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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of June 5, 1998
among
U.S. AGGREGATES, INC.,
VARIOUS FINANCIAL INSTITUTIONS
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Agent
Arranged by
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TABLE OF CONTENTS
Page
RECITALS.....................................................................1
SECTION 1 DEFINITIONS AND INTERPRETATION...................................1
1.1 Definitions.......................................................1
1.2 Computations.....................................................19
1.3 Cross-References; Section Captions...............................19
1.4 Addition of Lenders; Adjustment of Percentages; Reallocation
of Loans.........................................................19
SECTION 2 COMMITMENTS OF THE BANKS; TYPES OF LOANS; BORROWING
AND CONVERSION PROCEDURES.......................................20
2.1 Commitments......................................................20
2.1.1 Revolving Commitments..............................20
2.1.2 Term A Loan Commitments............................20
2.1.3 Term B Loan Commitments............................20
2.2 Various Types of Loans...........................................21
2.3 Borrowing Procedures.............................................21
2.4 Procedures for Conversion of Type of Loan........................21
2.5 Letter of Credit Procedures......................................22
2.6 Participations in Letters of Credit..............................22
2.7 Reimbursement Obligations........................................22
2.8 Limitation on the Issuing Lender's Obligations...................23
2.9 Funding by Revolving Lenders to the Issuing Lender...............23
2.10 Warranty........................................................23
2.11 Conditions......................................................24
2.12 Commitments Several.............................................24
SECTION 3 NOTES EVIDENCING LOANS; PAYMENT SCHEDULE........................24
3.1 Notes............................................................24
3.2 Recordkeeping....................................................25
SECTION 4 INTEREST........................................................25
4.1 Interest Rates...................................................25
4.2 Interest Payment Dates...........................................26
4.3 Interest Periods.................................................26
4.4 Setting and Notice of Eurodollar Rates...........................26
4.5 Computation of Interest..........................................27
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SECTION 5 FEES............................................................27
5.1 Non-Use Fees.....................................................27
5.2 Letter of Credit Fees............................................27
5.3 Agent's Fees.....................................................27
5.4 Arranger's Fee...................................................27
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS.....................................................28
6.1 Reduction or Termination of the Commitments......................28
6.1.1 Mandatory Reduction of Revolving Commitments.......28
6.1.2 Voluntary Reduction or Termination of Revolving
Commitments........................................28
6.1.3 Reductions Pro Rata................................28
6.2 Prepayments......................................................28
6.2.1 Mandatory Prepayments..............................28
6.2.2 Voluntary Prepayments..............................29
6.2.3 Application of Mandatory and Voluntary Prepayments
among Term Loan Facilities.........................30
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF;
TAXES...........................................................30
7.1 Making of Payments...............................................30
7.2 Application of Certain Payments..................................31
7.3 Due Date Extension...............................................31
7.4 Setoff...........................................................31
7.5 Proration of Payments............................................31
7.6 Net Payments; Tax Exemptions.....................................32
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS................................................33
8.1 Increased Costs..................................................33
8.2 Basis for Determining Interest Rate Inadequate or Unfair.........34
8.3 Changes in Law Rendering Eurodollar Loans Unlawful...............34
8.4 Funding Losses...................................................35
8.5 Right of Lenders to Fund through Other Offices...................35
8.6 Discretion of Lenders as to Manner of Funding....................35
8.7 Mitigation of Circumstances; Replacement of Affected Lender......35
8.8 Conclusiveness of Statements; Survival of Provisions.............36
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SECTION 9 WARRANTIES......................................................36
9.1 Organization, etc................................................36
9.2 Authorization; No Conflict.......................................36
9.3 Validity and Binding Nature......................................37
9.4 Financial Information............................................37
9.5 No Material Adverse Change.......................................37
9.6 Litigation and Contingent Liabilities............................37
9.7 Ownership of Properties; Liens...................................38
9.8 Subsidiaries.....................................................38
9.9 Pension and Welfare Plans........................................38
9.10 Regulated Industry..............................................38
9.11 Regulations G, U and X..........................................38
9.12 Taxes...........................................................38
9.13 Environmental Matters...........................................38
9.14 Compliance with Law.............................................40
9.15 Information.....................................................40
9.16 Insurance.......................................................40
9.17 Solvency, etc...................................................40
9.18 Real Property...................................................40
9.19 Merger, Subordinated Notes, etc.................................41
9.20 Intellectual Property...........................................41
9.21 Burdensome Obligations..........................................41
9.22 Senior Debt.....................................................41
SECTION 10 COVENANTS.......................................................42
10.1 Reports, Certificates and Other Information.....................42
10.1.1 Audit Report......................................42
10.1.2 Interim Reports...................................42
10.1.3 Compliance Certificate............................42
10.1.4 Reports to SEC....................................43
10.1.5 Notice of Default, Litigation and ERISA Matters...43
10.1.6 Subsidiaries......................................43
10.1.7 Management Reports................................43
10.1.8 Projections.......................................43
10.1.9 Insurance Information.............................44
10.1.10 Subordinated Debt Notices........................44
10.1.11 Other Information................................44
10.2 Books, Records and Inspections..................................44
10.3 Insurance.......................................................44
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10.4 Compliance with Law; Payment of Obligations.....................44
10.5 Maintenance of Existence, etc...................................45
10.6 Financial Ratios and Restrictions...............................45
10.6.1 Interest Coverage Ratio...........................45
10.6.2 Fixed Charge Coverage Ratio.......................45
10.6.3 Leverage Ratio....................................45
10.7 Mergers, Consolidations, Purchases and Sales....................45
10.8 Debt............................................................46
10.9 Liens...........................................................46
10.10 Investments....................................................47
10.11 Restricted Payments............................................49
10.12 Capital Expenditures, etc......................................49
10.13 Rental Obligations.............................................49
10.14 Use of Proceeds................................................50
10.15 Maintenance of Property........................................50
10.16 Employee Benefit Plans.........................................50
10.17 Environmental Matters..........................................50
10.17.1 Environmental Obligations........................50
10.17.2 Environmental Information........................50
10.18 Unconditional Purchase Obligations.............................51
10.19 Inconsistent Agreements, etc...................................51
10.20 Transactions with Related Parties..............................51
10.21 Business Activities............................................51
10.22 Further Assurances.............................................51
10.23 Modification of Certain Agreements.............................52
10.24 Lender Meetings................................................52
10.25 Interest Rate Protection.......................................52
10.26 Fiscal Year....................................................52
10.27 Limitations on Sale and Leaseback Transactions.................52
10.28 Post-Closing Real Estate Matters...............................52
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING............................53
11.1 Effectiveness...................................................53
11.1.1 Notes.............................................53
11.1.2 Resolutions.......................................53
11.1.3 Consents, etc.....................................53
11.1.4 Incumbency and Signature Certificates.............53
11.1.5 Guaranty..........................................53
11.1.6 Security Agreement................................54
11.1.7 Pledge Agreements.................................54
11.1.8 Opinions of Counsel...............................54
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11.1.9 Insurance.........................................54
11.1.10 Merger, 1996 Subordinated Notes, 1998
Subordinated Notes...............................54
11.1.11 Payment of Fees..................................54
11.1.12 Solvency Certificate.............................55
11.1.13 Financial Information............................55
11.1.14 Pro Forma........................................55
11.1.15 Mortgage Amendments..............................55
11.1.16 Real Estate Documentation........................55
11.1.17 Other............................................55
11.2 Other Conditions to Initial Credit Extension....................56
11.2.1 1998 Subordinated Notes...........................56
11.2.2 Capital Structure; Indebtedness...................56
11.2.3 1996 Subordinated Notes...........................56
11.2.4 Merger Consideration; Expenses....................56
11.3 All Loans and Letters of Credit.................................56
11.3.1 No Default, etc...................................56
11.3.2 Confirmatory Certificate..........................56
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT..............................57
12.1 Events of Default...............................................57
12.1.1 Non-Payment of the Loans, etc.....................57
12.1.2 Defaults in Respect of Other Debt.................57
12.1.3 Other Material Obligations........................57
12.1.4 Bankruptcy, Insolvency, etc.......................57
12.1.5 Non-Compliance with Provisions of this Agreement..58
12.1.6 Warranties........................................58
12.1.7 Pension Plans.....................................58
12.1.8 Judgments.........................................58
12.1.9 Invalidity of Collateral Documents, etc...........58
12.1.10 Invalidity of Guaranty, etc......................58
12.1.11 Change in Control or Management..................58
12.1.12 Invalidity of Subordination Provisions, etc......59
12.2 Effect of Event of Default......................................59
SECTION 13 THE AGENT.......................................................59
13.1 Appointment and Authorization...................................59
13.2 Delegation of Duties............................................60
13.3 Liability of Agent..............................................60
13.4 Reliance by Agent...............................................60
13.5 Notice of Default...............................................61
13.6 Credit Decision.................................................61
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13.7 Indemnification.................................................61
13.8 Agent in Individual Capacity....................................62
13.9 Successor Agent.................................................62
13.10 Withholding Tax................................................63
13.11 Collateral Matters.............................................64
13.12 Funding Reliance...............................................65
13.13 Assignment of Agency Function..................................65
SECTION 14 GENERAL.........................................................66
14.1 Waiver; Amendments..............................................66
14.2 Confirmations...................................................67
14.3 Notices.........................................................67
14.4 Subsidiary References...........................................68
14.5 Regulation U....................................................68
14.6 Costs, Expenses and Taxes.......................................68
14.7 Indemnification by the Company..................................68
14.8 Successors and Assigns..........................................69
14.9 Assignments; Participations.....................................69
14.9.1 Assignments.......................................69
14.9.2 Participations....................................71
14.10 Governing Law..................................................71
14.11 Counterparts...................................................71
14.12 Forum Selection and Consent to Jurisdiction....................72
14.13 Waiver of Jury Trial...........................................72
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SCHEDULE I Commitments and Percentages
SCHEDULE 1.1A Pricing Schedule
SCHEDULE II Disclosure Schedule
Item 9.6 Litigation, etc.
Item 9.8 Subsidiaries
Item 9.9 Pension and Welfare Plans
Item 9.13 Environmental Matters
Item 9.16 Insurance
Item 9.18 Real Property
Item 10.8 Debt
Item 10.9 Liens
Item 10.10 Investments
EXHIBIT A Form of Note (Section 3.1)
EXHIBIT B Form of Acquisition Certificate
(Section 10.10)
EXHIBIT C Form of Security Agreement (Section 11.1.6)
EXHIBIT D-1 Form of Company Pledge Agreement (Section 11.1.7)
EXHIBIT D-2 Form of Subsidiary Pledge Agreement (Section 11.1.7)
EXHIBIT D-3 Form of Shareholder Pledge Agreement (Section 11.1.7)
EXHIBIT E Form of Guaranty (Section 11.1.5)
EXHIBIT F-1 Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
(Section 11.1.8)
EXHIBIT F-2 Form of Opinion of Nevada Counsel (Section 11.1.8)
EXHIBIT F-3 Form of Opinion of Utah Counsel (Section 11.1.8)
EXHIBIT F-4 Form of Opinion of Alabama Counsel (Section 11.1.8)
EXHIBIT F-5 Form of Opinion of Arizona Counsel (Section 11.1.8)
EXHIBIT F-6 Form of Opinion of California Counsel (Section 11.1.8)
EXHIBIT F-7 Form of Opinion of Georgia Counsel (Section 11.1.8)
EXHIBIT F-8 Form of Opinion of Tennessee Counsel (Section 11.1.8)
EXHIBIT G Form of Purchase Agreement Assignment
EXHIBIT H Form of Assignment Agreement
(Section 14.9.1)
EXHIBIT I Form of Compliance Certificate
(Section 10.1.3)
EXHIBIT J Form of Notice of Borrowing
(Section 2.3)
EXHIBIT K Form of Notice of Conversion
(Section 2.4)
EXHIBIT L Form of Notice of Continuation
(Section 4.3)
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EXHIBIT M Form of Notice of Prepayment
(Section 6.2.4)
EXHIBIT N Form of Solvency Certificate (Section 11.1.12)
EXHIBIT O Form of Prepayment Option Notice
(Section 6.2.3)
EXHIBIT P Form of Exemption Certificate
(Section 13.10)
EXHIBIT Q Form of Amendment to Mortgage
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 5, 1998 (as amended or otherwise
modified from time to time, this "Agreement"), is entered into among U.S.
AGGREGATES, INC., a Delaware corporation (the "Company"), the undersigned
financial institutions (together with their respective successors and assigns,
collectively the "Lenders" and individually each a "Lender") and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (successor-by-merger to Bank of America
Illinois), as agent and letter of credit issuing bank for the Lenders.
RECITALS
WHEREAS, the Company and various financial institutions are parties to a
Second Amended and Restated Credit Agreement, dated as of October 15, 1996 (as
amended or otherwise modified from time to time prior to the date hereof, the
"Existing Agreement");
WHEREAS, the Company and the Lenders desire to amend and restate the
Existing Agreement to increase the commitments of the Lenders to $145,000,000
and to make certain other changes as hereinafter set forth; and
WHEREAS, the Company and the Lenders have agreed that on the Effective
Date (as defined below) the Existing Agreement shall be amended and restated in
the form of this Agreement and that the outstanding loans and letters of credit
under the Existing Agreement shall be deemed to be Loans and Letters of Credit
hereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS AND INTERPRETATION.
1.1 Definitions. When used herein the following terms shall have the
following meaning (such definitions to be applicable to both the singular and
plural forms of such terms):
ABR Loan means any Loan which bears interest at or by reference to the
Alternate Base Rate.
Accepting Lenders - see Section 6.2.3.
Acquisition Capital Expenditures means the aggregate amount of all
expenditures of the Company and its Subsidiaries for fixed or capital assets
made in connection with a Permitted
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Acquisition on or reasonably near the date of such Permitted Acquisition, as
detailed in the Acquisition Certificate related thereto.
Acquisition Certificate - see Section 10.10(k)(ii).
AcquisitionCo means Western Acquisition, Inc., a Delaware corporation.
Adjusted Working Capital means the excess of:
(a) (i) the consolidated current assets of the Company and its
Subsidiaries less (ii) the amount of cash and cash equivalents included in such
consolidated current assets;
over
(b) (i) consolidated current liabilities of the Company and its
Subsidiaries less (ii) the amount of short-term Indebtedness (including current
maturities of long-term Indebtedness) of the Company and its Subsidiaries
included in such consolidated current liabilities.
Affected Lender means any Lender that has given notice to the Company
(which has not been rescinded) of (i) any obligation by the Company to pay any
amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any
circumstances of the nature described in Section 8.2 or 8.3.
Affected Loan - see Section 8.3.
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
Affiliate Agent - see Section 13.13.
Agent means BofA in its capacity as agent for the Lenders hereunder and
any successor thereto in such capacity.
Agent-Related Persons means BofA and any successor agent arising under
Section 13.9, together with their respective Affiliates (including the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
Agreement - see the Preamble.
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▇▇▇▇▇▇ Notes means (a) the Promissory Note secured by Deed of Trust dated
January 19, 1993 issued by Western Rock to the order of ▇.▇. ▇▇▇▇▇▇ and Sons
Corp. in the original principal amount of $116,753 and (b) the Promissory Note
dated November 16, 1993 issued by Western Rock to ▇.▇. ▇▇▇▇▇▇ and Sons Corp. in
the original principal amount of $163,833.28.
Alternate Base Rate means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect for
such day as publicly announced from time to time by BofA in Chicago, Illinois,
as its "reference rate." (The "reference rate" is a rate set by BofA taking into
account various factors, including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.)
Amendment to Mortgage means, with respect to any Mortgage executed prior
to the Effective Date, an amendment to such Mortgage dated the date hereof in
substantially the form of Exhibit Q.
Applicable ABR Margin means the rate per annum set forth in Schedule 1.1A
opposite the applicable Leverage Ratio.
Applicable Eurodollar Margin means the rate per annum set forth in
Schedule 1.1A opposite the applicable Leverage Ratio.
Arranger means BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a Delaware corporation.
Asset Sale means the sale, lease, assignment or other transfer for value
by the Company or any Subsidiary to any Person (other than the Company or any
Subsidiary) of any asset or right of the Company or such Subsidiary (including
any sale or other transfer of stock of any Subsidiary, whether by merger,
consolidation or otherwise); for purposes of greater clarity, it is understood
that a sale by the Company or any Subsidiary of its own capital stock is not an
"Asset Sale" hereunder.
Assignee - see Section 14.9.1.
Assignment Agreement - see Section 14.9.1.
Available Cash Proceeds means all Net Cash Proceeds of Asset Sales by the
Company or any Subsidiary (other than sales of inventory and dispositions of
obsolete, unused, surplus or unnecessary equipment, in each case in the ordinary
course of business) to a Person other than the Company or a Subsidiary.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
ss. 101 et seq.), as amended.
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BofA means Bank of America National Trust and Savings Association, a
national banking association.
Business Day means any day other than a Saturday or Sunday on which
commercial banks in Chicago and San Francisco are open for commercial banking
business and, in the case of a Business Day which relates to a Eurodollar Loan,
on which dealings are carried on in the interbank eurodollar market.
Capital Expenditures means 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), (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 and (c) Acquisition Capital
Expenditures to the extent that Acquisition Capital Expenditures during the
Fiscal Year or Computation Period in question do not exceed $7,500,000.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of such Person.
Cash Equivalent Investment means, at any time:
(a) any evidence of Debt, maturing not more than one year after such
time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than one year from the date
of issue, which is issued by
(i) a corporation (except the Company or an Affiliate thereof)
organized under the laws of any State of the United States of
America or of the District of Columbia and rated at least A-1 by
Standard & Poor's Ratings Group or P-1 by ▇▇▇▇▇'▇ Investors Service,
Inc., at the time of investment, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers' acceptance or
eurocurrency time deposit, maturing not more than one year after the date
of issue, which is issued by either
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(i) a financial institution that is a member of the Federal
Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement with a term of one year or less which
(i) is entered into with
(A) any Lender, or
(B) any other commercial banking institution of the
stature referred to in clause (c)(i),
(ii) is secured by a fully perfected Lien in any obligation of
the type described in any of clauses (a) through (c), and
(iii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation
of such Lender (or other commercial banking institution) thereunder;
(e) investments in money market mutual funds registered with the SEC
meeting the requirements of Rule 2a-7 promulgated under the Investment
Company Act of 1940, as amended;
(f) participations in short-term loans to any corporation (other
than an affiliate of the Company) organized under the laws of any state of
the United States or of the District of Columbia and rated at least A-1 by
Standard & Poor's Ratings Group or P-1 by ▇▇▇▇▇'▇ Investors Services,
Inc.; or
(g) investments in short-term asset management accounts offered by
any Lender for the purpose of investing in loans to any corporation (other
than an affiliate of the Company) organized under the laws of any state of
the United States or of the District of Columbia and rated at least A-1 by
Standard & Poor's Ratings Group or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.
CERCLA means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
CERCLIS means the Comprehensive Environmental Response Compensation
Liability Information System List.
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Code means the Internal Revenue Code of 1986, as amended.
Collateral Documents means each Pledge Agreement, the Security Agreement,
each Mortgage, each Purchase Agreement Assignment and any other pledge
agreement, security agreement or similar document which is executed to grant
security to the Agent for the obligations of the Company or any Guarantor
hereunder or in connection herewith.
Commitment means, as to any Lender, such Lender's commitment to make Loans
and to issue or participate in Letters of Credit hereunder, as adjusted from
time to time pursuant to Section 6.1 or Section 14.9.
Company - see the Preamble.
Compliance Certificate - see Section 10.1.3.
Computation Period means any period of four consecutive Fiscal Quarters.
Consolidated Net Income means, with respect to the Company and its
Subsidiaries for any period, the consolidated net income (or loss) of the
Company and its Subsidiaries for such period, excluding extraordinary items;
provided that there shall be excluded therefrom the income of any Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
to the Company by such Subsidiary of such income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary.
Cox Notes means the Promissory Notes, each dated March 30, 1995 and each
issued by the Company (a) to the order of ▇▇▇▇▇▇ ▇. ▇▇▇ in the original
principal amount of $285,714.28, (b) to the order of ▇▇▇▇▇ ▇. ▇▇▇ in the
original principal amount of $285,714.29, (c) to the order of ▇▇▇▇▇▇ ▇. ▇▇▇ in
the original principal amount of $285,714.29, (d) to the order of ▇▇▇▇▇ ▇. ▇▇▇
in the original principal amount of $285,714.29, (e) to the order of ▇▇▇ ▇. ▇▇▇
in the original principal amount of $285,714.28, (f) to the order of ▇▇▇▇ ▇. ▇▇▇
in the original principal amount of $285,714.28 and (g) to the order of ▇▇▇▇▇▇▇
▇. ▇▇▇ in the original principal amount of $285,714.29.
Debt of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, whether or not evidenced by bonds, debentures,
notes or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been recorded as liabilities on a balance sheet of
such Person, (c) all obligations of such Person to pay the deferred purchase
price of property or services (other than current accounts payable and accrued
expenses arising in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (e) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn) and banker's acceptances issued for the account of
such Person, (f) all obligations of
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such Person in respect of Hedging Agreements, (g) all Suretyship Liabilities of
such Person and (h) all Debt (as defined above) of any partnership in which such
Person is a general partner. The amount of the Debt of any Person in respect of
Hedging Agreements shall be deemed to be the unrealized net loss position of
such Person thereunder (determined for each counterparty individually, but
netted for all Hedging Agreements maintained with such counterparty).
Dekalb Stone means Dekalb Stone, Inc., a Georgia corporation.
Designated Proceeds - see Section 6.2.1.
Direct Recipient - see Section 7.6(a).
Dollar and the sign "$" mean lawful money of the United States of America.
EBITDA means, for any period, Consolidated Net Income of the Company for
such period before accounting for Minority Interests plus, to the extent
deducted in determining Consolidated Net Income, Interest Expense, income tax
expense, depreciation, depletion and amortization for such period.
Effective Date - see Section 11.1.
Environmental Laws means all applicable federal, state or local statutes,
laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment (including, without limitation, CERCLA and the
Resource Conservation and Recovery Act).
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
Eurocurrency Reserve Percentage means, with respect to any Eurodollar Loan
for any Interest Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the percentage in effect on each
day of such Interest Period (whether or not applicable to any Lender), as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor), for determining the aggregate maximum reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to Regulation D or any other
then applicable regulation of such Board of Governors which prescribes reserve
requirements applicable to "Eurocurrency Liabilities" as presently defined in
Regulation D.
Eurodollar Loan means any Loan which bears interest at a rate determined
by reference to the Eurodollar Rate (Reserve Adjusted).
