EXECUTION COPY
EXHIBIT 4.4
FIRST AMENDMENT TO NOTE AGREEMENT
THIS FIRST AMENDMENT TO NOTE AGREEMENT (this "Amendment"), dated
as of November 30, 2001, among U.S. CONCRETE, INC., a Delaware corporation (the
"Company"), and the financial institutions listed on the signature pages hereto
as Purchasers (the "Purchasers"), amends the Agreement referred to below. All
capitalized terms used herein and not otherwise defined shall have the meanings
provided such terms in the Agreement referred to below.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company and the Purchasers are parties to a Note
Agreement, dated as of November 10, 2000 (as amended, modified and/or
supplemented prior to the date hereof, the "Agreement"); and
WHEREAS, the Company has requested that the Purchasers amend the
Agreement to modify the definitions of Consolidated Net Earnings, EBITDA and Pro
Forma Operating Income as contained in this Amendment and the Purchasers are
willing to amend such term in accordance with the terms of this Amendment;
NOW, THEREFORE, it is agreed:
1. The Purchasers and the Company hereby amend the definitions of
"EBITDA", "Consolidated Net Earnings" and "Pro Forma Operating Income" in
Section 11 of the Agreement as follows:
"Consolidated Net Earnings" of any Person for any period shall
mean the net income (or loss) of such Person and its Subsidiaries for
such period, excluding (i) any extraordinary items, (ii) any equity
interest of such Person in the unremitted earnings of any Person which
is not a Subsidiary of such Person and (iii) all non-cash gains as
determined on a consolidated basis in accordance with generally
accepted accounting principles.
"EBITDA" shall mean, for any period, the sum of:
(i) the Consolidated Net Earnings of the Company for such
period, plus (to the extent deducted in determining Consolidated Net
Earnings of the Company for such period) the aggregate amount of
federal, state and local income and franchise taxes, interest
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expense, depreciation expense and amortization expense and other
non-cash charges for such period; and
(ii) to the extent not included in determining the amount in
clause (i), above, for such period, Pro Forma Operating Income.
"Pro Forma Operating Income" shall mean for each Qualified
Company whose Acquisition by the Company occurs during the four
consecutive fiscal quarter period preceding the date as of which EBITDA
is being calculated and with respect to the period beginning four
fiscal quarters prior to the calculation of EBITDA through the date of
such Acquisition, the sum of Consolidated Net Earnings of such
Qualified Company for such period, plus (to the extent deducted in
determining Consolidated Net Earnings of such Qualified Company for
such period) the aggregate amount of federal, state and local income
and franchise taxes, interest expense, depreciation expense and
amortization expense and other non-cash charges for such period, plus
or minus, as applicable, Add-Back Adjustments with respect to such
Qualified Company, in the case of each such item equal to the amount of
such item as set forth in the pro forma presentation of the results of
such Acquisition contained in the applicable form filed or to the filed
by the Company with the Securities and Exchange Commission reporting
such Acquisition.
2. In order to induce the Purchasers to enter into this
Amendment, the Company hereby represents and warrants that no Default or Event
of Default exists as of the Effective Date (as defined below) after giving
effect to this Amendment.
3. In order to induce the Purchasers to enter into this
Amendment, each of the parties listed on the signature page as Guarantors hereby
ratifies and confirms that the Guaranty Agreement of such Guarantor remains in
full force and effect after giving effect to this Amendment.
4. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Agreement.
5. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
6. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES BE GOVERNED BY, THE LAW OF THE STATE OF NEW
YORK (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS
AMENDMENT TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH OR THE RIGHTS OF THE
PARTIES TO BE GOVERNED BY THE LAWS OF ANY OTHER JURISDICTION).
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7. This Amendment shall become effective on the date (the
"Effective Date") when the Company and the Required Holders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Company.
8. From and after the Effective Date, all references in the
Agreement shall be deemed to be references to the Agreement as amended hereby.
[Rest of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute and deliver this Amendment as of the date
first above written.
"Company"
U.S. CONCRETE, INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
"Purchasers"
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/ XXXXX XXXXX
-------------------------------------
Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By:______________________________________
Title:___________________________________
TEACHERS INSURANCE & ANNUITY ASSOCIATION
OF AMERICA
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Managing Director
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CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA, Investments, Inc. (authorized
agent)
By: /s/ XXXXX X. HEIGHT
--------------------------------
Title: Managing Director
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ XXXXXXXX XXXXXX
-------------------------------------
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
ALLSTATE LIFE INSURANCE COMPANY OF NEW
YORK
By: /s/ XXXXXXXX XXXXXX
-------------------------------------
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
SOUTHERN FARM BUREAU LIFE INSURANCE
COMPANY
By:______________________________________
Title:___________________________________
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Acknowledged and Agreed to:
"Guarantors"
AFTM CORPORATION, a Michigan corporation
AMERICAN CONCRETE PRODUCTS, INC., a California corporation
ATLAS-TUCK CONCRETE, INC., an Oklahoma corporation
XXXXX INDUSTRIES, INC., a Texas corporation
XXXXX MANAGEMENT, INC., a Texas corporation
CENTRAL CONCRETE CORP., a Delaware corporation
CENTRAL CONCRETE SUPPLY CO., INC., a California corporation
CENTRAL PRECAST CONCRETE, INC., a California corporation
CORDEN, INC., a Michigan corporation
XXXXXXXXX FUEL & SUPPLY, INC., a Michigan corporation
XXXXXXXXX LEASING, INC., a Michigan corporation
DENCOR, INC., a Michigan corporation
DYNA, INC., a Delaware corporation
X.X. XXXXXX, INC., a Michigan corporation
EASTERN CONCRETE MATERIALS, INC., a New Jersey corporation
FENDT TRANSIT MIX, INC., a Michigan corporation
HUNTER EQUIPMENT COMPANY, a Michigan corporation
SUPERIOR CONCRETE MATERIALS, INC. (f/k/a) OPPORTUNITY CONCRETE
CORPORATION, a District of Columbia corporation
READY MIX CONCRETE COMPANY OF KNOXVILLE, a Delaware corporation
SAN DIEGO PRECAST CONCRETE, INC., a Delaware corporation
SIERRA PRECAST, INC., a California corporation
XXXXX PRE-CAST, INC., a Delaware corporation
USC GP, INC., a Delaware corporation
USC MIDSOUTH, INC., a Delaware corporation
WYOMING CONCRETE INDUSTRIES, INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
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USC MANAGEMENT CO., LP,
a Texas limited partnership
By: USC GP, INC., its General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
XXXXX CONCRETE ENTERPRISES, LTD.,
a Texas limited partnership
By: XXXXX MANAGEMENT, INC.,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
CARRIER EXCAVATION AND FOUNDATION
COMPANY, a Delaware corporation
CONCRETE XX ACQUISITION, INC., a
Delaware corporation
PREMIX CONCRETE CORP., a Delaware corporation
SUPERIOR REDI-MIX, INC., a Michigan corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President
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B.W.B., INC. OF MICHIGAN, a Delaware corporation
CENTRAL CONCRETE CORP., a Delaware corporation
OLIVE BRANCH READY MIX, INC., a Delaware corporation
SUPERIOR MATERIALS COMPANY, INC., a Delaware corporation
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
Vice President
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