▇ Rock Products, Incorporated Utah
Cox Transport Corporation Utah
Mohave Concrete and Materials, Inc. [Arizona Arizona
corporation]
Mohave Concrete and Materials, Inc. [Nevada Nevada
corporation]
Western Rock Products Corporation Utah
Valley Asphalt, Inc. Utah
Tri-State Testing Laboratories, Inc. Utah
Geodyne ▇▇▇▇ Rock Products, Inc. Utah
Monroc, Inc. Delaware
Western Aggregates, Inc. Utah
Jensen Construction & Development, Inc. Nevada
Sandia Construction, Inc. Nevada
Eagle Valley Materials, Inc. Utah
Nevada Aggregates, Inc. Nevada
SRM Aggregates, Inc. Alabama
DeKalb Stone, Inc. Georgia
Mulberry Rock Corporation ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Sand, Inc. Tennessee
BHY Ready Mix, Inc. Tennessee
Bama Crushed Corporation Alabama
Grove Materials Corporation Georgia