-7-
Eurodollar Office means, with respect to any Lender, any office of such
Lender which shall be making or maintaining any Eurodollar Loan of such Lender
hereunder or such other office through which such Lender determines its
Eurodollar Rate. A Eurodollar Office of any Lender may be, at the option of such
Lender, either a domestic or foreign office.
Eurodollar Rate means, with respect to any Eurodollar Loan for any
Interest Period, the rate per annum determined by the Agent at which Dollar
deposits in immediately available funds are offered to the Eurodollar Office of
BofA two Business Days prior to the beginning of such Interest Period by major
banks in the interbank eurodollar market as at or about 10:00 A.M., Chicago
time, for delivery on the first day of such Interest Period, for the number of
days comprised therein and in an amount equal or comparable to the amount of the
Eurodollar Loan of BofA for such Interest Period.
Eurodollar Rate (Reserve Adjusted) means, with respect to any Eurodollar
Loan for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
Event of Default means any of the events described in Section 12.1.
Excess Cash Flow means, for any period, the remainder of
(a) EBITDA for such period,
less
(b) the sum, without duplication, of
(i) scheduled repayments of principal of Term Loans, regularly
scheduled principal payments arising with respect to any other
long-term Debt of the Company and its Subsidiaries, and the portion
of any regularly scheduled payments with respect to Capital Leases
allocable to principal, in each case made during such period,
plus
(ii) voluntary prepayments of the Term Loans pursuant to
Section 6.2.2 during such period,
-8-
plus
(iii) cash payments made in such period with respect to
Capital Expenditures,
plus
(iv) all federal, state, local and foreign income taxes paid
by the Company and its Subsidiaries during such period,
plus
(v) cash Interest Expense of the Company and its Subsidiaries
during such period and, to the extent not deducted in determining
EBITDA, cash payments (other than payments of principal) made by the
Company in connection with prepayments and repayments of Term Loans
under clauses (b)(i) and (b)(ii) above,
plus
(vi) any net increase in Adjusted Working Capital during such
period (exclusive of increases in working capital associated with
Asset Sales),
plus
(vii) cash payments made by the Company of transaction fees
and expenses in connection with any Permitted Acquisition,
including, without limitation, the Merger, and
plus
(viii) any gains on Asset Sales or resulting from receipt of
insurance or condemnation proceeds (or similar recoveries) during
such period to the extent that (A) such gains were included in
calculating EBITDA and (B) the proceeds of such gains were applied
to prepay Loans pursuant to Section 6.2.1.
Excess Cash Proceeds means all Available Cash Proceeds generated by Asset
Sales that are not Primary Cash Proceeds.
Exemption Agreement - see Section 7.6(b).
Exemption Representation - see Section 7.6(c).
Existing Agreement - see the recitals.
-9-
Existing Letter of Credit means a letter of credit issued under the
Existing Agreement which is outstanding on the Effective Date.
Facility means each of (a) the Revolving Commitments and the Revolving
Loans made thereunder, (b) the Term A Loan Commitments and the Term A Loans made
thereunder and (c) the Term B Loan Commitments and the Term B Loans made
thereunder.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor
publication, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 A.M. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Agent.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company, which period shall be
the 12-month period ending on December 31 of each year.
Fixed Charge Coverage Ratio means, for any Computation Period, the ratio
of (a) EBITDA for such Computation Period to (b) the sum for such Computation
Period of (i) Interest Expense (other than, so long as the ▇▇▇▇▇▇ Note Documents
are in effect, with respect to the ▇▇▇▇▇▇ Note), (ii) Capital Expenditures,
(iii) cash taxes paid by the Company and its Subsidiaries and (iv) all scheduled
principal payments due on any Total Debt, other than principal payments made as
a result of any mandatory reduction of the Revolving Commitments.
GAAP means generally accepted accounting principles as in effect on the
date of this Agreement.
Governmental Authority means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
Group - see Section 2.2.
GTCR - means Golder, Thoma, Cressey, Rauner, Inc.
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Guarantor means (a) as of the Effective Date, each of the Subsidiaries
listed on Item 9.8 ("Subsidiaries") of Schedule II and (b) thereafter, each of
the Persons referred to in clause (a) and each other Person which from time to
time guaranties the Obligations (other than any such Person that ceases to be a
Guarantor as a result of a transaction permitted hereunder).
Guaranty means the Guaranty, in substantially the form of Exhibit E, to be
issued by each Guarantor, as the same may be amended or otherwise modified from
time to time.
▇▇▇▇▇▇ Note means the $9,000,000 Unsecured Note dated March 12, 1998 of
the Company payable to ▇▇▇▇▇▇ Trust and Savings Bank.
▇▇▇▇▇▇ Note Documents means the ▇▇▇▇▇▇ Note, the Guaranty of Golder,
Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV, L.P. ("GTCR IV") of the ▇▇▇▇▇▇ Note dated March
12, 1998 and the letter agreement dated March 12, 1998 among GTCR IV, ▇▇▇▇▇▇
Trust and Savings Bank, the Agent, The Prudential Life Insurance Company of
America and the Company.
Hazardous Material means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
(c) any crude oil, petroleum product or fraction thereof (excluding
gasoline and oil in motor vehicles, small amounts of cleaners and similar
items used in the ordinary course of business); or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any Environmental
Law.
Hedging Agreement means any interest rate, currency or commodity swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
agreement or arrangement designed to protect a Person against fluctuations in
interest rates.
Indemnified Liabilities - see Section 14.7.
Indemnified Person - see Section 14.7.
Insolvency Proceeding means (a) any case, action or proceeding before any
court or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors, composition,
marshalling of assets for creditors or other, similar arrangement in respect of
its
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creditors generally or any substantial portion of its creditors; in either case
undertaken under U.S. Federal, state or foreign law, including the Bankruptcy
Code.
Interest Coverage Ratio means, for any Computation Period, the ratio of
(a) EBITDA for such Computation Period to (b) Interest Expense (other than, so
long as the ▇▇▇▇▇▇ Note Documents are in effect, with respect to the ▇▇▇▇▇▇
Note) for such Computation Period.
Interest Expense means for any period the consolidated interest expense
(net of consolidated interest income) of the Company and its Subsidiaries for
such period (excluding interest expense accrued but not paid on Subordinated
Debt but including any interest expense with respect to Subordinated Debt which
was accrued prior to such period but paid during such period).
Interest Period - see Section 4.3.
Investment means, with respect to any Person:
(a) any loan or advance made by such Person to any other Person; and
(b) any capital contribution made by such Person to, or ownership or
similar interest held by such Person in, any other Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and shall,
if made by the transfer or exchange of property other than cash, be deemed to
have been made in an original principal or capital amount equal to the fair
market value of such property.
IRS means the Internal Revenue Service and any Governmental Agency
succeeding to any of its principal functions under the Code.
Issuing Lender means BofA in its capacity as issuer of one or more Letters
of Credit hereunder, together with any replacement letter of credit issuer
arising under Section 13.9.
▇▇▇▇▇▇ Note means the Promissory Note dated October 7, 1996 issued by
Western Rock to the order of ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the original principal amount of
$500,000.
Lender - see the Preamble.
Letter of Credit - see Section 2.1.1. The term "Letter of Credit" includes
each Existing Letter of Credit.
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Letter of Credit Application means a letter of credit application in the
form used by BofA at the applicable time for the type of Letter of Credit
requested.
Leverage Ratio means, as of the last day of any Computation Period, the
ratio of (a) Total Debt (other than, for so long as the ▇▇▇▇▇▇ Note Documents
are in effect, the ▇▇▇▇▇▇ Note) as of such day to (b) EBITDA for such
Computation Period. For the purposes of this calculation, the historical EBITDA
of Subsidiaries acquired during any Computation Period shall be included in the
calculation of EBITDA for the entire Computation Period.
Lien means, when used with respect to any Person, any interest in any real
or personal property, asset or other right owned or being purchased or acquired
by such Person which secures payment or performance of any obligation and shall
include any mortgage, lien, security interest, charge or other encumbrance of
any kind, whether arising by contract, as a matter of law, by judicial process
or otherwise.
Loan Documents means this Agreement, the Notes, the Letter of Credit
Applications, the Guaranty and the Collateral Documents.
Loans means Revolving Loans and Term Loans and Loan means any of the
foregoing.
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
$3,759,500.
Mandatory Prepayment Event - see Section 6.2.1.
Margin Stock means any "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
Material Adverse Effect means a material adverse effect on (a) the
financial condition, operations, business, assets or prospects of the (i)
Company or any Subsidiary (excluding any Subsidiary which owns less than 5% of
the consolidated assets of the Company and its Subsidiaries and had revenues
which were less than 5% of the consolidated revenues of the Company and its
Subsidiaries during the 12-month period ending on the last day of the most
recent month) or (ii) the Company and its Subsidiaries taken as a whole or (b)
the ability of the Company or any Subsidiary to timely and fully perform any of
its payment or other material obligations under this Agreement or any other Loan
Document to which it is a party.
Material Adverse Environmental Impact means an event, occurrence or
condition described in clause (b) or (i) of Section 9.13 which, together with
all other such events, occurrences or conditions, may reasonably be expected to
result in liabilities, for the Company and its Subsidiaries taken as a whole,
exceeding $1,000,000 in any Fiscal Year.
-13-
Maximum Proceeds Amount means an amount in aggregate Available Cash
Proceeds (for all Asset Sales during the term of this Agreement) equal to (x)
$30,000,000 plus (y) if the Leverage Ratio at the time of any Asset Sale is less
than 3.50:1 on a pro forma basis for the four most recent Fiscal Quarters
immediately preceding the date of such Asset Sale (assuming such Asset Sale and
all other similar Asset Sales that would not be permitted but for this clause
(y) had occurred on the first day of such period), then up to an additional
$20,000,000 in the aggregate for all Asset Sales permitted solely by this clause
(y).
Merger means the merger of AcquisitionCo with and into Monroc pursuant to
the terms of the Merger Agreement.
Merger Agreement means the Agreement and Plan of Merger, dated as of
January 29, 1998 and amended and restated as of March 4, 1998, among the
Company, AcquisitionCo and Monroc, as amended from time to time.
Minority Interests means the aggregate interests of the Pledgors in any
Subsidiary.
Monroc means Monroc, Inc., a Delaware corporation.
Mortgage means a mortgage, leasehold mortgage, deed of trust or similar
document granting a Lien on real property (or any interest therein) of the
Company or any Guarantor in appropriate form for filing or recording in the
applicable jurisdiction and otherwise reasonably satisfactory to the Agent.
1996 Subordinated Notes means the $30,000,000 10.34% Senior Subordinated
Notes of the Company due 2006 issued pursuant to the Note and Warrant Purchase
Agreement dated as of November 21, 1996 among the Company and the Purchasers
named therein (which agreement has been amended and restated concurrently
herewith to be the Note and Warrant Purchase Agreement).
1998 Subordinated Notes means the $15,000,000 10.09% Senior Subordinated
Notes of the Company due 2008 issued pursuant to the Note and Warrant Purchase
Agreement.
Net Cash Proceeds means
(a) with respect to any Asset Sale, cash proceeds (including any cash
received by way of deferred payment pursuant to a note receivable or
otherwise, but only as and when so received) received from such Asset Sale
net of the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees and sales
commissions), taxes paid or payable as a result thereof (after taking into
account any reduction in tax liability due to available tax credits or
deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Debt secured by a Lien
-14-
on the asset or assets which are the subject of such Asset Sale and any
reserve for adjustment in respect of the sale price of such asset or
assets or for indemnification in connection with such Asset Sale (in each
case, until such reserve is no longer required), and
(b) with respect to any issuance of equity securities or Other Debt, the
aggregate cash proceeds received by the Company or the relevant Subsidiary
pursuant to such issuance, net of the direct costs relating to such
issuance (including, without limitation, sales and underwriter's
commissions and legal, accounting and investment banking fees).
Net Revenues means, with respect to the Company and its Subsidiaries for
any period, the total net sales of the Company and its Subsidiaries that would
be shown on a statement of operations of the Company and its Subsidiaries
prepared in accordance with GAAP for such period.
Non-Use Fee Rate means the rate per annum set forth in Schedule 1.1A
opposite the applicable Leverage Ratio.
Note - see Section 3.1.
Note and Warrant Purchase Agreement means the Amended and Restated Note
and Warrant Purchase Agreement, dated as of June 5, 1998, among the Company and
the Purchasers party thereto, as amended, supplemented or otherwise modified
from time to time.
Other Debt means debt securities of the Company and its Subsidiaries other
than as permitted by Section 10.8.
Participant - see Section 14.9.2.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in section
3(2) of ERISA, which is subject to title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(3) of ERISA), and to which the Company or any
corporation, trade or business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of trades or businesses,
as described in section 414 of the Code or section 4001 of ERISA, may have any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
Percentage means a Revolving Loan Percentage, a Term A Loan Percentage or
a Term B Loan Percentage, as the context may require.
-15-
Permitted Acquisition means any purchase or acquisition by the Company or
any Subsidiary of all or substantially all of the assets of any other Person (or
of a particular business unit of any other Person), or of any equity interest in
any other Person, in each case which is engaged in the aggregates, or related
materials and services, business.
Person means any natural person, corporation, partnership, trust,
association, governmental authority or unit, limited liability company, or any
other entity, whether acting in an individual, fiduciary or other capacity.
Pledge Agreement means an Amended and Restated Pledge Agreement
substantially in the form of Exhibit ▇-▇, ▇-▇ or D-3, as appropriate, executed
by the Company or any other Person which owns stock of any Subsidiary, in each
case as amended or otherwise modified from time to time.
Pledgor means any Person (other than the Company or any Subsidiary) which
owns stock of the Company or any Subsidiary.
Prepayment Date - see Section 6.2.3.
Prepayment Option Notice - see Section 6.2.3.
Primary Cash Proceeds means the first $10,000,000 of aggregate Available
Cash Proceeds generated by Asset Sales during the term of this Agreement.
Public Offering means an offering of equity securities or Debt registered
under the Securities Act of 1933, as amended.
Purchase Agreements means, collectively, each purchase agreement entered
into by the Company and its Subsidiaries in connection with a Permitted
Acquisition hereunder, under the Existing Credit Agreement or under any
predecessor thereto as to which the Required Lenders have performed due
diligence and approved, in each case, as amended or otherwise modified from time
to time with the consent of the Required Lenders.
Purchase Agreement Assignment has the meaning assigned thereto in the
Credit Agreement dated as of July 13, 1994 among the Company, the Agent and
certain Lenders; see Exhibit G.
Recipient Taxes - see Section 7.6(a).
Related Party means, with respect to the Company, (i) any director or
officer of the Company or any member of the immediate family of any such officer
or director, (ii) any Person that beneficially owns or holds, or directly or
indirectly has the power to vote, 5% or more of the Capital
-16-
Stock of the Company or (iii) any other Person which, directly or indirectly,
controls or is under common control with the Company.
Release means a "release", as such term is defined in CERCLA.
Required Lenders means Lenders having an aggregate Total Percentage of 51%
or more.
Required Revolving Lenders means, at any time, Revolving Lenders having an
aggregate Revolving Loan Percentage of 51% or more.
Required Term A Lenders means, at any time, Term A Lenders having an
aggregate Term A Percentage of 51% or more.
Required Term B Lenders means, at any time, Term B Lenders having an
aggregate Term B Percentage of 51% or more.
Resource Conservation and Recovery Act means the Resource Conservation and
Recovery Act, 42 U.S.C. Section 690, et seq., as amended.
Revolving Commitment means, as to any Revolving Lender, the commitment of
such Revolving Lender to make Revolving Loans pursuant to Section 2.1.1. The
initial amount of each Revolving Lender's Revolving Commitment is set forth on
Schedule I.
Revolving Lender means, at any time, a Lender with a Revolving Commitment
at such time or which then holds any Revolving Loan.
Revolving Loan - see Section 2.1.1.
Revolving Loan Percentage means, as to any Revolving Lender, the
percentage which (a) the amount of such Revolving Lender's Revolving Commitment
(or, after termination of the Revolving Commitments, the outstanding principal
amount of such Revolving Lender's Revolving Loans) is of (b) the aggregate
amount of the Revolving Commitments (or, after termination of the Revolving
Commitments, the outstanding principal amount of all Revolving Loans).
Revolving Termination Date means June 5, 2004 or such earlier date on
which the Revolving Commitments terminate pursuant to Section 6 or 12.
SEC means the Securities and Exchange Commission.
Security Agreement means the Amended and Restated Security Agreement, in
substantially the form of Exhibit C, to be executed by the Company and each
Guarantor, as the same may be amended or otherwise modified from time to time.
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Stated Amount means, with respect to any Letter of Credit at any date of
determination, the maximum aggregate amount available thereunder at any time
during the then ensuing term of such Letter of Credit under any and all
circumstances, plus the aggregate amount of all unreimbursed payments and
disbursements under such Letter of Credit.
Subordinated Acquisition Debt means Debt incurred by the Company or any
Subsidiary to pay deferred purchase price in any Permitted Acquisition, which
has payment schedules and other terms, and which is subordinated to the
obligations of the Company hereunder or, as applicable, the obligations of such
Subsidiary under the Guaranty in a manner, satisfactory to the Agent.
Subordinated Debt means (1)(a) the Debt evidenced by the Lohja Note, the
▇▇▇▇▇▇ 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 and the 1998
Subordinated Notes and (3) Subordinated Acquisition Debt.
Subsidiary means, with respect to any Person, any other Person of which or
in which such Person and/or its other Subsidiaries own, directly or indirectly,
50% or more of (i) the combined voting power of all classes of stock having
general voting power under ordinary circumstances to elect a majority of the
directors of such Person, if it is a corporation, (ii) the capital interest or
profits interest of such Person, if it is a partnership, joint venture or
similar entity or (iii) the beneficial interest of such Person, if it is a
trust, association or other unincorporated association. Unless the context
otherwise requires, each reference to a Subsidiary herein shall be a reference
to a Subsidiary of the Company.
Suretyship Liability means any agreement, undertaking or other contractual
arrangement (but excluding completion and performance bonding in the ordinary
course of business) by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to or
otherwise to invest in a debtor, or otherwise to assure a creditor against loss)
any indebtedness, obligation or other liability (including accounts payable) of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Suretyship Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the indebtedness, obligation or other
liability guaranteed thereby.
Surviving Obligations means contingent obligations arising under this
Agreement and the other Loan Documents by operation of the provisions hereof and
thereof which by their terms survive termination hereof and thereof, which
obligations are not yet fixed or payable.
Term A Lender means, at any time, a Lender with a Term A Loan Commitment
at such time or which then holds any Term A Loan.
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Term A Loan - see Section 2.1.2.
Term A Loan Commitment means, as to any Lender, the commitment of such
Lender to make a Term A Loan pursuant to Section 2.1.2. The amount of each
Lender's Term A Loan Commitment is set forth on Schedule I.
Term A Loan Percentage means, as to any Lender, the percentage which (a)
the Term A Loan Commitment of such Lender (or, after the making of the Term A
Loans, the principal amount of such Lender's Term A Loan) is of (b) the
aggregate amount of the Term A Loan Commitments (or, after the making of the
Term A Loans, the aggregate principal amount of all Term A Loans).
Term B Lender means, at any time, a Lender with a Term B Loan Commitment
at such time or which then holds any Term B Loan.
Term B Loan - see Section 2.1.3.
Term B Loan Commitment means, as to any Lender, the commitment of such
Lender to make a Term B Loan pursuant to Section 2.1.3. The amount of each
Lender's Term B Loan Commitment is set forth on Schedule I.
Term B Loan Percentage means, as to any Lender, the percentage which (a)
the Term B Loan Commitment of such Lender (or, after the making of the Term B
Loans, the principal amount of such Lender's Term B Loan) is of (b) the
aggregate amount of the Term B Loan Commitments (or, after the making of the
Term B Loans, the aggregate principal amount of all Term B Loans).
Term B Prepayment Amount - see Section 6.2.3.
Term Loans means the Term A Loans and the Term B Loans.
Total Debt means the sum, without duplication, of (i) all Debt (other than
Debt described in clauses (f) and (g) of the definition of Debt) of the Company
and its Subsidiaries plus (ii) all Suretyship Liabilities of the Company and its
Subsidiaries in respect of Debt (other than Debt described in clause (f) of the
definition of Debt) of any other Person.
Total Percentage means, as to any Lender, the percentage which (a) the
Commitment of such Lender plus the unpaid principal amount of the Term A Loans
and Term B Loans of such Lender (plus, after the termination of the Revolving
Commitments, the sum of the unpaid principal amount of the Revolving Loans of
such Lender plus the participations of such Lender in all Letters of Credit) is
of (b) the sum of the Commitments of all Lenders plus the unpaid principal
amount of all Term A Loans and all Term B Loans (plus, after the termination of
the Revolving Commitments, the sum of the unpaid principal amount of all
Revolving Loans plus the Stated Amount of all Letters of Credit).
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Type of Loan or Borrowing - see Section 2.2. The types of Loans or
borrowings under this Agreement are as follows: ABR Loans or borrowings and
Eurodollar Loans or borrowings.
Unmatured Event of Default means any event which if it continues uncured
will, with lapse of time or notice or both, constitute an Event of Default.
▇▇▇▇▇ Notes means the Promissory Notes, each dated November 22, 1995 and
each issued by Southern Ready Mix, Inc. (a) to the order of ▇▇▇▇▇▇ ▇▇▇▇ in the
original principal amount of $1,500,000 and (b) to the order of R.E. Grills
Construction Co. in the original principal amount of $1,500,000.
Welfare Plan means a "welfare plan", as such term is defined in section
3(1) of ERISA.
Western Rock means Western Rock Products Corporation, a Utah corporation.
1.2 Computations. Where the character or amount of any asset or liability
or any item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for
purposes of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP.
1.3 Cross-References; Section Captions. A Section, an Exhibit or a
Schedule is, unless otherwise stated, a reference to a section hereof or an
exhibit or schedule hereto, as the case may be. Section captions are for
convenience only and shall not affect the interpretation of this Agreement.
1.4 Addition of Lenders; Adjustment of Percentages; Reallocation of Loans.
On the Effective Date, (a) each financial institution listed on the signature
pages hereof that was not a party to the Existing Agreement shall automatically
become a party hereto and be entitled to the benefits, and have the obligations,
of a "Lender" hereunder, (b) each Lender's Revolving Loan Percentage, Term A
Loan Percentage and Term B Loan Percentage shall be as set forth on Schedule I
to this Agreement and (c) each Revolving Lender or Term A Lender which, as a
result of any adjustment of the Revolving Loan Percentages and the Term A Loan
Percentages as set forth in clause (b) above, is to have a greater principal
amount of Loans outstanding than such Lender had outstanding under the Existing
Agreement immediately prior to the effectiveness hereof shall deliver to the
Agent immediately available funds to cover such Loans (and the Agent shall, to
the extent of the funds so received, disburse funds to each Lender which, as a
result of such adjustment of the Revolving Loan Percentages and the Term A Loan
Percentages is to have a lesser principal amount of Loans outstanding than such
Lender had outstanding under the Existing Agreement). In addition, on the
Effective Date, $55,000,000 of the Loans outstanding under the Existing
Agreement shall automatically become Term A Loans hereunder and the balance of
the Loans outstanding under the Existing Agreement shall automatically become
Revolving Loans hereunder. To facilitate the foregoing, the Company agrees that
on the Effective Date the Company will (i) convert all
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Eurodollar Loans outstanding under the Existing Agreement to ABR Loans and (ii)
pay to the Agent for the account of each Lender which is a party to the Existing
Agreement all interest, fees and other amounts (including amounts payable under
Section 8.4 of the Existing Agreement as a result of the conversion described in
clause (i) of this sentence) owed to such Lender under the Existing Agreement.
SECTION 2 COMMITMENTS OF THE BANKS; TYPES OF LOANS; BORROWING
AND CONVERSION PROCEDURES.
2.1 Commitments. On and subject to the terms and conditions of this
Agreement, each of the Lenders, severally and for itself alone, agrees as
follows:
2.1.1 Revolving Commitments. (a) Each Revolving Lender agrees to make
loans to the Company on a revolving basis (each such loan, a "Revolving Loan")
from time to time before the Revolving 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 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 participation in each such Letter of
Credit; provided, however, that (i) the sum of the aggregate principal amount of
all outstanding Revolving Loans plus the aggregate Stated Amount of all Letters
of Credit shall not at any time exceed $40,000,000 (as such amount is reduced
from time to time pursuant to Section 6.1) and (ii) the aggregate Stated Amount
of all Letters of Credit shall not at any time exceed $7,500,000.
2.1.2 Term A Loan Commitments. Each Term A Lender agrees to make a loan to
the Company (each such loan, a "Term A Loan") on the Effective Date in such Term
A Lender's Term A Loan Percentage of $55,000,000. The Term A Loan Commitments
shall expire concurrently with the making of the Term A Loans on the Effective
Date.
2.1.3 Term B Loan Commitments. Each Term B Lender agrees to make a loan to
the Company (each such loan, a "Term B Loan") on the Effective Date in such Term
B Lender's Term B Loan Percentage of $60,000,000. The Term B Loan Commitments
shall expire concurrently with the making of the Term B Loans on the Effective
Date.
2.2 Various Types of Loans. Each Revolving Loan shall be, and each Term
Loan may be divided into tranches which are, either an ABR Loan or a Eurodollar
Loan (each a "type" of Loan), as the Company shall specify in the related notice
of borrowing or conversion pursuant to Section 2.3 or 2.4. Eurodollar Loans
having the same Interest Period are sometimes called a "Group." ABR Loans and
Eurodollar Loans may be outstanding at the same time; provided that (i) not more
than ten different Groups shall be outstanding at any one time and (ii) the
aggregate principal amount of
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each Group of Eurodollar Loans shall at all times be at least $1,000,000 and an
integral multiple of $100,000; provided, further that one Group of Term A Loans
and one Group of Term B Loans may be in a different amount to the extent
necessary to comply with the repayment schedule for such Loans. All borrowings,
conversions and repayments of Loans in each Facility shall be effected so that
each Lender holding Loans in such Facility will have a pro rata share (according
to the applicable Percentage) of all types and Groups of Loans constituting such
Facility.
2.3 Borrowing Procedures. The Company shall give written notice
substantially in the form of Exhibit J (or by telephonic notice followed
promptly by such written notice) to the Agent of each proposed borrowing not
later than (a) in the case of an ABR borrowing, 10:00 A.M., Chicago time, on the
proposed date of such borrowing and (b) in the case of a Eurodollar borrowing,
11:00 A.M., Chicago time, at least three Business Days prior to the proposed
date of such borrowing. Each such notice shall be effective upon receipt by the
Agent, shall be irrevocable, and shall specify the date, amount and type of
borrowing and, in the case of a Eurodollar borrowing, the initial Interest
Period therefor. Promptly upon receipt of such notice, the Agent shall advise
each Lender holding a Commitment within the applicable Facility of such notice.
Not later than 1:00 P.M., Chicago time, on the date of a proposed borrowing,
each Lender holding a Commitment in the applicable Facility shall provide the
Agent at the payment office of the Agent in Concord, California with immediately
available funds covering such Lender's pro rata share of such borrowing and,
subject to the satisfaction of the conditions precedent set forth in Section 11
with respect to such borrowing, the Agent shall pay over the requested amount to
the Company on the requested borrowing date. Each borrowing shall be on a
Business Day and, if an ABR borrowing, shall be in an aggregate amount of at
least $500,000 or a higher integral multiple of $100,000 or, if a Eurodollar
borrowing, shall be in an aggregate amount of at least $1,000,000 or a higher
integral multiple of $100,000. Unless the Company shall otherwise direct in
writing, the proceeds of all borrowings shall be deposited to the Company's
demand deposit account no. 78-19625 maintained with BofA.
2.4 Procedures for Conversion of Type of Loan. Subject to the provisions
of Section 2.2, the Company may from time to time convert all or any part of any
outstanding Loan into a Loan of a different type by giving written notice
substantially in the form of Exhibit K (or by telephonic notice followed
promptly by such written notice) to the Agent not later than (a) in the case of
conversion into an ABR Loan, 10:00 A.M., Chicago time, on the proposed date of
such conversion and (b) in the case of conversion into a Eurodollar Loan, 11:00
A.M., Chicago time, at least three Business Days prior to the proposed date of
such conversion. Each such notice shall be effective upon receipt by the Agent,
shall be irrevocable, and shall specify the date and amount of such conversion,
the Loan to be so converted, the type of Loan to be converted into and, in the
case of a conversion into a Eurodollar Loan, the initial Interest Period
therefor. Promptly upon receipt of such notice, the Agent shall advise each
Lender holding a Loan in the applicable Facility of such notice. Subject to
Section 2.11, such Loan shall be so converted on the requested date of
conversion. Each conversion shall be on a Business Day.
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2.5 Letter of Credit Procedures. The Company shall give notice to the
Issuing Lender (with a copy to the Agent) of the proposed issuance of each
Letter of Credit (other than an Existing Letter of Credit) on a Business Day
which is at least two Business Days (or such lesser period as the Issuing Lender
may agree) prior to the proposed date of issuance of such Letter of Credit. Each
such notice shall be accompanied by a Letter of Credit Application, duly
executed by the Company and in all respects reasonably satisfactory to the
Issuing Lender, together with such other documentation as the Issuing Lender may
reasonably request in support thereof, it being understood that each Letter of
Credit Application shall specify, among other things, the date on which the
proposed Letter of Credit is to be issued, the expiration date of such Letter of
Credit (which shall not be later than the earlier of (x) one year after the
issuance date thereof and (y) thirty days prior to the then-scheduled Revolving
Termination Date, unless the Company shall have pledged cash collateral to the
Agent therefor in an amount, and pursuant to documentation, reasonably
satisfactory to the Required Revolving Lenders and the Agent) and whether such
Letter of Credit is to be transferable in whole or in part. Subject to the
satisfaction of the conditions precedent set forth in Section 11 with respect to
the issuance of such Letter of Credit, the Issuing Lender shall issue such
Letter of Credit on the requested issuance date.
2.6 Participations in Letters of Credit. Concurrently with the issuance of
each Letter of Credit (or, in the case of any Existing Letter of Credit, on the
Effective Date), the Issuing Lender shall be deemed to have sold and transferred
to each Revolving Lender and each Revolving Lender shall be deemed irrevocably
and unconditionally to have purchased and received from the Issuing Lender,
without recourse or warranty, an undivided interest and participation, to the
extent of such Revolving Lender's Revolving Loan Percentage, in such Letter of
Credit and the Company's reimbursement obligations with respect thereto. The
Agent hereby agrees, if any Letters of Credit are outstanding, to deliver
monthly to each Revolving Lender a list of all outstanding Letters of Credit,
together with such information related thereto as any Revolving Lender may
reasonably request.
2.7 Reimbursement Obligations. The Company hereby unconditionally and
irrevocably agrees to reimburse the Issuing Lender for each payment or
disbursement made by the Issuing Lender under any Letter of Credit honoring any
demand for payment made by the beneficiary thereunder, in each case on the date
that such payment or disbursement is made. Any amount not reimbursed on the date
of such payment or distribution shall bear interest from and including the date
of such payment or disbursement to but not including the date that the Issuing
Lender is reimbursed by the Company therefor, payable on demand, at a rate per
annum equal to the sum of Alternate Base Rate from time to time in effect plus
1% (plus, beginning on the first Business Day after demand by the Issuing
Lender, an additional 2%). The Issuing Lender shall notify the Company whenever
any demand for payment is made under any Letter of Credit by the beneficiary
thereunder; provided, however, that the failure of the Issuing Lender to so
notify the Company shall not affect the rights of the Issuing Lender or the
Revolving Lenders in any manner whatsoever.
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2.8 Limitation on the Issuing Lender's Obligations. In determining whether
to pay under any Letter of Credit, the Issuing Lender shall have no obligation
to the Company or any Revolving Lender other than to confirm that any documents
required to be delivered under such Letter of Credit appear to have been
delivered and appear to comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by the Issuing Lender
under or in connection with any Letter of Credit, if taken or omitted in the
absence of gross negligence and willful misconduct, shall not impose upon the
Issuing Lender any liability to the Company or any Revolving Lender and shall
not reduce or impair the Company's reimbursement obligations set forth in
Section 2.7 or the obligations of the Revolving Lenders pursuant to Section 2.9.
2.9 Funding by Revolving Lenders to the Issuing Lender. If the Issuing
Lender makes any payment or disbursement under any Letter of Credit and the
Company has not reimbursed the Issuing Lender in full for such payment or
disbursement by 11:00 A.M., Chicago time, on the date of such payment or
disbursement, or if any reimbursement received by the Issuing Lender from the
Company is or must be returned or rescinded upon or during any bankruptcy or
reorganization of the Company or otherwise, each Revolving Lender shall be
obligated to pay to the Agent for the account of the Issuing Lender, in full or
partial payment of the purchase price of its participation in such Letter of
Credit, its pro rata share (according to its Revolving Loan Percentage) of such
payment or disbursement (but no such payment shall diminish the obligations of
the Company under Section 2.7), and the Agent shall promptly notify each
Revolving Lender thereof. Each Revolving Lender irrevocably and unconditionally
agrees, severally and for itself alone, to so pay to the Agent in immediately
available funds for the Issuing Lender's account the amount of such Revolving
Lender's Revolving Loan Percentage of such payment or disbursement. If and to
the extent any Revolving Lender shall not have made such amount available to the
Agent by 2:00 P.M., Chicago time, on the Business Day on which such Revolving
Lender receives notice from the Agent of such payment or disbursement (it being
understood that any such notice received after noon, Chicago time, on any
Business Day shall be deemed to have been received on the immediately following
Business Day), such Revolving Lender agrees to pay interest on such amount to
the Agent for the Issuing Lender's account forthwith on demand for each day from
and including the date such amount was to have been delivered to the Agent to
but excluding the date such amount is paid, at a rate per annum equal to (a) for
the first three days after demand, the Federal Funds Rate from time to time in
effect and (b) thereafter, the Alternate Base Rate from time to time in effect
(together with such other compensatory amounts as may be required to be paid by
such Revolving Lender to the Agent pursuant to the Rules for Interbank
Compensation of the Counsel on International Banking or the Clearinghouse
Compensation Committee, as applicable, as in effect from time to time). Any
Revolving Lender's failure to make available to the Agent its Revolving Loan
Percentage of any such payment or disbursement shall not relieve any other
Revolving Lender of its obligation hereunder to make available to the Agent such
other Revolving Lender's Revolving Loan Percentage of such payment, but no
Revolving Lender shall be responsible for the failure of any other Revolving
Lender to make available to the Agent such other Revolving Lender's Revolving
Loan Percentage of any such payment or disbursement.
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2.10 Warranty. Each notice of borrowing pursuant to Section 2.3, and the
delivery of each Letter of Credit Application pursuant to Section 2.5, shall
automatically constitute a warranty by the Company to the Agent and each Lender
to the effect that on the date of such requested borrowing or the issuance of
the requested Letter of Credit (a) the warranties of the Company contained in
Section 9 (excluding Sections 9.6 and 9.8) of this Agreement shall be true and
correct as of such requested date as though made on the date thereof (except to
the extent relating solely to an earlier date, in which case such warranty shall
have been true and correct as of such earlier date) and (b) no Event of Default
or Unmatured Event of Default shall exist or will result therefrom.
2.11 Conditions. Notwithstanding any other provision of this Agreement,
(a) no Lender shall be obligated to make any Loan, (b) no Lender shall be
obligated to convert into or permit the continuation at the end of the
applicable Interest Period of any Eurodollar Loan and (c) the Issuing Lender
shall not be obligated to issue any Letter of Credit if, in any such case, an
Event of Default or Unmatured Event of Default exists or would result therefrom.
2.12 Commitments Several. The failure of any Lender to make a requested
Loan on any date shall not relieve any other Lender of its obligation to make a
Loan on such date, but no Lender shall be responsible for the failure of any
other Lender to make any Loan to be made by such other Lender.
SECTION 3 NOTES EVIDENCING LOANS; PAYMENT SCHEDULE.
3.1 Notes. The Loans of each Lender shall be evidenced by a promissory
note (as amended, supplemented, replaced or otherwise modified from time to
time, individually each a "Note" and collectively for all Lenders the "Notes")
substantially in the form of Exhibit A, with appropriate insertions, dated the
Effective Date (or such other date as shall be satisfactory to the Agent),
payable to the order of such Lender in an amount equal to the aggregate unpaid
principal amount of all of such Lender's Loans, as follows:
(a) each Revolving Loan of such Lender shall be paid in full on the
Revolving Termination Date;
(b) each Term A Loan of such Lender shall be paid in quarterly
installments, on the last Business Day of each calendar quarter
(commencing with the calendar quarter ending June 30, 1999), 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 the period in which the last date of each such calendar quarter
occurs:
Amount of
Period Term A Loans Payable
------ --------------------
6/30/99-3/31/00 $1,250,000
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6/30/00-3/31/01 $2,500,000
6/30/01-3/31/02 $3,000,000
6/30/02-3/31/03 $3,250,000
6/30/03-3/31/04 $3,750,000;
(c) each Term B Loan of such Lender shall be paid in quarterly
installments, on the last Business Day of each calendar quarter
(commencing with the calendar quarter ending June 30, 1999), with each
such installment to be in such Lender's Term B Loan Percentage of the
aggregate amount of the Term B Loans payable on such date set forth below
opposite the period in which the last date of each such calendar quarter
occurs:
Amount of
Period Term B Loans Payable
------ --------------------
6/30/99-12/31/05 $137,500
3/31/06 $51,287,500.
3.2 Recordkeeping. Each Lender shall record in its records the date and
amount of each Loan made by such Lender, each repayment or conversion thereof
and, in the case of each Eurodollar Loan, the dates on which each Interest
Period therefor shall begin and end. The aggregate unpaid principal amount so
recorded shall be rebuttable presumptive evidence of the principal amount owing
and unpaid on such Lender's Note. The failure to so record any such amount or
any error in so recording any such amount shall not, however, limit or otherwise
affect the obligations of the Company hereunder or under any Note to repay the
principal amount of the Loans evidenced by such Note together with all interest
accruing thereon.
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest on the unpaid
principal amount of each Loan for the period commencing on and including the
date of such Loan to but excluding the date such Loan is paid in full, as
follows:
(a) at all times while such Loan is an ABR Loan, at a rate per annum
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable ABR Margin; and
(b) at all times while such Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of the Eurodollar Rate (Reserve Adjusted)
applicable to each Interest Period for such Loan plus the Applicable
Eurodollar Margin;
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provided, however, that upon notice to the Company from the Agent (acting upon
the request of the Required Lenders) at any time an Event of Default exists, and
for so long as such Event of Default continues, the interest rate applicable to
all Loans shall be increased by 2%.
4.2 Interest Payment Dates. Accrued interest on each ABR Loan shall be
payable on the last Business Day of each calendar quarter 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, in the case of any Eurodollar
Loan with an Interest Period exceeding three months, on each three-month
anniversary of the first day of such Interest Period) and at maturity. After
maturity, accrued interest on all Loans shall be payable on demand.
4.3 Interest Periods. Each "Interest Period" for a Eurodollar Loan shall
commence on the date such Eurodollar Loan is made or converted from an ABR Loan,
or on the expiration of the immediately preceding Interest Period for such
Eurodollar Loan, and shall end on the date which is one, two, three or six
months thereafter, as the Company may specify:
(a) in the case of an Interest Period which commences on the date a
Eurodollar Loan is made or converted from an ABR Loan, in the related
notice of borrowing or conversion pursuant to Section 2.3 or 2.4, or
(b) in the case of a succeeding Interest Period with respect to any
Eurodollar Loan, by notice substantially in the form of Exhibit L (or by
telephonic notice followed promptly by such written notice) to the Agent
not later than 11:00 A.M., Chicago time, at least three Business Days
prior to the first day of such succeeding Interest Period, it being
understood that (i) each such notice shall be effective upon receipt by
the Agent and (ii) if the Company fails to give such notice (or timely
notice of prepayment of the applicable Loan pursuant to Section 6.2) by
the time and date specified above, such Loan shall automatically become an
ABR Loan at the end of its then-current Interest Period.
Each Interest Period for a Eurodollar Loan which would otherwise end on a day
which is not a Business Day shall end on the immediately succeeding Business Day
(unless such immediately succeeding Business Day is the first Business Day of a
calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day). The Company may not select any Interest Period (a) for
a Revolving Loan which would end after the scheduled Revolving Termination Date
or (b) for any Term A Loan or Term B Loan if, after giving effect to such
selection, the Company would have to prepay any Eurodollar Loan before the last
day of an Interest Period therefor in order to make any scheduled prepayment of
such Term A Loan or Term B Loan, as the case may be.
4.4 Setting and Notice of Eurodollar Rates. The applicable Eurodollar Rate
for each Interest Period shall be determined by the Agent, and notice thereof
shall be given by the Agent promptly
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to the Company and each Lender. Each determination of the applicable Eurodollar
Rate by the Agent shall be conclusive and binding upon the parties hereto, in
the absence of demonstrable error. The Agent shall, upon written request of the
Company or any Lender, deliver to the Company or such Lender a statement showing
the computations used by the Agent in determining any applicable Eurodollar Rate
hereunder.
4.5 Computation of Interest. Interest shall be computed for the actual
number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each ABR Loan shall change simultaneously with each change in
the Alternate Base Rate.
SECTION 5 FEES.
5.1 Non-Use Fees. The Company agrees to pay to the Agent for the account
of each Revolving Lender a non-use fee at a rate per annum equal to the Non-Use
Fee Rate on the daily unused amount of such Revolving Lender's Revolving
Commitment. Such non-use fee shall be payable in arrears on the last Business
Day of each calendar quarter and on the Revolving Termination Date, in each case
for the period then ending for which such non-use fee shall not have been
theretofore paid. The non-use fee shall be computed for the actual number of
days elapsed on the basis of a year of 360 days.
5.2 Letter of Credit Fees. (a) The Company agrees to pay to the Agent for
the account of the Revolving Lenders pro rata according to their respective
Revolving Loan Percentages a letter of credit fee for each Letter of Credit in
an amount equal to the Applicable Eurodollar Margin of the daily aggregate
Stated Amount of such Letter of Credit (excluding any unreimbursed payment or
disbursement thereunder).
(b) The Company agrees to pay to the Issuing Lender for its own account a
fronting fee in an amount equal to 0.25% per annum of the daily average of the
aggregate Stated Amount of each Letter of Credit (excluding any unreimbursed
payment or disbursement thereunder).
(c) The fees payable pursuant to clauses (a) and (b) above shall be
computed for the actual number of days elapsed on the basis of a year of 360
days and shall be payable in arrears on the last Business Day of each calendar
quarter and on the Revolving Termination Date for the period from and including
the date of the issuance of the applicable Letter of Credit to and including the
date such payment is due or, if earlier, the date on which such Letter of Credit
expired or was terminated.
(d) In addition, with respect to each Letter of Credit, the Company agrees
to pay to the Issuing Lender for its own account such fees and expenses as the
Issuing Lender customarily requires in connection with the issuance, amendment,
transfer, negotiation, processing and/or administration of letters of credit.
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5.3 Agent's Fees. The Company agrees to pay to the Agent such fees as are
mutually agreed upon by the Company and the Agent.
5.4 Arranger's Fee. The Company agrees to pay the Arranger such fees as
are mutually agreed upon by the Company and the Arranger.
SECTION 6 REDUCTION OR TERMINATION OF THE COMMITMENTS;
PREPAYMENTS.
6.1 Reduction or Termination of the Commitments.
6.1.1 Mandatory Reduction of Revolving Commitments. After the payment in
full of the Term Loans, the Revolving Commitments shall be permanently reduced
in an amount equal to the Designated Proceeds of any Mandatory Prepayment Event
in accordance with Section 6.2.1.
6.1.2 Voluntary Reduction or Termination of Revolving Commitments. The
Company may from time to time on at least three Business Days' prior written
notice received by the Agent (which shall promptly advise each Revolving Lender
thereof) permanently reduce the amount of the Revolving Commitments; provided,
that the Revolving Commitments may not be reduced to an amount which is less
than the sum of the aggregate principal amount of all outstanding Revolving
Loans plus the aggregate Stated Amount of all outstanding Letters of Credit. Any
such reduction shall be in an aggregate principal amount of at least $1,000,000
and shall result in the aggregate Revolving Commitments being an integral
multiple of $500,000. The Company may at any time on like notice terminate the
Revolving Commitments; provided, that in the case of the termination of the
Revolving Commitments, the Company shall concurrently pay in full all Revolving
Loans and all other then-payable obligations of the Company hereunder in respect
of the Revolving Commitments and shall cash collateralize in full, pursuant to
documentation reasonably satisfactory to the Issuing Lender, the Required
Revolving Lenders and the Agent, all obligations arising with respect to the
Letters of Credit.
6.1.3 Reductions Pro Rata. All reductions of the Revolving Commitments
shall be pro rata among the Revolving Lenders according to their respective
Percentages of the Revolving Commitments.
6.2 Prepayments.
6.2.1 Mandatory Prepayments. (a) If any of the following (each a
"Mandatory Prepayment Event") shall occur, the Company (or, in the case of
clause (iii), if the Agent is holding the proceeds of insurance or condemnation
as additional collateral pursuant to the terms of any Collateral Document, the
Agent) shall make a prepayment of the Term Loans at the following times and in
the following amounts and, after the Term Loans have been paid in full, the
Revolving Commitments
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shall be permanently reduced in accordance with Section 6.1.1 at the following
times and in the following amounts (such applicable amounts being referred to as
"Designated Proceeds"):
(i) Forthwith upon any Asset Sale that results in any Primary Cash
Proceeds, in an amount equal to 100% of such Primary Cash Proceeds.
(ii) Within 180 days after any Asset Sale that results in any Excess
Cash Proceeds, in an amount equal to 100% of the Excess Cash Proceeds
resulting from such Asset Sale; provided that the foregoing shall not
apply to Asset Sales the proceeds of which are used by the Company or any
of its Subsidiaries for the financing of productive assets to be used in
the business of the Company or such Subsidiary prior to or within 180 days
after any such Asset Sale.
(iii) Within 180 days after the receipt of any insurance or
condemnation proceeds (or other similar recoveries) in excess of $200,000
by the Company or any Subsidiary or by the Agent (to the extent the Agent
is holding the insurance or condemnation proceeds as additional collateral
pursuant to any provision of any Collateral Document) from any casualty
loss incurred by the Company or any Subsidiary or condemnation of
property, in an amount equal to 100% of such insurance or condemnation
proceeds (or other similar recoveries) net of any collection expenses;
provided that no such prepayment shall be required to the extent such
proceeds are used by the Company prior to or within 180 days after the
date of receipt of such proceeds for the financing of the replacement,
substitution or restoration of the assets sustaining such casualty loss or
condemnation.
(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 (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
50% of such Net Cash Proceeds.
(v) Concurrently with the receipt of any Net Cash Proceeds from the
issuance of any Other Debt of the Company or any Subsidiary in an amount
equal to 100% of such Net Cash Proceeds.
(vi) Within 90 days after the end of each Fiscal Year (commencing
with the Fiscal Year ending December 31, 1998), in an amount equal to 50%
of Excess Cash Flow for such Fiscal Year; provided that if the Leverage
Ratio as of the end of such Fiscal Year is less than 3.5:1.0, then the
amount of such required prepayment shall be zero.
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All prepayments of Term Loans pursuant to this Section 6.2.1 shall be applied to
the prepayment of the Term Loans pro rata among the Term A Loans and Term B
Loans, with application to the remaining installments of each on a pro rata
basis.
(b) If on any day the outstanding principal amount of all Revolving Loans
plus the Stated Amount of all outstanding Letters of Credit exceeds the
Revolving Commitments, 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.
6.2.2 Voluntary Prepayments. The Company may from time to time prepay the
Loans in whole or in part, without premium or penalty; provided that (a) the
Company shall give the Agent (which shall promptly advise each Lender)
irrevocable written notice substantially in the form of Exhibit M (or by
telephonic notice promptly followed by such notice), of such prepayment not
later than 11:00 A.M., Chicago time, on the Business Day of such prepayment, in
the case of prepayment of ABR Loans, and not less than three Business Days prior
to the day of such prepayment, in the case of prepayment of Eurodollar Loans, in
each case specifying the Loans to be prepaid and the date and amount of
prepayment, (b) any prepayment of a Eurodollar Loan prior to the end of an
Interest Period therefor shall be subject to Section 8.4, (c) each partial
prepayment shall be in a principal amount which is in a minimum principal amount
of $500,000 or a higher integral multiple of $100,000, (d) any prepayment of a
Eurodollar Loan shall include accrued interest to the date of prepayment on the
principal amount being prepaid and (e) any prepayment of Term Loans shall be
applied ratably to the Term A Loans and Term B Loans and shall be applied pro
rata to the remaining unpaid installments of each such Facility.
6.2.3 Application of Mandatory and Voluntary Prepayments among Term Loan
Facilities. Notwithstanding anything to the contrary in this Section 6.2, so
long as and to the extent that any Term A Loans are outstanding, if the Company
offers, at its option, to the Term B Lenders the right to waive any voluntary
prepayment or mandatory prepayment, each Term B Lender may, at its option,
decline the portion of any such prepayment applicable to the Term B Loans of
such Lender; accordingly, with respect to the amount of any mandatory prepayment
described in Section 6.2.1 or voluntary prepayment described in Section 6.2.2
that is allocated to Term B Loans (such amount, the "Term B Prepayment Amount"),
the Company will, in lieu of applying such amount to the prepayment of Term B
Loans, on the date specified in Section 6.2.1 for such mandatory prepayment (or
on the date specified by the Company with respect to any voluntary prepayment),
give the Agent telephonic notice (promptly confirmed in writing) requesting that
the Agent prepare and provide to each Term B Lender a notice (each, a
"Prepayment Option Notice") as described below. As promptly as practicable after
receiving such notice from the Company, the Agent will send to each Term B
Lender a Prepayment Option Notice, which shall be in the form of Exhibit O, and
shall include an offer by the Company to prepay on the date (each, a "Prepayment
Date") that is ten Business Days after the date of the Prepayment Option Notice,
the Term B Loans of such Lender by an amount equal to the Term B Prepayment
Amount specified in such Lender's Prepayment Option Notice. On the Prepayment
Date, (A) the Company shall pay to the Agent the aggregate
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amount necessary to prepay that portion of the outstanding Term B Loans in
respect of which Term B Lenders have accepted prepayment as described above
(such Lenders, the "Accepting Lenders"), and such amount shall be applied to
reduce the Term B Prepayment Amounts with respect to each Accepting Lender and
(B) the Company shall pay to the Agent an amount equal to the portion of the
Term B Prepayment Amount not accepted by the Term B Lenders, and such amount
shall be applied to the prepayment of the Term A Loans.
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF;
TAXES.
7.1 Making of Payments. All payments of principal of or interest on the
Loans, and of all fees, shall be made by the Company to the Agent in immediately
available funds at its payment office in Concord, California not later than
noon, Chicago time, on the date due; and funds received after that hour shall be
deemed to have been received by the Agent on the next following Business Day.
The Agent shall promptly remit to each Lender its share of all such payments
received in collected funds by the Agent for the account of such Lender.
All payments under Sections 8.1 and 8.4 shall be made by the Company
directly to the Lender or Lenders entitled thereto.
7.2 Application of Certain Payments. Each payment of principal shall be
applied to such Loans as the Company shall direct by written notice to be
received by the Agent on or before the date of such payment or, in the absence
of such notice, as the Agent shall determine in its reasonable discretion.
Concurrently with each remittance to any Lender of its share of any such
payment, the Agent shall advise such Lender as to the application of such
payment.
7.3 Due Date Extension. If any payment of principal or interest with
respect to any of the Loans, or of any fees, falls due on a day which is not a
Business Day, then (subject to the last paragraph of Section 4.3) such due date
shall be extended to the immediately following Business Day and, in the case of
principal, additional interest shall accrue and be payable for the period of any
such extension.
7.4 Setoff. The Company agrees that the Agent and each Lender have all
rights of set-off and bankers' lien provided by applicable law, and in addition
thereto, the Company agrees that at any time (i) any payment or other amount
owing by the Company under this Agreement is then due to the Agent or any Lender
or (ii) any Unmatured Event of Default under Section 12.1.4 or any Event of
Default exists, the Agent and each Lender may apply to the payment of such
payment or other amount (or, in the case of clause (ii), to any of the
obligations of the Company hereunder, whether or not then due) any and all
balances, credits, deposits, accounts or moneys of the Company then or
thereafter with the Agent or such Lender. The Agent and each Lender agree to
give prompt notice to the Company of any exercise of rights pursuant to this
Section 7.4, but no failure to give such notice shall affect the validity of any
such exercise.
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7.5 Proration of Payments. Except to the extent that this Agreement
provides for payments to be allocated to the Lenders under a particular
Facility, if any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise) on account of
principal of or interest on any Loan (or on account of its participation in any
Letter of Credit) in excess of its pro rata share of payments and other
recoveries obtained by all Lenders on account of principal of and interest on
Loans (or such participations) then held by them (other than in respect of an
Affected Loan or as a result of replacement of a Lender pursuant to Section
8.7), such Lender shall purchase from the other Lenders such participations in
the Loans (or sub-participations in the Letters of Credit) held by them as shall
be necessary to cause such purchasing Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery.
7.6 Net Payments; Tax Exemptions. (a) All payments by the Company of
principal, interest, fees, indemnities and other amounts payable hereunder and
under the Notes shall be made to the recipient thereof without setoff or
counterclaim and free and clear of, and without withholding or deduction for or
on account of, any present or future Taxes (other than Excluded Taxes) now or
hereafter imposed on such recipient or its income, property, assets or
franchises (such recipient's "Recipient Taxes"), except to the extent that such
withholding or deduction (i) is required by applicable law, (ii) results from
the breach by such recipient of its Exemption Agreement (as defined below) or
(iii) would not be required if such recipient's Exemption Representation (as
defined below) were true. If any such withholding or deduction is required by
applicable law, the Company will:
(A) pay to the relevant authorities the full amount so required to
be withheld or deducted;
(B) promptly forward to the Agent (or, in the case of any
indemnification or other payment made directly to a recipient (the "Direct
Recipient") other than the Agent, to the Direct Recipient) an official
receipt or other documentation satisfactory to the Agent (or the Direct
Recipient) evidencing such payment to such authorities; and
(C) except to the extent that such withholding or deduction results
from the breach, by the recipient of a payment, of its Exemption Agreement
or would not be required if such recipient's Exemption Representation were
true, pay to the Agent (or the Direct Recipient) for the account of the
relevant recipient such additional amount as is necessary to ensure that
the net amount actually received by such recipient will equal the full
amount such recipient would have received had no such withholding or
deduction been required.
For purposes of this Section 7.6, (1) "Taxes" means, with respect to any Person,
taxes, assessments or other governmental charges or levies imposed upon such
Person, such Person's income or any of such Person's properties, franchises or
assets; and (2) "Excluded Taxes" means, in the case of payments made to any
Lender or the Agent, all of the following: taxes imposed upon the overall net
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income of such Person, franchise taxes imposed upon such Person with respect to
its net income by the jurisdiction under the laws of which such Person is
organized or any political subdivision thereof, and franchise taxes imposed upon
such Person with respect to its net income by the jurisdiction in which such
Person's Eurodollar Office is located or any political subdivision thereof.
(b) In consideration of the Company's agreements in clause (a) of this
Section 7.6, each Lender which is a "foreign corporation, partnership or trust"
within the meaning of the Code hereby agrees (such Lender's "Exemption
Agreement") to provide to the Company the same forms required to be provided to
the Agent pursuant to Section 13.10 at the same time such forms are provided to
the Agent.
(c) Each Lender hereby represents and warrants (such Lender's "Exemption
Representation") to the Company that on the Effective Date (or, if later, the
date such Lender becomes a party to this Agreement) it is entitled to receive
payments of principal of, and interest on, Loans made by such Lender without
withholding or deduction for or on account of such Lender's Recipient Taxes
imposed by the United States of America or any political subdivision thereof.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR
EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any Eurodollar Office of such Lender)
with any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(A) shall subject any Lender (or any Eurodollar Office of such
Lender) to any tax, duty or other charge with respect to its Eurodollar
Loans, its Note or its obligation to make Eurodollar Loans, or shall
change the basis of taxation of payments to any Lender of the principal of
or interest on its Eurodollar Loans or any other amounts due under this
Agreement in respect of its Eurodollar Loans or its obligation to make
Eurodollar Loans (except for changes in the rate of tax on the overall net
income of such Lender or its Eurodollar Office imposed by the jurisdiction
in which such Lender's principal executive office or Eurodollar Office is
located); or
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to Section 4), special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by any Lender (or any Eurodollar Office of such
Lender); or
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(C) shall impose on any Lender (or its Eurodollar Office) any other
condition affecting its Eurodollar Loans, its Note or its obligation to
make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D of the Board of Governors of the Federal Reserve System, to
impose a cost on) such Lender (or any Eurodollar Office of such Lender) of
making or maintaining any Eurodollar Loan, or to reduce the amount of any sum
received or receivable by such Lender (or its Eurodollar Office) under this
Agreement or under its Note with respect thereto, then within 10 days after
demand by such Lender (which demand shall be accompanied by a statement setting
forth in reasonable detail the basis for and a calculation of the amount of such
demand, a copy of which shall be furnished to the Agent), the Company shall pay
directly to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or such reduction.
(b) If any Lender shall reasonably determine that the adoption or phase-in
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Eurodollar Office) or any Person controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's or such controlling
Person's capital as a consequence of such Lender's obligations hereunder
(including, without limitation, such Lender's Commitment) to a level below that
which such Lender or such controlling Person could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or such
controlling Person's policies with respect to capital adequacy) by an amount
deemed by such Lender or such controlling Person to be material, then from time
to time, within 10 days after demand by such Lender (which demand shall be
accompanied by a statement setting forth in reasonable detail the basis for and
a calculation of the amount of such demand, a copy of which shall be furnished
to the Agent), the Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling Person for such
reduction.
8.2 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to the Agent in the interbank eurodollar market for such Interest
Period, or the Agent otherwise reasonably determines (which determination
shall be binding and conclusive on the Company) that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable Eurodollar
Rate; or
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(b) Lenders having a pro rata share of 25% or more of the Loans to
be made for such Interest Period advise the Agent that the Eurodollar Rate
(Reserve Adjusted) as determined by the Agent will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding such
Loans for such Interest Period (taking into account any amount to which
such Lenders may be entitled under Section 8.1), or that the making or
funding of Eurodollar Loans has become impracticable as a result of an
event occurring after the date of this Agreement which in the opinion of
such Lenders materially affects such Loans;
then the Agent shall promptly notify the other parties thereof and, so long as
such circumstances shall continue, (i) no Lender shall be under any obligation
to make or convert into Eurodollar Loans and (ii) on the last day of the current
Interest Period for each Eurodollar Loan, such Loan shall, unless then repaid in
full, automatically convert to an ABR Loan.
8.3 Changes in Law Rendering Eurodollar Loans Unlawful. In the event that
any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it (or in the good faith judgment of any
Lender cause a substantial question as to whether it is) unlawful for any Lender
to make, maintain or fund Eurodollar Loans, then such Lender shall promptly
notify each of the other parties hereto and, so long as such circumstances shall
continue, (a) such Lender shall have no obligation to make or convert into
Eurodollar Loans (but shall make ABR Loans concurrently with the making of or
conversion into such Eurodollar Loans by the Lenders which are not so affected,
in each case in an amount equal to such Lender's applicable Percentage of all
Eurodollar Loans which would be made or converted into at such time in the
absence of such circumstances) and (b) on the last day of the current Interest
Period for each Eurodollar Loan of such Lender (or, in any event, on such
earlier date as may be required by the relevant law, regulation or
interpretation), such Eurodollar Loan shall, unless then repaid in full,
automatically convert to an ABR Loan. Each ABR Loan made by a Lender which, but
for the circumstances described in the foregoing sentence, would be a Eurodollar
Loan (an "Affected Loan") shall remain outstanding for the same period as the
Group of Eurodollar Loans of which such Affected Loan would be a part absent
such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon demand by any
Lender (which demand shall be accompanied by a statement setting forth the basis
for the calculations of the amount being claimed, a copy of which shall be
furnished to the Agent) the Company will indemnify such Lender against any net
loss or expense which such Lender may sustain or incur (including, without
limitation, any net loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain any Eurodollar Loan), as reasonably determined by such Lender, as a
result of (a) any payment or prepayment or conversion of any Eurodollar Loan of
such Lender on a date other than the last day of an Interest Period for such
Loan (including, without limitation, any conversion pursuant to Section 8.3) or
(b) any failure of the Company to borrow or convert any Loan on a date specified
therefor in a notice of borrowing or
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conversion pursuant to this Agreement. For this purpose, all notices to the
Agent pursuant to this Agreement shall be deemed to be irrevocable.
8.5 Right of Lenders to Fund through Other Offices. Each Lender may, if it
so elects, fulfill its commitment as to any Eurodollar Loan by causing a foreign
branch or affiliate of such Lender to make such Loan; provided that in such
event for the purposes of this Agreement such Loan shall be deemed to have been
made by such Lender and the obligation of the Company to repay such Loan shall
nevertheless be to such Lender and shall be deemed held by it, to the extent of
such Loan, for the account of such branch or affiliate.
8.6 Discretion of Lenders as to Manner of Funding. Notwithstanding any
provision of this Agreement to the contrary, each Lender shall be entitled to
fund and maintain its funding of all or any part of its Loans in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if such Lender had actually funded
and maintained each Eurodollar Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
8.7 Mitigation of Circumstances; Replacement of Affected Lender. (a) Each
Lender shall promptly notify the Company and the Agent of any event of which it
has knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender's good faith judgment, otherwise
disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the
Company to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence
of any circumstances of the nature described in Section 8.2 or 8.3 (and, if any
Lender has given notice of any such event described in clause (i) or (ii) above
and thereafter such event ceases to exist, such Lender shall promptly so notify
the Company and the Agent). Without limiting the foregoing, each Lender will
designate a different funding office if such designation will avoid (or reduce
the cost to the Company of) any event described in clause (i) or (ii) of the
preceding sentence and such designation will not, in such Lender's sole
judgment, be otherwise disadvantageous to such Lender.
(b) At any time any Lender is an Affected Lender, the Company may (and
BofA agrees that it will use reasonable efforts to help the Company to) replace
such Affected Lender as a party to this Agreement with one or more other bank(s)
or financial institution(s) reasonably satisfactory to the Agent, such bank(s)
or financial institution(s) to have Commitments in such amounts as shall be
reasonably satisfactory to the Agent and the Issuing Lender (and upon notice
from the Company such Affected Lender shall assign pursuant to an Assignment
Agreement, and without recourse or warranty, its Commitments, its Loans, its
Note, its participation in Letters of Credit and all of its other rights and
obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the principal amount of
the Loans so assigned, all accrued and unpaid interest thereon, its ratable
share of all accrued and unpaid non-use fees and Letter of Credit fees, any
amounts payable under Section 8.4 as a result of such Lender receiving payment
of
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any Eurodollar Loan prior to the end of an Interest Period therefor and all
other obligations owed to such Affected Lender hereunder).
8.8 Conclusiveness of Statements; Survival of Provisions. Determinations
and statements of any Lender pursuant to Section 8.1, 8.2, 8.3 or 8.4 shall be
conclusive absent demonstrable error. Lenders may use reasonable averaging and
attribution methods in determining compensation under Sections 8.1 and 8.4, and
the provisions of such Sections shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
SECTION 9 WARRANTIES.
To induce the Agent and the Lenders to enter into this Agreement and to
induce the Lenders to make Loans and to issue or participate in Letters of
Credit hereunder, the Company warrants to the Agent and the Lenders that:
9.1 Organization, etc. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
each Subsidiary is duly organized and validly existing under the laws of the
state of its organization; and the Company and each Subsidiary is duly qualified
to do business in each other jurisdiction where the nature of its business makes
such qualification necessary, except where such failure to so qualify would not
have a Material Adverse Effect.
9.2 Authorization; No Conflict. The execution and delivery by the Company
of this Agreement and each other Loan Document to which it is a party, the
borrowings hereunder, the execution by each Guarantor of each Loan Document to
which it is a party and the performance by the Company and each Guarantor of its
obligations under each Loan Document to which it is a party are within the
corporate powers of the Company and each Guarantor, have been duly authorized by
all necessary corporate action on the part of the Company and each Guarantor
(including any necessary shareholder action), have received all necessary
governmental approval and do not and will not (a) violate 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, (b)
contravene or conflict with, or result in a breach of, any provision of the
certificate or articles of incorporation, by-laws or other organizational
documents of the Company or any Guarantor or any of their respective
Subsidiaries or of any agreement, indenture, instrument or other document which
is binding on the Company or any Guarantor or any of their respective
Subsidiaries or (c) result in, or require, the creation or imposition of any
Lien on any property of the Company or any Guarantor or any of their respective
Subsidiaries (other than Liens created under the Loan Documents).
9.3 Validity and Binding Nature. This Agreement is, and upon the execution
and delivery thereof each other Loan Document to which the Company is a party
will be, the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms,
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subject to bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
9.4 Financial Information. The audited consolidated financial statements
of the Company as at December 31, 1997 and the unaudited consolidated financial
statements of the Company as at April 30, 1998, copies of which have been
furnished to the Lenders, have been prepared in accordance with generally
accepted accounting principles (subject, in the case of the unaudited
statements, to the absence of footnotes and to normal year-end adjustments) and
fairly present the financial condition of the Company and its Subsidiaries as of
such dates and the results of their operations for the Fiscal Year and fiscal
period then ended, respectively. To the best of the Company's knowledge, the
Company and its Subsidiaries have, on the date hereof and the Effective Date, no
liability (contingent or otherwise) or unusual or long-term commitment which
could have a Material Adverse Effect and which is not reflected in the financial
statements referred to in the immediately preceding sentence.
9.5 No Material Adverse Change. Since December 31, 1997, there has been no
event or occurrence which has had or is reasonably likely to have a Material
Adverse Effect (other than any such event or occurrence which has been waived in
writing by the Required Lenders).
9.6 Litigation and Contingent Liabilities. Except as set forth on Item 9.6
("Litigation, etc.") of Schedule II, no litigation (including, without
limitation, derivative actions), arbitration proceeding or governmental
proceeding is pending or, to the Company's knowledge, threatened against the
Company or any Subsidiary which, if adversely decided, is reasonably likely to
result, either individually or collectively, in a Material Adverse Effect. Other
than any liability incident to such litigation or proceedings, neither the
Company nor any Subsidiary has any material contingent liabilities not provided
for or disclosed in the financial statements referred to in Section 9.4 or set
forth on Item 9.6 ("Litigation, etc.") of Schedule II.
9.7 Ownership of Properties; Liens. Each of the Company and each
Subsidiary owns good and marketable title to, or a valid leasehold interest in,
all properties and assets which are material to its business, real and personal,
tangible and intangible, of any nature whatsoever, in each case free and clear
of all Liens, except as permitted pursuant to Section 10.9.
9.8 Subsidiaries. Set forth on Item 9.8 ("Subsidiaries") of Schedule II is
a complete and accurate list, as of the Effective Date, of the name and
jurisdiction of organization of each Subsidiary of the Company, the number of
outstanding shares of stock of each such Subsidiary, and the percentage
ownership interest of the Company and its other Subsidiaries in each such
Subsidiary.
9.9 Pension and Welfare Plans. Except as set forth on Item 9.9 ("Pension
and Welfare Plans") of Schedule II, during the twelve-consecutive-month period
prior to the date of the execution and delivery of this Agreement or the making
of any Loan hereunder, no steps have been taken to terminate any Pension Plan,
and no contribution failure has occurred with respect to any Pension
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Plan sufficient to give rise to a lien under Section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which could result in the incurrence by the Company of any material
liability, fine or penalty. The Company has no contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of subtitle B of title I of ERISA.
9.10 Regulated Industry. Neither the Company nor any Subsidiary is (a) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, or (b) a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
9.11 Regulations G, U and X. Neither the Company nor any Subsidiary is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Loan will be used for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any Margin Stock or maintaining or
extending credit to others for such purpose.
9.12 Taxes. Each of the Company and each Subsidiary has filed all material
tax returns and reports required by law to have been filed by it and has paid
all taxes and governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on its books.
9.13 Environmental Matters. Except as set forth in Item 9.13
("Environmental Matters") of Schedule II:
(a) all facilities and property (including underlying groundwater)
owned or leased by the Company or any of its Subsidiaries have been, and
continue to be, owned or leased by the Company and its Subsidiaries in
material compliance with all Environmental Laws;
(b) there have been no past, and (to the best of the Company's
knowledge) there are no pending or threatened,
(i) claims, complaints, notices or requests for information
received by the Company or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Company or any of
its Subsidiaries regarding potential liability under any
Environmental Law,
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which, singly or in the aggregate, have had, or may reasonably be expected
to have, a Material Adverse Environmental Impact;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Company or any
of its Subsidiaries that, singly or in the aggregate, have had, or may
reasonably be expected to have, a Material Adverse Effect;
(d) the Company and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses
and other authorizations relating to environmental matters and necessary
or desirable for their businesses;
(e) no property now or previously owned or leased by the Company or
any of its Subsidiaries is listed or (to the best of the Company's
knowledge with respect to owned property only) proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Company or any of its Subsidiaries that,
singly or in the aggregate, have had, or may reasonably be expected to
have, a Material Adverse Effect;
(g) neither the Company nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or, to the best of the Company's
knowledge, proposed for listing on the National Priorities List pursuant
to CERCLA, on the CERCLIS or on any similar state list or which is the
subject of federal, state or local enforcement actions or other
investigations which may lead to material claims against the Company or
such Subsidiary for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Company
or any of its Subsidiaries that, singly or in the aggregate, have had, or
may reasonably be expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Company or any of its Subsidiaries
which, with the passage of time or the giving of notice or both, would
give rise to liability under any Environmental Law which, singly or in the
aggregate, have had, or may reasonably be expected to have, a Material
Adverse Environmental Impact.
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9.14 Compliance with Law. Each of the Company and each Subsidiary is in
compliance with all statutes, judicial and administrative orders, permits and
governmental rules and regulations which are material to its business or the
non-compliance with which could result in any material fine, penalty or
liability.
9.15 Information. All written information heretofore or contemporaneously
herewith furnished by the Company or any Subsidiary to any Lender for purposes
of or in connection with this Agreement and the transactions contemplated hereby
is, and all information hereafter furnished by or on behalf of the Company or
any Subsidiary to any Lender pursuant hereto or in connection herewith will be,
true and accurate in every material respect on the date as of which such
information is dated or certified, and such information, taken as a whole, does
not and will not omit to state any material fact necessary to make such
information, taken as a whole, not misleading.
9.16 Insurance. Set forth on Item 9.16 ("Insurance") of Schedule II is a
complete and accurate summary of the property and casualty insurance program of
the Company and its Subsidiaries as of the Effective Date (including the names
and Best's rating of all insurers, policy numbers, expiration dates, amounts and
types of coverage, annual premiums, exclusions, deductibles, self-insured
retention, and a description in reasonable detail of any self-insurance program,
retrospective rating plan, fronting arrangement or other risk assumption
arrangement involving the Company or any Subsidiary).
9.17 Solvency, etc. On the Effective Date (or, in the case of any Person
which becomes a Guarantor after the Effective Date, on the date such Person
becomes a Guarantor), and immediately prior to and after giving effect to each
borrowing hereunder and the use of the proceeds thereof, (a) each of the
Company's and each Guarantor's assets will exceed its liabilities and (b) each
of the Company and each Guarantor will be solvent, will be able to pay its debts
as they mature, will own assets with present fair saleable value greater than
the amount required to pay its probable liability on its existing debts as they
mature and will have capital sufficient to carry on its business as then
constituted.
9.18 Real Property. Set forth on Item 9.18 ("Real Property") of Schedule
II is a complete and accurate list, as of the Effective Date, of the address of
all real property owned or leased by the Company or any Subsidiary, together
with, in the case of leased real property, the name and mailing address of the
lessor of such property.
9.19 Merger, Subordinated Notes, etc. (a) The Merger and the issuance and
sale of the 1998 Subordinated Notes will comply with all requirements of law
(including, without limitation, the Securities Act of 1933, as amended), and all
necessary governmental, regulatory, shareholder and other consents and approvals
required for the consummation of the Merger and the issuance and sale of the
1998 Subordinated Notes were, prior to the consummation thereof, duly obtained
and in full force and effect. All applicable waiting periods with respect to the
Merger and the issuance and sale of the 1998 Subordinated Notes have expired
without any action being taken by any competent
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Governmental Authority which restrains, prevents or imposes material adverse
conditions upon the consummation of any such transaction.
(b) The execution and delivery of the Merger Agreement and the issuance
and sale of the 1998 Subordinated Notes did not, and the consummation of the
Merger will not, violate any requirement of law, or result in a breach of, or
constitute a default under, any contractual obligation affecting the Company or
any of its Subsidiaries which, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
(c) There does not exist any judgment, order or injunction prohibiting or
imposing material adverse conditions upon the consummation of the Merger and the
issuance and sale of the 1998 Subordinated Notes.
(d) All of the representations and warranties of the Company,
AcquisitionCo and, to the Company's knowledge, Monroc contained in the Merger
Agreement are true and correct in all material respects as of the date hereof.
(e) All of the representations and warranties of the Company set forth in
the Note and Warrant Purchase Agreement are true and correct in all material
respects as of the date hereof.
9.20 Intellectual Property. The Company and each of its Subsidiaries owns
and possesses or has a license or other right to use all such patents, patent
rights, trademarks, trademark rights, trade names, trade name rights, service
marks, service ▇▇▇▇ rights and copyrights as are necessary for the conduct of
the business of the Company and its Subsidiaries, without any infringement upon
rights of others which could reasonably be expected to have a Material Adverse
Effect.
9.21 Burdensome Obligations. Neither the Company nor any of its
Subsidiaries is a party to any agreement or contract or subject to any charter
or corporate restriction which would reasonably be expected to have a Material
Adverse Effect.
9.22 Senior Debt. The obligations of the Company hereunder constitute
"Senior Debt" under and as defined in the documents governing the 1996
Subordinated Notes and the 1998 Subordinated Notes. The obligations of each
Guarantor under the Guaranty constitute "Guarantor Senior Debt" under and as
defined in each such Guarantor's guaranty of the 1996 Subordinated Notes and the
1998 Subordinated Notes.
SECTION 10 COVENANTS.
Until the expiration or termination of the Commitments and thereafter
until all obligations (other than Surviving Obligations) hereunder and under the
Notes are paid in full and all Letters of Credit have terminated, the Company
agrees that, unless at any time the Required Lenders shall otherwise expressly
consent in writing, it will:
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10.1 Reports, Certificates and Other Information. Furnish to each Lender:
10.1.1 Audit Report. Promptly when available and in any event within 120
days after the close of each Fiscal Year, a copy of the annual audit report of
the Company and its Subsidiaries for such Fiscal Year, including therein
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of earnings and cash flows of the
Company and its Subsidiaries for such Fiscal Year certified, without
qualification as to going concern or scope, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. LLP or
other independent auditors of recognized standing selected by the Company and
reasonably acceptable to the Required Lenders together with a certificate from
such accountants to the effect that, in making the examination necessary for the
signing of such annual report by such auditors, they have not become aware of
any Event of Default or Unmatured Event of Default that has occurred and is
continuing or, if they have become aware of any such event, describing it in
reasonable detail.
10.1.2 Interim Reports. Promptly when available and (i) in any event
within 30 days after the end of each month, consolidated balance sheets of the
Company and its Subsidiaries as of the end of such month, and consolidated
statements of earnings and cash flows for such month and for the period
beginning with the first day of the applicable Fiscal Year and ending on the
last day of such month, including a comparison with the corresponding month and
period of the previous Fiscal Year and a comparison with the budget for such
month and for such period of the current Fiscal Year, together with a
certificate of the President or the chief financial officer of the Company to
the effect that such financial statements fairly present the financial condition
and results of operations of the Company and its Subsidiaries as of the date and
periods indicated (subject to normal year-end adjustments and the absence of
footnotes) and (ii) in any event within 30 days after the end of each Fiscal
Quarter, consolidating balance sheets of the Company and its Subsidiaries as of
the end of such Fiscal Quarter and consolidating statements of earnings and cash
flows of the Company and its Subsidiaries for the period from the end of the
last Fiscal Year to the end of such Fiscal Quarter, certified by the President
or the chief financial officer of the Company to the effect that such
consolidating financial statements fairly present the financial condition and
results of operations of the Company and its Subsidiaries.
10.1.3 Compliance Certificate. Concurrently with each set of financial
statements delivered pursuant to Sections 10.1.1 and 10.1.2, a certificate of
the President or the chief financial officer of the Company (a) to the effect
that such officer is not aware of any Event of Default or Unmatured Event of
Default that has occurred and is continuing or, if there is any such event,
describing it in reasonable detail and (b) in the case of any financial
statements relating to the last day of a Fiscal Quarter or Fiscal Year, a
certificate, substantially in the form of Exhibit I (a "Compliance
Certificate"), containing a computation of each of the financial ratios and
restrictions set forth in Section 10.6.
10.1.4 Reports to SEC. Promptly upon the filing or sending thereof, a copy
of (a) any annual, periodic or special report or registration statement
(inclusive of exhibits thereto) filed by the
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Company or any Subsidiary with the SEC or any securities exchange and (b) any
annual, periodic or special report to the Company's shareholders.
10.1.5 Notice of Default, Litigation and ERISA Matters. Immediately upon
becoming aware of any of the following, written notice describing the same and
the steps being taken by the Company or the Subsidiary affected thereby with
respect thereto: (a) the occurrence of an Event of Default or an Unmatured Event
of Default; (b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Company to the Lenders which has been
instituted or, to the knowledge of the Company, is threatened against the
Company or any Subsidiary or to which any of the properties of any thereof is
subject which, if adversely determined, is reasonably likely to have a Material
Adverse Effect; (c) the institution of any steps by the Company, any of its
Subsidiaries or any other Person to terminate any Pension Plan, or the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a lien under Section 302(f) of ERISA, or the taking
of any action with respect to a Pension Plan which could result in the
requirement that the Company furnish a bond or other security to the PBGC or
such Pension Plan, or the occurrence of any event with respect to any Pension
Plan which could result in the incurrence by the Company of any material
liability, fine or penalty, or any material increase in the contingent liability
of the Company with respect to any post-retirement Welfare Plan benefit; and (d)
any other event or occurrence which has had or is reasonably likely to have a
Material Adverse Effect.
10.1.6 Subsidiaries. Promptly from time to time a written report of any
change in the list of its Subsidiaries.
10.1.7 Management Reports. Promptly from time to time, copies of all
detailed financial and management reports submitted to the Company or any
Subsidiary by independent auditors in connection with each annual or interim
audit made by such auditors of the books of the Company or any Subsidiary.
10.1.8 Projections. As soon as practicable and in any event within 30 days
after the commencement of each Fiscal Year, a budget on a monthly basis for such
Fiscal Year prepared by the Company, including, without limitation, projected
income statements, balance sheets, statements of cash flows and pro forma
calculations of the covenants set forth in Section 10.6 as of the end of each
such month (or, in the case of the pro forma covenant calculations, the end of
each quarter) of such following Fiscal Year.
10.1.9 Insurance Information. Not later than 90 days after the end of each
Fiscal Year, a complete and accurate summary of the property and casualty
insurance program of the Company, containing substantially the same information
with respect to such insurance program as the information set forth on Item 9.16
of Schedule II; and promptly upon the occurrence thereof, a written report of
any change in the Company's insurance program which will materially reduce the
amount or scope of coverage.
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10.1.10 Subordinated Debt Notices. Promptly from time to time, copies of
any notices (including, without limitation, notices of default or acceleration)
received from any holder or trustee of, under or with respect to any
Subordinated Debt.
10.1.11 Other Information. From time to time such other information
concerning the Company and its Subsidiaries as any Lender or the Agent may
reasonably request.
10.2 Books, Records and Inspections. (a) Keep, and cause each Subsidiary
to keep, its books and records reflecting all of its business affairs and
transactions in accordance with sound business practices sufficient to allow the
preparation of financial statements in accordance with GAAP; and (b) permit, and
cause each Subsidiary to permit, any Lender or the Agent or any representative
thereof, at reasonable times and on reasonable notice (or at any time without
notice if an Event of Default exists), to visit any or all of its offices, to
discuss its financial matters with its officers and its independent auditors
(and the Company hereby authorizes such independent auditors to discuss such
financial matters with any Lender or the Agent or any representative thereof),
and to examine (and, at the Company's or such Subsidiary's expense, make copies
of) any of its books or other corporate records.
10.3 Insurance. Maintain, and cause each Subsidiary to maintain, with
responsible and financially-sound insurance companies or associations (rated at
least "A" by A.M. Best & Co.), insurance in such amounts and covering such risks
as is usually maintained by companies engaged in similar businesses and owning
similar properties similarly situated (and, in any event, such insurance as may
be required by any law, governmental regulation or judicial order); and, upon
request of the Agent or any Lender, furnish to the Agent or such Lender a
certificate describing in reasonable detail the nature and extent of the
insurance maintained by the Company and its Subsidiaries.
10.4 Compliance with Law; Payment of Obligations. (a) Comply, and cause
each Subsidiary to comply, in all material respects with all applicable laws,
rules, regulations and orders; (b) pay, and cause each Subsidiary to pay, prior
to delinquency, all taxes and other governmental charges against it or any of
its property, provided, however, that the foregoing shall not require the
Company or any Subsidiary to pay any such tax or charge so long as it shall
contest the validity thereof in good faith by appropriate proceedings and shall
set aside on its books adequate reserves with respect thereto; and (c) pay and
perform, and cause each Subsidiary to pay and perform, all of its material
obligations under each contract or agreement to which the Company or such
Subsidiary is a party, or by which the assets of the Company or such Subsidiary
are bound, if the failure to so pay or perform would be reasonably likely to
have a Material Adverse Effect.
10.5 Maintenance of Existence, etc. Maintain and preserve, and (subject to
Section 10.7) cause each Subsidiary to maintain and preserve, (a) its existence
and good standing in the jurisdiction of its organization, (b) its foreign
qualification in each other jurisdiction where the nature of its business makes
such qualification necessary (except in those instances in which the failure to
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be qualified or in good standing will not have a Material Adverse Effect) and
(c) all authorizations, rights, licenses and franchises held by the Company or
such Subsidiary, except where the failure to maintain and preserve such
authorizations, rights, licenses and franchises would not be reasonably likely
to have a Material Adverse Effect.
10.6 Financial Ratios and Restrictions.
10.6.1 Interest Coverage Ratio. Not permit the Interest Coverage Ratio for
any Computation Period to be less than the ratio set forth below for such
Computation Period:
Computation
Period Ending Ratio
------------- -----
Effective Date - 6/30/98 2.00:1
9/30/98 - 6/30/99 2.25:1
9/30/99 - 6/30/01 2.50:1
9/30/01 and thereafter 3.00:1.
10.6.2 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage
Ratio for any Computation Period to be less than 1.10 to 1.00.
10.6.3 Leverage Ratio. Not permit the Leverage Ratio as of the last day of
any Computation Period to be greater than the ratio set forth below for such
Computation Period:
Computation
Period Ending Ratio
------------- -----
Effective Date - 6/30/98 5.50:1
9/30/98 4.75:1
12/31/98 - 6/30/99 4.50:1
9/30/99 - 6/30/00 4.00:1
9/30/00 - 6/30/01 3.50:1
9/30/01 and thereafter 3.00:1.
10.7 Mergers, Consolidations, Purchases and Sales. Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, or purchase or
otherwise acquire all or substantially all of the assets or any stock of any
class of, or any partnership or joint venture interest in, any other Person (or
any business unit of any other Person), or, except in the ordinary course of its
business, sell, transfer, convey or lease all or any substantial part of its
assets, or sell or assign with or without recourse any receivables, except for
(i) any such merger or consolidation, sale, transfer, conveyance, lease or
assignment of or by any Subsidiary into, with or to the Company or into, with or
to any wholly-owned Subsidiary; (ii) any such purchase or other acquisition by
the Company or any
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Subsidiary of the assets or stock of any wholly-owned Subsidiary; (iii) any
Subsidiary which is wholly-owned by another Subsidiary may merge with such other
Subsidiary; (iv) Investments (including Investments by way of merger) permitted
by Section 10.10; (v) sales of inventory and dispositions of obsolete, unused,
surplus or unnecessary equipment, in each case in the ordinary course of
business; and (vi) any other Asset Sale (including the stock of any Subsidiary)
so long as (a) at least 85% of the proceeds of such Asset Sale are in cash, (b)
the aggregate Net Cash Proceeds from all such Asset Sales during the term of
this Agreement do not exceed the Maximum Proceeds Amount and (c) the proceeds
thereof are applied as provided in Section 6.2.1; provided that no action
otherwise permitted by clause (i), (ii) or (vi) above shall be permitted at any
time if an Event of Default or Unmatured Event of Default exists or would result
therefrom.
10.8 Debt. Not, and not permit any Subsidiary to, create, incur, assume or
suffer to exist any Debt, except: (i) Debt hereunder; (ii) Debt existing on the
Effective Date and listed on Item 10.8 ("Debt") of Schedule II (provided that
all Debt listed under the heading "Debt to be Repaid" shall be paid in full on
or prior to the Effective Date); (iii) Debt of the Company to any Subsidiary and
of any Subsidiary to the Company or any other Subsidiary (provided that if any
such Debt is evidenced by a promissory note, such note shall have been pledged
to the Agent pursuant to the Security Agreement); (iv) Debt under Capital Leases
to the extent permitted by Section 10.12; (v) Debt incurred in connection with
Liens permitted by Section 10.9; (vi) (x) the 1996 Subordinated Notes and the
1998 Subordinated Notes and Suretyship Liabilities of Subsidiaries of the
Company in respect of each thereof that are subordinated to the obligations of
the Guarantors under the Guaranty in a manner satisfactory to the Agent and (y)
other Subordinated Debt (provided, that the aggregate principal amount of
Subordinated Acquisition Debt outstanding during the term of this Agreement
shall not exceed $10,000,000); (vii) Debt incurred or assumed in connection with
Investments permitted by clauses (k) and (m) of Section 10.10; (viii) the
Company and its Subsidiaries may guaranty obligations of their respective
Subsidiaries arising under contracts entered into in the ordinary course of
business; (ix) the ▇▇▇▇▇▇ Note; and (x) other Debt not exceeding in the
aggregate $5,000,000.
10.9 Liens. Not, and not permit any Subsidiary to, create or permit to
exist any Lien on any of its real or personal properties, assets or rights of
whatsoever nature, whether now owned or hereafter acquired, except: (a) Liens
for taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate
proceedings and, in each case, for which it maintains adequate reserves; (b)
Liens arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by law
and (ii) Liens incurred in connection with worker's compensation, unemployment
compensation and other types of social security (excluding Liens arising under
ERISA) or in connection with surety and appeal bonds, bids, performance bonds
and similar obligations) for sums not overdue or being contested in good faith
by appropriate proceedings and not involving any deposits or advances or
borrowed money or the deferred purchase price of property or services, and, in
each case, for which it maintains adequate reserves; (c) Liens identified on
Item 10.9 ("Liens") of Schedule II; (d) Liens in connection with Capital Leases
(to the
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extent permitted hereunder); (e) any Lien arising in connection with the
acquisition of property after the date hereof, and attaching only to the
property being acquired, provided that the aggregate amount of all Debt secured
by such Liens shall not exceed $5,000,000; (f) attachments, judgments and other
similar Liens, for sums not exceeding $1,000,000, arising in connection with
court proceedings (provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively contested
in good faith and by appropriate proceedings); (g) other Liens incidental to the
conduct of the business of the Company or a Subsidiary or the ownership of its
property or assets, including easements, rights of way, restrictions, minor
defects or irregularities in title and other similar Liens, which Liens were not
incurred in connection with the borrowing of money and do not, in any case or in
the aggregate, interfere in any material respect with the ordinary conduct of
the business of the Company or any Subsidiary; (h) building restrictions, zoning
laws and other statutes, laws, rules, regulations, ordinances and restrictions,
and any amendments thereto, now or at any time hereafter adopted by any
Governmental Authority having jurisdiction; (i) any interest or title of a
lessor or secured by a lessor's interest under any lease (other than a Capital
Lease); (j) Liens in connection with Investments permitted by Section 10.10(k);
(k) Liens granted by the Collateral Documents; and (l) other Liens securing
obligations not at any time exceeding $1,500,000.
10.10 Investments. Not, and not permit any Subsidiary to, make, incur,
assume or suffer to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 10.10 ("Investments") of Schedule II;
(b) Cash Equivalent Investments;
(c) Investments by the Company in its Subsidiaries or by any
Subsidiary in any other Subsidiary, in the form of contributions to
capital or loans or advances; provided that, immediately before and after
giving effect to such Investment, no Event of Default or Unmatured Event
of Default shall have occurred and be continuing;
(d) Investments by the Company or any Subsidiary in any Subsidiary,
in the form of capital contributions existing on the date hereof;
(e) loans or advances made by any Subsidiary to the Company;
(f) loans or advances to officers and employees of the Company or of
any Subsidiary (i) for travel or other ordinary business expenses in an
amount not in excess of $100,000 in the aggregate at any time and (ii) to
finance the purchase of stock of the Company or any Subsidiary in an
amount not in excess (in addition to any such loans or advances permitted
under clause (a)) of $1,000,000 in the aggregate at any time;
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(g) loans or advances to, or deposits with, contractors and
suppliers in the ordinary course of business not in excess of $500,000 in
the aggregate at any time;
(h) bank deposits in the ordinary course of business, provided that
the aggregate amount of all such deposits, other than deposits (x) with
any Lender, (y) with any bank which has executed a blocked account
agreement reasonably satisfactory to the Agent and (z) in imprest payroll
accounts, shall not at any time exceed $1,000,000 for more than three
consecutive days;
(i) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods and services in
the ordinary course of business;
(j) shares of stock, obligations or other securities received in
settlement of claims arising in the ordinary course of business;
(k) Permitted Acquisitions (other than the Merger), provided that:
(i) both before and after giving effect to such acquisition,
no Event of Default or Unmatured Event of Default shall exist,
(ii) the Company shall have delivered to the Agent a
duly-completed certificate in the form of Exhibit B (each, an
"Acquisition Certificate"), confirming that the financial conditions
referred to in clause (iv) below with respect to such acquisition
will be satisfied and setting forth the amount of Acquisition
Capital Expenditures to be made in connection with such acquisition,
(iii) after giving effect to such acquisition, the Company
will have aggregate unused availability of not less than $10,000,000
under the Revolving Commitments,
(iv) the Company shall be in compliance with all financial
covenants in Section 10.6 (in each case calculated for the
Computation Period ending on the last day of the most recently-ended
Fiscal Quarter on a pro forma basis as if such acquisition had
occurred (and any resulting Debt had been incurred) on the first day
of such Computation Period), and
(v) the Lenders shall have completed their due diligence with
respect to such acquisition, and all aspects thereof (including,
without limitation, environmental issues, accounting matters, market
review, aggregates supply and competitive position) shall be
reasonably satisfactory to the Required Lenders (provided that the
Company and its Subsidiaries may make acquisitions for a purchase
price not to exceed (x) $15,000,000 for any single acquisition and
(y) $30,000,000 in the
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aggregate for all acquisitions while this Agreement is in effect
without meeting the requirements of this clause (v));
(l) Investments received as proceeds of any sale of assets so long
as such Investments are reasonably satisfactory to the Required Lenders;
(m) Investments not otherwise permitted by the foregoing clauses (a)
through (l) not exceeding $500,000; and
(n) the Merger.
10.11 Restricted Payments. Not, and not permit any Subsidiary to, (a)
declare or pay any dividend (other than stock dividends) or distribution on any
of its capital stock, (b) purchase or redeem any capital stock of the Company or
any Subsidiary (or any warrants, options or other rights in respect thereof),
(c) make any other distribution to shareholders of the Company or any
Subsidiary, (d) prepay, purchase, defease or redeem any Subordinated Debt or (e)
set aside funds for any of the foregoing; provided that (i) any Subsidiary may
declare and pay dividends, or make other distributions, to the Company or to
another Subsidiary of the Company (but not to any other Person); (ii) so long as
such payment is permitted under the terms of the applicable subordination
agreement, Western Rock may make scheduled payments of principal and interest on
the ▇▇▇▇▇▇ Notes; (iii) so long as such payment is permitted under the terms of
the Lohja Note, the Company may (x) make scheduled payments of principal and
interest on the Lohja Note and (y) make a prepayment in full of the Lohja Note
so long as at least $1,800,000 of such prepayment is funded by cash equity
capital contributions to the Company; (iv) so long as such payment is permitted
under the terms of the subordination agreement with respect thereto, the Company
may make scheduled payments of principal and interest on the ▇▇▇▇▇▇ Note; (v) so
long as no Event of Default or Unmatured Event of Default exists or would result
therefrom, any Subsidiary or the Company may repurchase or redeem its stock from
any former employee or director of, or consultant to, a Subsidiary or the
Company (or the heirs or legal representatives of any such former employee,
director or consultant) in an aggregate amount, for all such purchases, not
exceeding $1,000,000 in any Fiscal Year; (vi) the Company may make scheduled
payments of principal and interest on the 1996 Subordinated Notes and may make
scheduled payments of interest on the 1998 Subordinated Notes subject to the
subordination provisions governing such Subordinated Debt; (vii) the Company may
make scheduled payments of principal and interest on the Cox Notes and Southern
Ready Mix, Inc. may make scheduled payments of principal and interest on the
▇▇▇▇▇ Notes, in each case subject to the subordination provisions governing such
Subordinated Debt; and (viii) AcquisitionCo may pay the Merger consideration
pursuant to the terms of the Merger Agreement.
10.12 Capital Expenditures, etc. Not, and not permit any Subsidiary to,
make or commit to make any Capital Expenditure in any Fiscal Year, except
Capital Expenditures which do not in the aggregate exceed $15,000,000 in any
Fiscal Year thereafter; provided that any unused amount in any
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Fiscal Year, up to a maximum of $2,000,000, may be carried over and used in the
following Fiscal Year.
10.13 Rental Obligations. Not, and not permit any Subsidiary to, enter
into any arrangement (other than Capital Leases) which involves the leasing by
the Company or such Subsidiary from any lessor of any personal property (or any
interest therein), except (a) rentals of items of equipment for not more than 90
days for use on one or more specific jobs in the ordinary course of business and
(b) arrangements which, together with all other such arrangements which shall
then be in effect, will not require the payment of any aggregate amount of
rentals by the Company and its Subsidiaries in any Fiscal Year in excess of 3.5%
of Net Revenues for the immediately preceding Fiscal Year; provided, however,
that any calculation made for purposes of this Section shall exclude any amounts
required to be expended for maintenance and repairs, insurance, taxes,
assessments and other similar charges.
10.14 Use of Proceeds. Use the proceeds of the Loans to finance the Merger
and to repay existing Debt, for working capital and for other general corporate
purposes, including Permitted Acquisitions; and not use or permit any proceeds
of any Loan to be used, either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of (a) "purchasing or carrying" any Margin
Stock or (b) purchasing or otherwise acquiring any stock of any Person if such
Person (or its board of directors) has (i) announced that it will oppose such
purchase or other acquisition or (ii) commenced any litigation which alleges
that such purchase or other acquisition violates, or will violate, any
applicable law.
10.15 Maintenance of Property. Maintain, and cause each Subsidiary to
maintain, its properties which are material to the conduct of its business in
good working order and condition (ordinary wear and tear excepted).
10.16 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in compliance in all material respects with all
applicable requirements of law and regulations.
10.17 Environmental Matters.
10.17.1 Environmental Obligations. (a) Comply, and cause each Subsidiary
to comply, in a reasonable manner with any applicable Federal or state judicial
or administrative order requiring the performance at any real property owned,
operated, or leased by the Company or any Subsidiary of activities in response
to any Release or threatened Release of any Hazardous Material, except for the
period of time that the Company or such Subsidiary is diligently in good faith
contesting such order; (b) use and operate, and cause each Subsidiary to use and
operate, all of its facilities and properties in material compliance with all
Environmental Laws; (c) keep, and cause each Subsidiary to keep, all necessary
permits, approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith; (d)
handle, store,
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transport and dispose of, and cause each Subsidiary to handle, store, transport
and dispose of, all Hazardous Materials in material compliance with all
applicable Environmental Laws; (e) not, and not permit any Subsidiary to,
commence disposal of any Hazardous Material into or onto any real property
owned, operated or leased by the Company or any Subsidiary or into or onto any
other real property which is not, to the best of the Company's knowledge, a
permitted disposal facility for such Hazardous Material; and (f) not allow any
Lien imposed pursuant to any Environmental Law to attach to any real property
owned, operated or leased by the Company or any Subsidiary.
10.17.2 Environmental Information. (a) Promptly notify the Agent of the
receipt by the Company or any Subsidiary of (and provide the Agent a copy of)
any written claim, demand, proceeding, action or notice of liability by any
Person arising out of or relating to the Release or threatened Release of any
Hazardous Material, except for any Release or threatened Release with respect to
which the maximum liability of the Company and its Subsidiaries is reasonably
expected to be less than $500,000; and (b) promptly notify the Agent of any
Release, threatened Release, or disposal of any Hazardous Material reported to
any Governmental Authority at any real property owned, operated or leased by the
Company or any Subsidiary, except for any Release, threat of Release or disposal
with respect to which the maximum liability of the Company and its Subsidiaries
is reasonably expected to be less than $500,000. Notwithstanding the exceptions
set forth in clauses (a) and (b) of the foregoing sentence, the Company shall
promptly notify the Agent if at any time the maximum aggregate liability of the
Company and its Subsidiaries for all Releases, threatened Releases or disposals
of Hazardous Materials described in such clauses is reasonably expected to
exceed $500,000.
10.18 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any contract for the purchase of
materials, supplies or other property or services, if such contract requires
that payment be made by it regardless of whether or not delivery is ever made of
such materials, supplies or other property or services.
10.19 Inconsistent Agreements, etc. Not, and not permit any Subsidiary to,
enter into any agreement (other than, in the case of clause (b), any Loan
Document) containing any provision which (a) would be violated or breached by
any borrowing by the Company hereunder or by the performance by the Company or
any Subsidiary of any of its obligations hereunder or under any other Loan
Document, (b) prohibits or limits the ability of any Subsidiary to (i) pay
dividends or make other distributions or prepay any Debt owed to the Company or
any Subsidiary or (ii) make loans or advances to the Company or (c) prohibits or
limits the ability of the Company or any Subsidiary to grant Liens on its assets
securing the Loans and other obligations secured by the Collateral Documents
other than documentation relating to Liens permitted by Section 10.9(d) or (e).
10.20 Transactions with Related Parties. Not, and not permit any
Subsidiary to, enter into or permit to exist any transaction, arrangement or
contract with any Related Party (other than the Company or any wholly-owned
Subsidiary) or any officer or director of the Company or any Related
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Party which is on terms less favorable than would be available from a Person
which is not a Related Party. Without limiting the foregoing, not pay any
management or similar fees to any Related Party other than management fees
payable to GTCR not exceeding $150,000 in any Fiscal Year; provided that no such
fee shall be paid at any time if an Event of Default or Unmatured Event of
Default exists or would result therefrom (it being understood that the Company
may pay GTCR's reasonable out-of-pocket expenses in connection with providing
management services to the Company in an amount not exceeding $25,000 in any
Fiscal Year).
10.21 Business Activities. Not, and not permit any Subsidiary to, engage
in any business activity other than the aggregates, and related materials and
services, business.
10.22 Further Assurances. Take, and cause each Subsidiary to take, such
actions as the Agent may reasonably request from time to time (including,
without limitation, the execution and delivery of guaranties, security
agreements, pledge agreements, Mortgages, stock powers, financing statements and
other documents, the filing or recording of any of the foregoing, and the
delivery of stock certificates and other collateral with respect to which
perfection is obtained by possession) to ensure that (i) the obligations of the
Company hereunder and under the other Loan Documents are secured by
substantially all assets of the Company and all capital stock of all
Subsidiaries (whether owned by the Company or otherwise) and are guaranteed by
all Subsidiaries (including, promptly upon the acquisition or creation thereof,
any Subsidiary created or acquired after the date hereof) and (ii) the
obligations of each Subsidiary under the Guaranty are secured by substantially
all of the assets of such Subsidiary (subject, in the case of both clause (i)
and clause (ii) above, to such exceptions as the Agent or the Required Lenders
may permit from time to time).
10.23 Modification of Certain Agreements. Not consent to any amendment or
other modification of (other than any amendment or modification which is not in
any way adverse to the Lenders), or waive any rights under, any of the terms or
provisions of (a) any Purchase Agreement, (b) the Lohja Note, (c) any agreement
or instrument relating to any Subordinated Debt, (d) the Merger Agreement or (e)
any ▇▇▇▇▇▇ Note Document.
10.24 Lender Meetings. Participate (and cause each of its key officers and
employees to participate) in a meeting with the Lenders at least once each
Fiscal Year at a location and time reasonably acceptable to the Lenders.
10.25 Interest Rate Protection. Enter into, not later than 180 days after
the Effective Date, one or more Hedging Agreements, each with a term of at least
three years, on an ISDA standard form with one or more Lenders or Affiliates
thereof or with counterparties reasonably acceptable to the Agent to fix the
interest rate with respect to not less than $55,000,000 of the principal amount
of the Term Loans in form and substance reasonably satisfactory to the Agent.
10.26 Fiscal Year. The Company will not change its Fiscal Year.
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10.27 Limitations on Sale and Leaseback Transactions. The Company shall
not, and shall not permit any Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of any real or
personal property, which property is or has been sold or transferred by the
Company or any Subsidiary to such Person in contemplation of taking back a lease
thereof in an aggregate amount in excess of $5,000,000.
10.28 Post-Closing Real Estate Matters. (a) Within 90 days after the
Effective Date, deliver to the Agent date down endorsements for each existing
title policy insuring the Mortgages amended by the Amendments to Mortgage
delivered pursuant to Section 11.1.15.
(b) Within 90 days after the Effective Date, deliver to the Agent, with
respect to each parcel of real property leased by Monroc, Treasure Valley
Concrete, Inc. or Big Horn Redi-Mix, Inc. (except to the extent prohibited by a
valid and enforceable prohibition against the grant of a Lien on such leasehold
interest), a duly executed Mortgage, together with:
(i) an ALTA Loan Title Insurance commitment issued by an insurer
acceptable to the Agent, insuring the Agent's Lien on such parcel and
containing such endorsements as the Agent may reasonably require (it being
understood that the amount of coverage, exceptions to coverage and status
of title set forth in such commitment shall be reasonably acceptable to
the Agent); and
(ii) if requested by the Agent, copies of all documents of record
concerning such parcel as shown on such commitment.
Further, if requested by the Agent, the Company will use it best efforts to
obtain a landlord's consent from the owner of such property and a mortgagee's
consent from any mortgagee of such property, in each case reasonably
satisfactory to the Agent.
SECTION 11 EFFECTIVENESS; CONDITIONS OF LENDING.
The effectiveness of this Agreement and the obligation of each Lender to
make any Loan and of the Issuing Lender to issue any Letter of Credit, is
subject to the following conditions precedent:
11.1 Effectiveness. This Agreement shall become effective, and all Loans
outstanding and the Existing Letters of Credit shall be deemed to be outstanding
and issued hereunder (as more fully set forth in Section 1.4), on the date (the
"Effective Date") on which (i) all conditions precedent set forth in Sections
11.2 and 11.3 have been satisfied and (ii) the Agent shall have received all of
the following, each duly executed and dated the Effective Date (or such earlier
date as shall be satisfactory to the Agent and each Lender), in form and
substance satisfactory to the Agent, and each (except for the Notes, of which
only the originals shall be signed) in sufficient number of signed counterparts
to provide one for each Lender:
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11.1.1 Notes. The Notes.
11.1.2 Resolutions. Certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying the execution, delivery and
performance by the Company of this Agreement, the Notes and the other Loan
Documents to which the Company is a party.
11.1.3 Consents, etc. Certified copies of all documents evidencing any
necessary corporate action, consents and governmental approvals (if any)
required for the execution, delivery and performance of the Loan Documents by
the Company.
11.1.4 Incumbency and Signature Certificates. A certificate of the
Secretary or an Assistant Secretary of the Company, certifying the names of the
officer or officers of the Company authorized to sign the Loan Documents to
which the Company is a party, together with a sample of the true signature of
each such officer (it being understood that the Agent and each Lender may
conclusively rely on such certificate until formally advised by a like
certificate of any changes therein).
11.1.5 Guaranty. The Guaranty, executed by each Guarantor.
11.1.6 Security Agreement. The Security Agreement, executed by the Company
and each Guarantor.
11.1.7 Pledge Agreements. Pledge Agreements, each substantially in the
form of Exhibit ▇-▇, ▇-▇ or D-3, as appropriate, executed by each of the
Company, each Subsidiary that owns stock of any other Subsidiary and each
Pledgor.
11.1.8 Opinions of Counsel. Opinions, addressed to the Agent and the
Lenders, of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company and its Subsidiaries,
substantially in the form of Exhibit F-1, (ii) Richards, Brandt, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, Utah, Nevada, Idaho and Wyoming counsel to the Company and its
Subsidiaries, substantially in the form of Exhibit F-2, (iii) Lange, Simpson,
▇▇▇▇▇▇▇▇ & Somerville LLP, Alabama counsel to the Company and its Subsidiaries,
substantially in the form of Exhibit F-3, (iv) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ P.L.C., Arizona
counsel to the Company and its Subsidiaries, substantially in the form of
Exhibit F-4, (v) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, California counsel to the
Company and its Subsidiaries, substantially in the form of Exhibit F-5, (vi)
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Georgia counsel to the Company and its
Subsidiaries, substantially in the form of Exhibit F-6, and (vii) Baker,
Donelson, Bearman & ▇▇▇▇▇▇▇▇, Tennessee counsel to the Company and its
Subsidiaries, substantially in the form of Exhibit F-7.
11.1.9 Insurance. Evidence satisfactory to the Agent and each Lender of
the existence of insurance required to be maintained pursuant to Section 10.3,
together with evidence that the Agent has been named as a loss payee and an
additional insured on all related insurance policies.
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11.1.10 Merger, 1996 Subordinated Notes, 1998 Subordinated Notes. (a)
Copies of each of the Merger Agreement and the Note and Warrant Purchase
Agreement, fully executed by the parties thereto and of all material
instruments, agreements and other documents required to be delivered or
furnished thereunder or in connection therewith (including, without limitation,
in the case of opinions of counsel, if any, reliance letters expressly
permitting the Agent and the Lenders to rely thereon as if such opinions had
been addressed thereto) and, except as expressly permitted by the Agent and the
Lenders, none of the material terms of the Merger (including any condition
precedent to AcquisitionCo's or the Company's performance thereof or obligation
to consummate the Merger) shall have been amended, waived or otherwise modified
in any material respect.
(b) Evidence that, after giving effect to the Loans and other credit
extensions to be made hereunder on the Effective Date and the application
thereof by the Company, the Merger has been or will be duly consummated in
accordance with the Merger Agreement without amendment, waiver or other
modification thereof unless the Agent and the Lenders shall have expressly
consented thereto in writing.
11.1.11 Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Effective Date, together with all reasonable fees and expenses of counsel to the
Agent and the Arranger to the extent invoiced prior to the Effective Date, plus
such additional amounts of reasonable attorneys' fees and expenses as shall
constitute the Agent's reasonable estimate of such fees and expenses incurred or
to be incurred by the Agent or the Arranger through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and the Agent).
11.1.12 Solvency Certificate. A Solvency Certificate, substantially in the
form of Exhibit N, executed by the chief financial officer of the Company.
11.1.13 Financial Information. (i) Audited financial statements of Monroc
for the fiscal years ending in 1994, 1995 and 1996, (ii) unaudited interim
consolidated financial statements of Monroc for each quarterly period ended
after the latest fiscal year referred to in clause (i) above as to which such
financial statements are available and such financial statements shall not, in
the reasonable judgment of the Lenders, reflect any material adverse change in
the consolidated financial condition of Monroc and its Subsidiaries from what
was reflected in the financial statements or projections previously furnished to
the Lenders and (iii) evidence reasonably satisfactory to the Lenders that the
pro forma EBITDA of the Company and its Subsidiaries for the last twelve months
for which financial information is then available (calculated as if the Merger
had occurred on the first day of such twelve-month period) is at least
$36,800,000.
11.1.14 Pro Forma. A pro forma consolidated balance sheet of Monroc and
its Subsidiaries as at the date of the most recent consolidated balance sheet
delivered pursuant to Section 11.1.13, adjusted to give effect to the
consummation of the Merger and the financings contemplated hereby as if such
transactions had occurred on such date, prepared in a manner reasonably
acceptable to the
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Agent and consistent in all material respects with the sources and uses of cash
for the Merger as previously described to the Lenders and the forecasts
previously provided to the Lenders.
11.1.15 Mortgage Amendments. With respect to each parcel of real property
owned by the Company which has previously been mortgaged to the Agent for the
benefit of the Lenders pursuant to the Existing Loan Agreement (or any
predecessor thereto), an Amendment to Mortgage.
11.1.16 Real Estate Documentation. With respect to each parcel of real
property owned by Monroc, Treasure Valley Concrete, Inc. or Big Horn Redi-Mix,
Inc., a duly executed Mortgage, together with:
(a) an ALTA Loan Title Insurance commitment issued by an insurer
acceptable to the Agent, insuring the Agent's Lien on such parcel and
containing such endorsements as the Agent may reasonably require (it being
understood that the amount of coverage, exceptions to coverage and status
of title set forth in such commitment shall be reasonably acceptable to
the Agent); and
(b) if requested by the Agent, copies of all documents of record
concerning such parcel as shown on such commitment.
11.1.17 Other. Such other documents as the Agent or any Lender may
reasonably request.
11.2 Other Conditions to Initial Credit Extension. The obligation of each
Lender to make its initial credit extension hereunder is, in addition to the
conditions precedent specified in Sections 11.1 and 11.3, subject to the
following conditions precedent:
11.2.1 1998 Subordinated Notes. The Company shall have issued the 1998
Subordinated Notes on terms and conditions satisfactory to the Agent for gross
proceeds of not less than $15,000,000.
11.2.2 Capital Structure; Indebtedness. Substantially all of the existing
indebtedness of Monroc and its Subsidiaries shall have been repaid on terms
satisfactory to the Agent. The capitalization and structure of the Company and
each Guarantor after the Merger shall be reasonably satisfactory to the Agent in
all respects.
11.2.3 1996 Subordinated Notes. The holders of the 1996 Subordinated Notes
shall have approved the Merger and the financing contemplated hereby and the
1998 Subordinated Notes and shall have agreed that all amounts outstanding or
drawable under the Facilities constitute "Senior Debt" for purposes of the 1996
Subordinated Notes. All conditions precedent to the effectiveness of the Note
and Warrant Purchase Agreement, other than the effectiveness of this Agreement,
shall have been satisfied.
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11.2.4 Merger Consideration; Expenses. The Lenders shall have received
evidence satisfactory to them that (i) the aggregate Merger consideration shall
not exceed $72,000,000 and (ii) the aggregate fees and expenses with respect to
the Merger and the financing thereof shall not exceed approximately $5,000,000.
11.3 All Loans and Letters of Credit. The effectiveness of this Agreement,
and the obligation of each Lender to make each Loan and of the Issuing Lender to
issue each Letter of Credit, is subject to the conditions precedent that:
11.3.1 No Default, etc. (a) No Event of Default or Unmatured Event of
Default has occurred and is continuing or will result from the making of such
Loan or the issuance of such Letter of Credit, (b) the warranties of the Company
contained in Section 9 (excluding Sections 9.6 and 9.8) are true and correct as
of the date of the making of such requested Loan or the issuance of such
requested Letter of Credit, with the same effect as though made on such date
(except to the extent relating solely to an earlier date, in which case such
warranty shall have been true and correct as of such earlier date) and (c) since
December 31, 1997, no event has occurred that has resulted in, or is reasonably
likely to result in, a Material Adverse Effect (other than any such event which
has been waived in writing by the Required Lenders).
11.3.2 Confirmatory Certificate. If requested by the Agent or any Lender,
the Agent shall have received (in sufficient counterparts to provide one to each
Lender) a certificate dated the date of the making of such requested Loan or the
issuance of such requested Letter of Credit and signed by a duly authorized
representative of the Company as to the matters set out in Section 11.3.1 (it
being understood that each request by the Company for the making of a Loan or
the issuance of a Letter of Credit shall be deemed to constitute a warranty by
the Company that the conditions precedent set forth in Section 11.3.1 will be
satisfied at the time of the making of such Loan or the issuance of such Letter
of Credit), together with such other documents as the Agent or any Lender may
reasonably request in support thereof.
SECTION 12 EVENTS OF DEFAULT AND THEIR EFFECT.
12.1 Events of Default. Each of the following shall constitute an Event of
Default under this Agreement:
12.1.1 Non-Payment of the Loans, etc. Default in the payment when due of
the principal of any Loan; or default, and continuance thereof for three
Business Days, in the payment when due of any interest, fee, reimbursement
obligation or other amount payable by the Company hereunder or under any other
Loan Document.
12.1.2 Defaults in Respect of Other Debt. Any default shall occur under
the terms applicable to any Debt of the Company or any Subsidiary in an
aggregate amount (for all Debt so affected) exceeding $1,000,000 and such
default shall (a) consist of the failure to pay such Debt when due
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(subject to any applicable grace period), whether by acceleration or otherwise,
or (b) accelerate the maturity of such Debt or permit the holder or holders
thereof, or any trustee or agent for such holder or holders, to cause such Debt
to become due and payable prior to its expressed maturity.
12.1.3 Other Material Obligations. Default in the payment when due, or in
the performance or observance of, any material obligation of, or condition
agreed to by, the Company with respect to any purchase or lease of goods or
services involving payments, in the aggregate for all such purchases and leases,
of $1,000,000 or more (except only to the extent that the existence of any such
default is being contested by the Company in good faith and by appropriate
proceedings and appropriate reserves have been made in respect of such default).
12.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary becomes
insolvent or generally fails to pay, or admits in writing its inability or
refusal to pay, debts as they become due; or the Company or any Subsidiary
applies for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for the Company or such Subsidiary or any property
thereof, or makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any Subsidiary or for a
substantial part of the property of any thereof and is not discharged within 60
days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of the Company or any
Subsidiary, and if such case or proceeding is not commenced by the Company or
such Subsidiary, it is consented to or acquiesced in by the Company or such
Subsidiary, or remains for 60 days undismissed; or the Company or any Subsidiary
takes any corporate action to authorize, or in furtherance of, any of the
foregoing.
12.1.5 Non-Compliance with Provisions of this Agreement. Failure by the
Company to comply with or to perform any covenant set forth in Sections
10.1.5(a), 10.2(b), 10.5, 10.6.1, 10.6.2, 10.6.3, 10.7, 10.9, 10.11, 10.12,
10.14, 10.18 through 10.23 or 10.27; failure by the Company to comply with or to
perform any covenant set forth in Section 10.8, 10.10, 10.13, 10.25 or 10.26 and
continuance of such failure for 10 days after notice thereof to the Company from
the Agent or any Lender; or 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 after notice thereof to the Company from the Agent or any
Lender.
12.1.6 Warranties. Any warranty made by the Company or any Subsidiary
herein or in any other Loan Document is breached, false or misleading (in each
case) in any material respect, or any schedule, certificate, financial
statement, report, notice or other writing furnished by the Company or any
Subsidiary to the Agent or any Lender is false or misleading (in each case) in
any material respect on the date as of which the facts therein set forth are
stated or certified.
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12.1.7 Pension Plans. (i) Institution of any steps by the Company or any
other Person to terminate a Pension Plan if as a result of such termination the
Company could be required to make a contribution to such Pension Plan, or could
incur a liability or obligation to such Pension Plan, in excess of $500,000 or
(ii) a contribution failure occurs with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA.
12.1.8 Judgments. Final judgments which exceed an aggregate of $500,000
(excluding any portion thereof which is covered by insurance to the reasonable
satisfaction of the Required Lenders) shall be rendered against the Company and
shall not have been discharged or vacated or had execution thereof stayed
pending appeal within 30 days after entry or filing of such judgments.
12.1.9 Invalidity of Collateral Documents, etc. Any Collateral Document
shall cease to be in full force and effect, the Company, any Guarantor or any
Pledgor shall fail to comply (subject to any applicable grace period) with or to
perform any applicable provision of any Collateral Document, or the Company, any
Guarantor or any Pledgor, or any Person by, through or on behalf of any such
entity, shall contest in any manner the validity, binding nature or
enforceability of any Collateral Document.
12.1.10 Invalidity of Guaranty, etc. The Guaranty shall cease to be in
full force and effect with respect to any Guarantor, any Guarantor shall fail to
comply (subject to any applicable grace period) with or to perform any
applicable provision of the Guaranty, or any Guarantor, or any Person by,
through or on behalf of any Guarantor shall contest in any manner the validity,
binding nature or enforceability of the Guaranty.
12.1.11 Change in Control or Management. (a) GTCR shall fail to own and
control, free of any Lien, at least 51% of the capital stock of each class of
the Company; or (b) 60 days shall have elapsed after ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ shall have ceased to have substantially the same duties and
responsibilities as such individual presently has in connection with the
management of the Company and its Subsidiaries and such individual shall not
have been replaced by an individual reasonably satisfactory to the Required
Lenders.
12.1.12 Invalidity of Subordination Provisions, etc. Any subordination
provision in any document or instrument governing Subordinated Debt, or any
subordination provision in any guaranty by any Subsidiary of any Subordinated
Debt shall cease to be in full force and effect, or the Company, any Guarantor
or any other Person shall contest in any manner the validity, binding nature or
enforceability of any such provision.
12.2 Effect of Event of Default. If any Event of Default described in
Section 12.1.4 shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and the Notes and all other obligations
of the Company hereunder shall become immediately due and payable and the
Company shall immediately become obligated to deliver to the Agent cash
collateral in an amount equal to the outstanding face amount of all Letters of
Credit, all without presentment,
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demand, protest or notice of any kind; and, if any other Event of Default occurs
and is continuing, the Agent may (and upon written request of the Required
Lenders shall) declare the Commitments (if they have not theretofore terminated)
to be terminated and/or declare all Notes and all other Obligations to be due
and payable and/or demand that the Company immediately deliver to the Agent cash
collateral in an amount equal to the outstanding face amount of all Letters of
Credit, whereupon the Commitments (if they have not theretofore terminated)
shall immediately terminate and/or all Notes and all other obligations of the
Company hereunder shall become immediately due and payable and/or the Company
shall immediately become obligated to deliver to the Agent cash collateral in an
amount equal to the outstanding face amount of all Letters of Credit, all
without presentment, demand, protest or notice of any kind. The Agent shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. Notwithstanding the foregoing, the
effect as an Event of Default of any event described in Section 12.1.1 or
Section 12.1.4 may be waived by the written concurrence of all of the Lenders,
and the effect as an Event of Default of any other event described in this
Section 12 may be waived by the written concurrence of the Required Lenders. Any
cash collateral delivered hereunder shall be held by the Agent (without
liability for interest thereon) and applied to obligations arising in connection
with any drawing under a Letter of Credit. After the expiration or termination
of all Letters of Credit, such cash collateral shall be applied by the Agent to
any remaining obligations of the Company hereunder and any excess shall be
delivered to the Company or as a court of competent jurisdiction may direct.
SECTION 13 THE AGENT.
13.1 Appointment and Authorization. Each Lender hereby irrevocably
(subject to Sections 13.9 and 13.12) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
13.2 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
13.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other
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Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of the Lenders for any recital, statement, representation or warranty made by
the Company or any Subsidiary or Affiliate of the Company, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Company or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company or any of the Company's Subsidiaries or Affiliates.
13.4 Reliance by Agent. (a) The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, confirmation from the Lenders of their obligation to indemnify the
Agent against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 11.1, each Lender that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
13.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default or Unmatured Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Lenders, unless the
Agent shall have received written notice from a Lender or the Company referring
to this Agreement, describing such Event of Default or Unmatured Event of
Default and stating that such notice is a "notice of default". The Agent will
notify the Lenders of its receipt of any such notice. The Agent shall take such
action with respect to such Event of Default or Unmatured Event of Default as
may be requested by the Required Lenders in accordance with Section 12;
provided,
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however, that unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default or Unmatured Event of
Default as it shall deem advisable or in the best interest of the Lenders.
13.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
13.7 Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from and against any
and all Indemnified Liabilities; provided, however, that no Lender shall be
liable for the payment to the Agent-Related Persons of any portion of such
Indemnified Liabilities resulting solely from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including reasonable fees of attorneys for the Agent
(including the allocable costs of internal legal services and all disbursements
of internal counsel)) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the repayment of the
Loans, the termination of the Letters
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of Credit, cancellation of the Notes and any termination of this Agreement and
the resignation or replacement of the Agent.
13.8 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to their Loans, BofA and its
Affiliates shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though BofA were not the Agent, and
the terms "Lender" and "Lenders" include BofA and its Affiliates, to the extent
applicable, in their individual capacities.
13.9 Successor Agent. The Agent may, and at the request of the Required
Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If the Agent
resigns under this Agreement, the Required Lenders, after consultation with the
Company, shall appoint from among the Lenders a successor agent for the Lenders.
If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the
Lenders and the Company, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 13 and
Sections 14.6 and 14.7 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Required Lenders, after consultation with the Company, appoint a successor agent
as provided for above.
13.10 Withholding Tax.
(a) If any Lender is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Lender claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the
Code, such Lender agrees with and in favor of the Agent, to deliver to the
Agent:
(i) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly
completed IRS Forms 1001 and
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W-8 before the payment of any interest in the first calendar year
and before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year
of such Lender and in each succeeding taxable year of such Lender
during which interest may be paid under this Agreement, and IRS Form
W-9;
(iii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either IRS Form
1001 or 4224, such Lender shall deliver (A) a certificate
substantially in the form of Exhibit P and (B) two properly
completed and signed copies of IRS Form W-8 certifying that such
Lender is entitled to an exemption from United States withholding
tax with respect to payments of interest to be made under this
Agreement; and
(iv) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Lender sells, assigns, grants a participation in, or
otherwise transfers all or part of the obligations of the Company to such
Lender, such Lender agrees to notify the Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company
to such Lender. To the extent of such percentage amount, the Agent will
treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the obligations of
the Company to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Lender an amount equivalent to the
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applicable withholding tax after taking into account such reduction. If
the forms or other documentation required by subsection (a) of this
Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including reasonable fees of attorneys for the Agent (including the
allocable costs of internal legal services and all disbursements of
internal counsel)). The obligation of the Lenders under this subsection
shall survive the expiration or termination of the Credit and payment of
the Notes and other liabilities of the Company hereunder and the
resignation or replacement of the Agent.
(f) If any Lender claims exemption from, or reduction of,
withholding tax under the Code by providing IRS Form W-8 and a certificate
in the form of Exhibit P and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the obligations of
the Company to such Lender, such Lender agrees to notify the Agent and the
Company of the percentage amount in which it is no longer the beneficial
owner of obligations of the Company to such Lender. To the extent of such
percentage amount, the Agent and the Company will treat such Lender's IRS
Form W-8 and certificate in the form of Exhibit P as no longer valid.
13.11 Collateral Matters. The Lenders irrevocably authorize the Agent, at
its option and in its discretion, to (a) execute and deliver a subordination
agreement with respect to any Lien granted to or held by the Agent upon the
Collateral to the extent the Lien to which such Lien is subordinated is
expressly permitted by clause (d) or (e) of Section 10.9 or (b) release any Lien
granted to or held by the Agent upon any Collateral (i) upon termination of the
Commitments and payment in full of all Loans and all other obligations (other
than Surviving Obligations) of the Company hereunder and under the other Loan
Documents; (ii) constituting property (including stock of a Subsidiary) sold or
to be sold or disposed of as part of or in connection with any disposition
permitted hereunder; (iii) constituting property in which the Company or the
applicable Subsidiary owned no interest at the time the Lien was granted or at
any time thereafter; (iv) constituting property leased to the Company or a
Subsidiary under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by the Company or such Subsidiary to be, renewed or extended; or
(v) subject to the proviso to the second sentence of Section 14.1, if approved,
authorized or ratified in writing by the Required Lenders. Upon request
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by the Agent at any time, the Lenders will confirm in writing the Agent's
authority to release particular types or items of Collateral pursuant to this
Section 13.11.
13.12 Funding Reliance. (a) Unless the Agent receives notice from a Lender
by 11:00 A.M., Chicago time, on the day of a proposed borrowing that such Lender
will not make available to the Agent the amount which would constitute its pro
rata share of such borrowing in accordance with Section 2.3, the Agent may (but
shall not be so required) assume that such Lender has made such amount available
to the Agent and, in reliance upon such assumption, make a corresponding amount
available to the Company. If and to the extent such Lender has not made any such
amount available to the Agent, such Lender and the Company jointly and severally
agree to repay such amount to the Agent forthwith on demand, together with
interest thereon at the interest rate applicable to Loans comprising such
borrowing or, in the case of any Lender which repays such amount within three
Business Days, the Federal Funds Rate (together with such other compensatory
amounts as may be required to be paid by such Lender to the Agent pursuant to
the Rules for Interbank Compensation of the Council on International Banking or
the Clearinghouse Compensation Committee, as applicable, as in effect from time
to time). Nothing set forth in this clause (a) shall relieve any Lender of any
obligation it may have to make any Loan hereunder.
(b) Unless the Agent receives notice from the Company prior to the due
date for any payment hereunder that the Company does not intend to make such
payment, the Agent may (but shall not be so required) assume that the Company
has made such payment and, in reliance upon such assumption, make available to
each Lender its share of such payment. If and to the extent that the Company has
not made any such payment to the Agent, each Lender which received a share of
such payment shall repay such share (or the relevant portion thereof) to the
Agent forthwith on demand, together with interest thereon at the Alternate Base
Rate (or, in the case of any Lender which repays such amount within three
Business Days, the Federal Funds Rate). Nothing set forth in this clause (b)
shall relieve the Company of any obligation it may have to make any payment
hereunder.
13.13 Assignment of Agency Function. The Agent may, at any time and from
time to time, without the consent of any other party to this Agreement, assign
and delegate to an Affiliate of the Agent that is a commercial bank located in
the United States of America or having a branch office in the United States of
America (an "Affiliate Agent") all of its rights, duties and obligations as
Agent hereunder; provided, however, that the Company and the Lenders may
continue to deal solely and directly with the assignor Agent until written
notice of such assignment, together with payment office, address for notice and
related information with respect to the Affiliate Agent, shall have been given
to the Company and the Lenders by the Agent and the Affiliate Agent. From and
after the date of such written notice, (a) the Affiliate Agent shall be a party
hereto, shall be deemed to be the "Agent" hereunder and shall have the rights,
duties and obligations of the Agent hereunder and under the Notes and the
Guaranty and (b) the assignor Agent shall relinquish its rights and be released
from its duties and obligations as Agent hereunder and under the Notes, the
Guaranty and the Collateral Documents; provided, however, that the provisions of
this Section 13 and Section 14.6 shall inure
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to the benefit of the assignor Agent as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement. Immediately upon such an
assignment, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the assignment of the assignor Agent's
rights, duties and obligations as Agent to the Affiliate Agent.
SECTION 14 GENERAL.
14.1 Waiver; Amendments. No delay on the part of the Agent or any Lender
in the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or consent or
forbearance in the case of any default with respect to, any provision of this
Agreement or the Notes shall in any event be effective unless the same shall be
in writing and signed and delivered by Lenders having an aggregate Total
Percentage of not less than the aggregate Total Percentage expressly designated
herein with respect thereto or, in the absence of such designation as to any
provision of this Agreement or the Notes, by the Required Lenders, and then any
such amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that:
(1) no such waiver, amendment or consent shall increase or extend
any Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 12.2) without the written consent of such Lender;
(2) no such waiver, amendment or consent shall postpone or delay any
date fixed by this Agreement or any other Loan Document for any payment of
regularly scheduled principal or interest on any Loan without the written
consent of the Lender holding such Loan (provided, that any date fixed for
repayment of principal of any Term Loan may be postponed or delayed (but not
beyond the final maturity date for such Facility) with the consent of Lenders
having a Total Percentage of 66-2/3%);
(3) no such waiver, amendment or consent relating to the definition
of "Mandatory Prepayment Event" or to any provision of this Agreement or any
other Loan Document which would result in any increased or decreased mandatory
prepayment of any Loan, or any increased or decreased mandatory reduction of any
Commitment, shall be made without the written consent of the Required Revolving
Lenders, Required Term A Lenders and Required Term B Lenders;
(4) no such waiver, amendment or consent shall reduce the principal
of, or the rate of interest specified herein on, any Loan without the written
consent of the Lender holding such Loan;
(5) no such waiver, amendment or consent shall reduce any fees
payable hereunder or under any other Loan Document, or postpone or delay any
date fixed by this Agreement or any
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other Loan Document for the payment of fees or any other amounts due to any
Lender hereunder or under any other Loan Document, without the written consent
of the Lender to whom such fee or other amount is owing;
(6) no such waiver, amendment or consent shall (w) change the
aggregate percentage of the Total Percentage which is required for the Lenders
or any of them to take any action hereunder without the written consent of all
Lenders, (x) amend the definition of "Required Revolving Lenders" without the
written consent of all Revolving Lenders, (y) amend the definition of "Required
Term A Lenders" without the written consent of all Term A Lenders or (z) amend
the definition of "Required Term B Lenders" without the written consent of all
Term B Lenders;
(7) no such waiver, amendment or consent shall release the Guaranty
or any Subsidiary from its respective obligations under the Loan Documents to
which it is a party or release all or substantially all of the collateral
securing the obligations under the Loan Documents without the written consent of
all Lenders;
(8) no such waiver, amendment or consent shall amend or waive any
provision of this Section or any other provision herein providing for consent or
other action by all Lenders, without the written consent of all Lenders;
(9) after the making of the Term Loans, Section 2.3, 2.4 (as it
relates to conversions and continuations of Revolving Loans), 2.6, 2.7, 2.8,
2.9, 3.1(a), 6.1 or 6.2(b) may be amended, or the rights or privileges
thereunder waived, with the written consent of the Required Revolving Lenders,
the Company and the Agent;
(10) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Lender in addition to the Required Lenders or all Lenders,
as the case may be, affect the rights or duties of the Issuing Lender under this
Agreement or any Letter of Credit or Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; and
(11) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document.
14.2 Confirmations. The Company and each holder of a Note agree from time
to time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Agent) the
aggregate unpaid principal amount of the Loans then outstanding under such Note.
14.3 Notices. Except as otherwise expressly provided herein, all notices
hereunder shall be in writing (including, without limitation, facsimile
transmission) and shall be sent to the applicable party at its address shown
below its signature hereto or at such other address as such party may, by
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written notice received by the other parties hereto, have designated as its
address for such purpose. Notices sent by facsimile transmission shall be deemed
to have been given when sent; notices sent by mail shall be deemed to have been
given three Business Days after the date when sent by registered or certified
mail, postage prepaid; notices sent by overnight courier shall be deemed to have
been given on the Business Day after delivery to such courier; and notices sent
by hand delivery shall be deemed to have been given when received. For purposes
of Sections 2.3, 2.4 and 4.3, the Agent shall be entitled to rely on telephonic
instructions from any person that the Agent in good faith believes is an
authorized officer or employee of the Company, and the Company shall hold the
Agent and each Lender harmless from any loss, cost or expense resulting from any
such reliance.
14.4 Subsidiary References. The provisions of this Agreement relating to
Subsidiaries shall apply only during such times as the Company has one or more
Subsidiaries.
14.5 Regulation U. Each Lender represents that it in good faith is not
relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
14.6 Costs, Expenses and Taxes. The Company agrees to pay on demand (a)
all reasonable out-of-pocket costs and expenses of the Agent (including the fees
and charges of counsel for the Agent and of local counsel, if any, who may be
retained by said counsel) in connection with the preparation, execution,
delivery and administration of this Agreement, the other Loan Documents and all
other documents provided for herein or delivered or to be delivered hereunder or
in connection herewith (including, without limitation, any amendment, supplement
or waiver to any Loan Document), and (b) all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees (including the allocable costs of
internal legal services and all disbursements of internal counsel), court costs
and other legal expenses) incurred by the Agent and each Lender after an Event
of Default in connection with the enforcement of this Agreement, the other Loan
Documents or any such other documents. Each Lender agrees to reimburse the Agent
for such Lender's pro rata share (based on its respective Total Percentage) of
any such costs and expenses of the Agent not paid by the Company. In addition,
the Company agrees to pay, and to save the Agent and the Lenders harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution and delivery of this Agreement, the borrowings hereunder, the
issuance of the Notes or the execution and delivery of any other Loan Document
or any other document provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided for in this
Section 14.6 shall survive repayment of the Loans, termination of the Letter of
Credit, cancellation of the Notes and any termination of this Agreement.
14.7 Indemnification by the Company. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses,
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damages, penalties, actions, judgments, suits, costs, charges, expenses and
disbursements (including reasonable fees of attorneys for the Agent (including
the allocable costs of internal legal services and all disbursements of internal
counsel)) of any kind or nature whatsoever which may at any time (including at
any time following repayment of the Loans, the termination of the Letters of
Credit and the termination, resignation or replacement of the Agent or
replacement of any Lender) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or Letters
of Credit or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Company shall have no obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities resulting solely
from the gross negligence or willful misconduct of such Indemnified Person.
All obligations provided for in this Section 14.7 shall survive repayment
of the Loans, termination of the Letters of Credit, cancellation of the Notes
and any termination of this Agreement.
14.8 Successors and Assigns. This Agreement 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
permitted successors and assigns of the Lenders and the Agent.
14.9 Assignments; Participations.
14.9.1 Assignments. Any Lender may at any time (with the prior written
consent of the Agent and, so long as no Event of Default exists, the Company,
which consents shall not be unreasonably withheld or delayed) assign and
delegate to one or more commercial banks or other Persons (any Person to whom
such an assignment and delegation is to be made being herein called an
"Assignee"), all or any fraction of such Lender's Loans and Commitment (provided
that any assignment and delegation of a portion of such Lender's Revolving Loans
and Revolving Commitment, of such Lender's Term A Loans and Term A Loan
Commitment or such Lender's Term B Loans and Term B Loan Commitment, as the case
may be, shall be of a constant, and not a varying, percentage of the applicable
Loans and Commitment) in a minimum aggregate amount equal to the lesser of (i)
the assigning Lender's remaining Loans (and, if applicable, participations in
Letters of Credit) and (to the extent not used) Commitment and (ii) $5,000,000;
provided, however, that (a) no assignment and delegation may be made to any
Person if, at the time of such assignment and delegation, the Company would be
obligated to pay any greater amount under Section 7.6 or Section 8 to the
Assignee than the Company is then obligated to pay to the assigning Lender under
such Section and (b) the Company and the Agent shall be entitled to continue to
deal
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solely and directly with such Lender in connection with the interests so
assigned and delegated to an Assignee until the date when all of the following
conditions shall have been met:
(x) five Business Days (or such lesser period of time as the Agent
and the assigning Lender shall agree) shall have passed after written
notice of such assignment and delegation, together with payment
instructions, addresses and related information with respect to such
Assignee, shall have been given to the Company and the Agent by such
assigning Lender and the Assignee,
(y) the assigning Lender and the Assignee shall have executed and
delivered to the Company and the Agent an assignment agreement
substantially in the form of Exhibit H (an "Assignment Agreement"),
together with any documents required to be delivered thereunder, which
Assignment Agreement shall have been accepted by the Agent (and, if
applicable, the Company), and
(z) the assigning Lender or the Assignee shall have paid the Agent a
processing fee of $3,500.
From and after the date on which the conditions described above have been met,
(x) such Assignee shall be deemed automatically to have become a party hereto
and, to the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (y) the assigning Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it pursuant to such Assignment Agreement, shall be released from
its obligations hereunder. Within five Business Days after the effectiveness of
any assignment and delegation, the Company shall execute and deliver to the
Agent (for delivery to the Assignee and, if applicable, the Assignor) a new Note
payable to the Assignee and, if the assigning Lender has retained a Commitment
hereunder, a replacement Note payable to the assigning Lender (such Note to be
in exchange for, but not in payment of, the predecessor Note held by such
assigning Lender). Each such Note shall be dated the effective date of such
assignment. The assigning Lender shall ▇▇▇▇ the predecessor Note "exchanged" and
deliver it to the Company. Accrued interest on that part of the predecessor Note
being assigned shall be paid as provided in the Assignment Agreement. Accrued
interest and fees on that part of the predecessor Note not being assigned shall
be paid to the assigning Lender. Accrued interest and accrued fees shall be paid
at the same time or times provided in the predecessor Note and in this
Agreement. Any attempted assignment and delegation not made in accordance with
this Section 14.9.1 shall be null and void.
The Company designates the Agent as its agent for maintaining a book entry
record of ownership identifying the Lenders, their respective addresses and the
amount of the respective Loans and Notes which they own. The foregoing
provisions are intended to comply with the registration requirements in Treasury
Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in
"registered form" pursuant to such regulation.
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Notwithstanding the foregoing provisions of this Section 14.9.1 or any
other provision of this Agreement, any Lender may at any time assign all or any
portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release any Lender from any of its obligations hereunder).
14.9.2 Participations. Any Lender may at any time sell to one or more
commercial banks or other Persons participating interests in any Loan owing to
such Lender, the Note held by such Lender, the Commitment of such Lender or any
other interest of such Lender hereunder (any Person purchasing any such
participating interest being herein called a "Participant"). In the event of a
sale by a Lender of a participating interest to a Participant, (x) such Lender
shall remain the holder of its Note for all purposes of this Agreement, (y) the
Company and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations hereunder and (z)
all amounts payable by the Company shall be determined as if such Lender had not
sold such participation and shall be paid directly to such Lender. No
Participant shall have any direct or indirect voting rights hereunder except
with respect to any of the events that would require the unanimous consent of
the Lenders pursuant to the proviso to the second sentence of Section 14.1. Each
Lender agrees to incorporate the requirements of the preceding sentence into
each participation agreement which such Lender enters into with any Participant.
The Company agrees that if amounts outstanding under this Agreement and the
Notes are due and payable (as a result of acceleration or otherwise), each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement; provided that such right of setoff shall
be subject to the obligation of each Participant to share with the Lenders, and
the Lenders agree to share with each Participant, as provided in Section 7.5.
The Company also agrees that each Participant shall be entitled to the benefits
of Section 7.6 and Section 8 as if it were a Lender (provided that no
Participant shall receive any greater compensation pursuant to Section 7.6 or
Section 8 than would have been paid to the participating Lender if no
participation had been sold). Each Lender which sells a participation will
maintain a book entry record of ownership identifying the Participant(s) and the
amount of such participation(s) owned by such Participant(s). Such book entry
record of ownership shall be maintained by the Lender as agent for the Company
and the Agent. This provision is intended to comply with the registration
requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation.
14.10 Governing Law. This Agreement and each Note shall be a contract made
under and governed by the laws of the State of Illinois applicable to contracts
made and to be performed entirely within the State of Illinois. Whenever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights
-74-
of the Agent and the Lenders expressed herein or in any other Loan Document
shall be in addition to and not in limitation of those provided by applicable
law.
14.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement. When
counterparts executed by all of the parties hereto shall have been lodged with
the Agent (or, in the case of any Lender as to which an executed counterpart
shall not have been so lodged, the Agent shall have received confirmation from
such Lender of execution of a counterpart hereof by such Lender), this Agreement
shall become effective as of the date hereof, and at such time the Agent shall
notify the Company and each Lender.
14.12 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH OF THE COMPANY, THE AGENT AND EACH LENDER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE COMPANY,
THE AGENT AND EACH LENDER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF ILLINOIS. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
14.13 Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENT AND EACH LENDER
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN
DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH
MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING
FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE
-75-
FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
-76-
Delivered at Chicago, Illinois, as of the day and year first above written.
U.S. AGGREGATES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: _______________________________
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
a Lender and as Issuing Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
-------------------------------
Agency Management Services #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-77-
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BANKBOSTON, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Managing Director
-------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NATIONAL CITY BANK,
as a Lender
By: /s/ illegible
-------------------------------
Title: ___________________________
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF SCOTLAND,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Tat
-------------------------------
Title: Vice President
-------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
-78-
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-79-
IBJ ▇▇▇▇▇▇▇▇ BANK AND TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: Managing Director
--------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. Rieght
Facsimile: 212-858-2222
COMERICA BANK - CALIFORNIA,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President
--------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
ZIONS FIRST NATIONAL BANK,
as a Lender
By: /s/ illegible
-------------------------------
Title: Vice President
--------------------------------
▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
as Attorney-in-Fact and on behalf of First Allmerica
Financial Life Insurance Company as Portfolio Manager
By: /s/ illegible
----------------------------------
Title: Principal
----------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-81-
ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC, as a Lender
By: ING Capital Advisors, Inc., as Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Title: Vice President & Portfolio Manager
---------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
PILGRIM AMERICA PRIME RATE TRUST,
as a Lender
By: /s/ illegible
----------------------------------
Title: Vice President
---------------------------------------
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-82-
SCHEDULE I
COMMITMENTS AND PERCENTAGES
Revolving Term A Term B
Lender Commitment Revolving Percentage Loan Commitment Term A Percentage Loan Commitment Term B Percentage
------ ---------- -------------------- --------------- ----------------- --------------- -----------------
Bank of $ 6,315,789.48 15.78947368% $ 8,684,210.52 15.78947368% $28,000,000 46.66666667%
America NT
& SA
BankBoston, $ 5,894,736.85 14.73684210% $ 8,105,263.15 14.73684210% $ 2,000,000 3.▇▇▇▇▇▇▇▇%
N.A.
Bank of $ 5,263,157.89 13.15789474% $ 7,236,842.11 13.15789474% $ 1,333,334 2.22222333%
Scotland
National City $ 5,263,157.89 13.15789474% $ 7,236,842.11 13.15789474% $ 1,333,333 2.▇▇▇▇▇▇▇▇%
Bank
IBJ ▇▇▇▇▇▇▇▇ $ 5,263,157.89 13.15789474% $ 7,236,842.11 13.15789474% $ 1,333,333 2.▇▇▇▇▇▇▇▇%
Bank and
Trust
Company
Comerica $ 4,000,000.00 10.00% $ 5,500,000.00 10.00% 0 0.00%
Bank
Zions First $ 4,000,000.00 10.00% $ 5,500,000.00 10.00% $ 1,000,000 1.▇▇▇▇▇▇▇▇%
National
Bank
Union Bank $ 4,000,000.00 10.00% $ 5,500,000.00 10.00% 0 0.00%
of California,
N.A.
Cypresstree 0 0.00% 0 0.00% 8,000,000 13.33333333%
Investment
Management,
on behalf of
First
Allmerica
Financial Life
Insurance
Company
ING Capital 0 0.00% 0 0.00% 9,000,000 15.00%
Advisors
Pilgrim 0 0.00% 0 0.00% 8,000,000 13.33333333%
America
Prime Rate
Trust
TOTAL $40,000,000 100.00% $55,000,000 100.00% $60,000,000 100.0%
SCHEDULE 1.1A
PRICING SCHEDULE
The Applicable ABR Margin, Applicable Eurodollar Margin and Non-Use Fee
Rate shall be determined based on the Leverage Ratio as set forth below.
(a) initially, the Applicable ABR Margin for Revolving Loans and Term A
Loans shall be 1.125% per annum, the Applicable Eurodollar Margin for
Revolving Loans and Term A Loans shall be 2.125% per annum the Applicable
ABR Margin for Term B Loans shall be 1.50% per annum, the Applicable
Eurodollar Margin for Term B Loans shall be 2.50% per annum and the
Non-Use Fee Rate shall be 0.500% per annum;
(b) on and after any date specified below on which the Applicable ABR
Margin and Applicable Eurodollar Margin for Revolving Loans, Term A Loans
and Term B Loans and the Non-Use Fee Rate are to be adjusted, the rate per
annum set forth in the table below opposite the applicable Leverage Ratio:
====================================================================================================================================
Applicable Applicable
Eurodollar Margin ABR Margin Applicable Applicable ABR
(Revolving Loans (Revolving Loans Non-Use Eurodollar Margin Margin (Term B
Leverage Ratio and Term A Loans) and Term A Loans) Fee Rate (Term B Loans) Loans)
------------------------------------------------------------------------------------------------------------------------------------
Greater than or 2.125% 1.125% 0.50% 2.50% 1.50%
equal to 4.50:1
------------------------------------------------------------------------------------------------------------------------------------
Greater than or 1.875% 0.875% 0.50% 2.50% 1.50%
equal to 4.00:1 but
less than 4.50:1
------------------------------------------------------------------------------------------------------------------------------------
Greater than or 1.625% 0.625% 0.425% 2.25% 1.25%
equal to 3.50:1 but
less than 4.00:1
------------------------------------------------------------------------------------------------------------------------------------
Greater than or 1.375% 0.375% 0.375% 2.25% 1.25%
equal to 3.00:1 but
less than 3.50:1
------------------------------------------------------------------------------------------------------------------------------------
Greater than or 1.125% 0% 0.375% 2.25% 1.25%
equal to 2.50:1 but
less than 3.00:1
------------------------------------------------------------------------------------------------------------------------------------
Less than 2.50:1 0.875% 0% 0.35% 1.875% 0.875%.
====================================================================================================================================
The Applicable ABR Margin, Applicable Eurodollar Margin and Non-Use Fee Rate
shall be adjusted, to the extent applicable, 30 days (or, in the case of the
last Fiscal Quarter of any year, 120 days) after the end of each Fiscal Quarter
(commencing with the Fiscal Quarter ending September
30, 1998), based on the Leverage Ratio as of the last day of such Fiscal
Quarter; it being understood that if the Company fails to deliver the financial
statements required by Section 10.1.1 or 10.1.2, as applicable, and the related
Compliance Certificate, if any, required by Section 10.1.3 by the 30th day (or,
if applicable, the 120th day) after any Fiscal Quarter, the Applicable ABR
Margin shall be 1.50%, the Applicable Eurodollar Margin shall be 2.50% and the
Non-Use Fee Rate shall be 0.50% until such financial statements and Compliance
Certificate are delivered. In addition, at all times when an Event of Default or
Unmatured Event of Default shall have occurred and be continuing, there shall be
no reduction in the Applicable ABR Margin, the Applicable Eurodollar Margin or
the Non-Use Fee Rate.
SCHEDULE II
[to be prepared by the Company]
EXHIBIT A
FORM OF NOTE
________, 1998
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
__________________ at the office of Bank of America National Trust and Savings
Association (the "Agent"), in Concord, California, the aggregate unpaid
principal amount of all Loans made by the payee to the undersigned pursuant to
the Credit Agreement referred to below, such amount to be paid at the times set
forth in the Credit Agreement.
The undersigned further promises to pay interest on the unpaid principal
amount of each Loan evidenced hereby from the date of such Loan until such Loan
is paid in full, payable at the rates and at the times set forth in the Credit
Agreement. Payments of both principal and interest are to be made in lawful
money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Third Amended and Restated Credit Agreement, dated
as of June 5, 1998 (herein, as amended or otherwise modified from time to time,
called the "Credit Agreement"), between the undersigned, certain financial
institutions (including the payee) and the Agent, to which Credit Agreement
reference is hereby made for a statement of the terms and provisions under which
this Note may or must be paid prior to its due date or may have its due date
accelerated.
In addition to and not in limitation of the foregoing and the provisions
of the Credit Agreement, the undersigned further agrees, subject only to any
limitation imposed by applicable law, to pay all reasonable expenses, including
reasonable attorneys' fees and legal expenses, incurred by the holder of this
Note in endeavoring to collect any amounts payable hereunder which are not paid
when due, whether by acceleration or otherwise.
[This Note is a replacement of the Note of the undersigned dated October
15, 1996 payable to the order of the payee (the "Original Note") and nothing
contained herein shall be construed (i) to deem paid or forgiven the unpaid
principal amount of, or unpaid accrued interest on, the Original Note
outstanding at the time of its replacement by this Note, or (ii) to release,
cancel, terminate or otherwise adversely affect all or any part of any security
interest or other encumbrance heretofore granted to or for the benefit of the
payee of the Original Note which has not otherwise been expressly released or
(iii) to constitute a novation of the indebtedness evidenced by the Original
Note.]
This Note is made under and governed by the laws of the State of Illinois
applicable to contracts made and to be entirely performed in such State.
U.S. AGGREGATES, INC.
By_____________________________
Title_______________________
-2-
EXHIBIT J
NOTICE OF BORROWING
Date: __________________, ____
To: Bank of America National Trust and Savings Association as Agent for
the Lenders parties to the Third Amended and Restated Credit
Agreement dated as of June 5, 1998 (as extended, renewed, amended or
restated from time to time, the "Agreement") among U.S. Aggregates,
Inc., certain Lenders which are signatories thereto and Bank of
America National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned, U.S. Aggregates, Inc. (the "Company"), refers to
the Agreement, the terms defined therein being used herein as therein defined,
and hereby gives you notice irrevocably, pursuant to Section 2.3 of the
Agreement, of the borrowing specified below:
1. The Business Day of the proposed borrowing is _____________, ____.
2. The aggregate amount of the proposed borrowing is $______ [of which
$________ shall be Revolving Loans, $_______ shall be Term A Loans and $_______
shall be Term B Loans].
3. The borrowing is to be comprised of $ of [ABR] [Eurodollar] Loans.
[4. The duration of the Interest Period for the Eurodollar Loans included
in the Borrowing shall be months.]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the warranties of the Company contained in Section 9 (excluding
Sections 9.6 and 9.8) of the Agreement are true and correct as though made on
and as of such date (except to the extent such warranties relate solely to an
earlier date, in which case they were true and correct as of such date);
(b) no Event of Default or Unmatured Event of Default has occurred and is
continuing, or would result from such proposed borrowing; and
(c) the proposed borrowing will not cause the aggregate principal amount
of all outstanding Revolving Loans plus the aggregate Stated Amount of all
outstanding Letters of Credit to exceed the combined Revolving Commitments of
the Revolving Lenders.
U.S. AGGREGATES, INC.
By:__________________________
Title:_______________________
-2-
EXHIBIT K
NOTICE OF CONVERSION
Date: __________________, ____
To: Bank of America National Trust and Savings Association as Agent for the
Lenders parties to the Third Amended and Restated Credit Agreement dated
as of June 5, 1998 (as extended, renewed, amended or restated from time to
time, the "Agreement") among U.S. Aggregates, Inc., certain Lenders which
are signatories thereto and Bank of America National Trust and Savings
Association, as Agent.
Ladies and Gentlemen:
The undersigned, U.S. Aggregates, Inc. (the "Company"), refers to the
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the Agreement,
of the conversion of the Loans specified herein, that:
1. The conversion date is ______________, ____.
2. The aggregate amount of the Loans to be converted is $__________.
3. The Loans are to be converted into [Eurodollar] [ABR] Loans.
4. The Loans being converted are [Revolving Loans] [Term A Loans] [Term B
Loans] [with an Interest Period ending on ________________, ____.].
5. [If applicable:] The duration of the Interest Period for the Eurodollar
Loans resulting from such conversion shall be months.
The undersigned hereby certifies that the no Event of Default or Unmatured
Event of Default has occurred and is continuing or would result from such
proposed conversion.
U.S. AGGREGATES, INC.
By:________________________
Title:_____________________
EXHIBIT L
NOTICE OF CONTINUATION
Date: __________________, ____
To: Bank of America National Trust and Savings Association as Agent for the
Lenders parties to the Third Amended and Restated Credit Agreement dated
as of June 5, 1998 (as extended, renewed, amended or restated from time to
time, the "Agreement") among U.S. Aggregates, Inc., certain Lenders which
are signatories thereto and Bank of America National Trust and Savings
Association, as Agent.
Ladies and Gentlemen:
The undersigned, U.S. Aggregates, Inc. (the "Company"), refers to the
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 4.3 of the Agreement,
of the continuation of the Loans specified herein, that:
1. The continuation date is ______________, ____.
2. The aggregate amount of the Loans to be continued is $__________.
3. The Loans being continued are [Revolving Loans] [Term A Loans] [Term B
Loans].
4. The duration of the Interest Period for the Loans included in the
continuation shall be months.
The undersigned hereby certifies that no Event of Default or Unmatured
Event of Default has occurred and is continuing or would result from such
proposed continuation.
U.S. AGGREGATES, INC.
By:___________________________
Title:________________________
EXHIBIT M
NOTICE OF VOLUNTARY PREPAYMENT
Date: ________________
To: Bank of America National Trust and Savings Association, as Agent for the
Lenders parties to the Third Amended and Restated Credit Agreement dated
as of June 5, 1998 (as extended, renewed, amended or restated from time to
time, the "Agreement") among U.S. Aggregates, Inc., a Delaware
corporation, certain Lenders which are signatories thereto and Bank of
America National Trust and Savings Association, as Agent.
Ladies and Gentlemen:
The undersigned, U.S. Aggregates, Inc. (the "Company"), refers to the
Agreement, the terms defined therein being used herein as therein defined, and
hereby gives you irrevocable notice, pursuant to Section 6.2.2 of the Agreement,
of the Company's intention to make a voluntary prepayment of the following
Loan(s):
Category of Loan(s): [Revolving Loan] [Term A Loan] [Term B Loan]
Value Date: _________
___ ABR Loan in the amount of _________
___ Eurodollar Loan in the amount of _________
with accrued interest (if applicable) of _________
Pursuant to standing instructions, we also authorize our account administrator
to debit our account 78-19625 on the value date for the principal amount and, if
applicable, the interest amount stated above.
U.S. AGGREGATES, INC.
By: ______________________
Name:
Title:
EXHIBIT O
FORM OF PREPAYMENT OPTION NOTICE
Attention [ ]
Telecopy No. [ ]
Ladies and Gentlemen:
The undersigned, Bank of America National Trust and Savings Association,
as agent (in such capacity, the "Agent") for the Lenders, refers 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"),
among U.S. Aggregates, Inc., the Lenders from time to time parties thereto and
the Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The Agent
hereby gives notice of an offer of prepayment made by the Company pursuant to
Section 6.2.3 of the Credit Agreement of the Term B Prepayment Amount. Amounts
applied to prepay the Term B Loans shall be applied pro rata to the Term B Loan
held by you. The portion of the prepayment amount to be allocated to the Term B
Loan held by you and the date on which such prepayment will be made to you
(should you elect to receive such prepayment) are set forth below:
(A) Total Term B Loan Prepayment Amount __________
(B) Portion of Term B Loan Prepayment
Amount to be received by you __________
(C) Prepayment Date (10 Business Days after
the date of this Prepayment Option Notice) __________
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TERM B LOAN PREPAYMENT AMOUNT TO
BE ALLOCATED TO YOU ON THE PREPAYMENT DATE INDICATED IN PARAGRAPH (B) ABOVE,
please sign this notice in the space provided below and indicate the percentage
of the Term B Loan Prepayment Amount otherwise payable which you do not wish to
receive. Please return this notice as so completed via telecopy to the attention
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Agency Management Services, #5596 at the Agent, no later than
10:00 a.m., San Francisco time, on the Prepayment Date, at Telecopy No. (510)
675-8500. IF YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE TERM B
LOAN PREPAYMENT ALLOCATED TO YOU ON THE PREPAYMENT DATE.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: ___________________________________
Name:
Title:
[________________]LENDER
By: ___________________________________
Name:
Title:
Percentage of Term B
Prepayment Amount
Declined:_________%
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EXHIBIT P
FORM OF EXEMPTION CERTIFICATE
Reference is made 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"), among U.S. Aggregates, Inc. (the
"Company"), the several banks and other financial institutions from time to time
parties thereto (the "Lenders") and Bank of America National Trust and Savings
Association, as agent for the Lenders hereunder (in such capacity, the "Agent").
Capitalized terms used herein that are not defined herein shall have the
meanings ascribed to them in the Credit Agreement. _____________________ (the
"Non-U.S. Lender") is providing this certificate pursuant to Section
13.10(a)(iii) of the Credit Agreement. The Non-U.S. Lender hereby represents and
warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of the
Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Code. In this regard, the Non-U.S. Lender further represents
and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other
legal requirements;
(c) The Non-U.S. Lender is not a 10-percent shareholder of the
Company within the meaning of Section 881(c)(3)(B) of the Code; and
(d) The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By: ___________________________________
Name:
Title:
Dated: _____________________
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