Exhibit 4.5
THIRD AMENDMENT AND WAIVER
This THIRD AMENDMENT AND WAIVER (this "Waiver"), effective as of August 7,
2003 (the "Effective Date"), is entered into by and among U.S. Concrete, Inc., a
Delaware corporation, (the "Borrower"), the Guarantors signatory hereto under
the caption "Guarantors" (together with each other Person who becomes a
Guarantor, collectively, the "Guarantors"), the Lenders signatory hereto under
the caption "Lenders" (together with each other Person who becomes a Lender,
collectively, the "Lenders") and JPMorgan Chase Bank, formerly known as The
Chase Manhattan Bank, a New York banking corporation, as administrative agent
for the other Lenders (in such capacity, together with any other Person who
becomes the administrative agent, the "Administrative Agent"), Credit Lyonnais
New York Branch and First Union National Bank, as syndication agents, and Branch
Banking & Trust Company, as documentation agent.
PRELIMINARY STATEMENT
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, the syndication agents and the documentation agent have entered into that
certain Amended and Restated Credit Agreement dated as of August 31, 2001 (the
"Original Credit Agreement") under the terms of which the Lenders agreed to make
Revolving Credit Loans to the Borrower in an amount not exceeding
$200,000,000.00; and
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, the syndication agents and the documentation agent have entered into that
certain First Amendment to Amended and Restated Credit Agreement dated as of May
21, 2002 (the "First Amendment") and that certain Second Amendment to Amended
and Restated Credit Agreement dated as of April 4, 2003 (the "Second Amendment")
pursuant to which the parties agreed to amend certain terms of the Original
Credit Agreement (the Original Credit Agreement, as amended by the First
Amendment and the Second Amendment, is hereinafter referred to as, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested the Lenders and the Administrative
Agent waive its failure to comply with the covenant under 6.8(d) of the Credit
Agreement; and
WHEREAS, the Lenders and the Administrative Agent have agreed to do so to
the extent reflected in this Waiver, subject to the terms hereof and provided
that each of the Borrower and the Guarantors ratifies and confirms all of its
respective obligations under the Credit Agreement and the Loan Documents.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration and the mutual benefits, covenants and agreements herein
expressed, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Defined Terms. All capitalized terms used in this Waiver and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
2. Amendment. The Credit Agreement is hereby amended to provide that,
notwithstanding any contrary provision thereof, during the Effective Period (as
defined below), the aggregate maximum Revolving Credit Exposures for all Lenders
shall not exceed One Hundred Twenty-Five Million and No/100 Dollars
($125,000,000). The Lenders shall have no obligation to fund any Loan that would
cause the aggregate Revolving Credit Exposures for all Lenders to exceed such
amount during the Effective Period.
3. Waiver. The Lenders hereby waive compliance by the Borrower with the
covenant contained in Section 6.8(d) of the Credit Agreement, only to the extent
required to avoid a Default, only for the calendar quarter ended June 30, 2003,
but not thereafter and only for the period of time specified in paragraph 5
hereof.
4. Limitation on Waiver. This Waiver is limited solely to the purposes
and to the extent provided herein and shall have no applicability to any
obligation of the Borrower except those described in Section 6.8(d) of the
Credit Agreement. This Waiver shall not be construed to be a waiver, except as
specifically provided in paragraph 3 of this Waiver, (i) of any term, condition
or provision of the Credit Agreement or (ii) of any Default or Event of Default
that has or may have occurred or occurs other than as specified in paragraph 3.
Except as specifically provided herein, the Credit Agreement will continue in
full force and effect.
5. Effective Period of Waiver. This Waiver shall be effective from the
Effective Date through and until October 15, 2003 (the "Effective Period"), at
which time Borrower's failure to comply with the covenant contained in Section
6.8(d) for the calendar quarter ended June 30, 2003, and any other event
constituting an Event of Default under the Credit Agreement shall be an Event of
Default with respect to which the Administrative Agent, on behalf of the
Lenders, may exercise all remedies under the Credit Agreement.
6. Ratification. Each of the Borrower, as to itself and each Guarantor,
and each Guarantor, as to itself, hereby ratifies all of its respective
obligations under the Credit Agreement (including the Guaranty contained
therein) and each of the Loan Documents to which it is a party, and agrees and
acknowledges that the Credit Agreement and each of the Loan Documents to which
it is a party remains in full force and effect and shall continue in full force
and effect. Except as amended or modified by this Waiver, nothing in this Waiver
extinguishes, novates or releases any right, claim, lien, security interest or
entitlement of any of the Lenders or the Administrative Agent created by or
contained in any of such documents nor is the Borrower or any Guarantor released
from any covenant, warranty or obligation created by or contained therein or
herein.
7. Representations and Warranties. Each of the Borrower, as to itself and
each Guarantor, and each Guarantor, as to itself, hereby represents and warrants
to the Administrative Agent and the Lenders that (a) this Waiver has been duly
executed and delivered on behalf of the Borrower and such Guarantor, (b) this
Waiver constitutes a valid and legally binding agreement enforceable against the
Borrower or such Guarantor, as the case may be, in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization,
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moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law, (c) the representations and warranties contained in the
Credit Agreement and the Loan Documents shall be true and correct on and as of
the date of each Borrowing and the date of issuance, amendment, renewal or
extension of each Letter of Credit, as applicable, except to the extent such
representations and warranties relate to a prior date or, after prior notice to
the Administrative Agent, are untrue or incorrect as a result of transactions
permitted by the Loan Documents, (d) no Default or Event of Default exists under
the Credit Agreement or under any other Loan Document, and (e) the execution,
delivery and performance of this Waiver has been duly authorized by the Borrower
and each Guarantor.
8. Conditions to Effectiveness. This Waiver shall be effective as of the
Effective Date upon (i) the execution and delivery hereof by the Borrower, each
Guarantor and Lenders constituting the Required Lenders to the Administrative
Agent and receipt by the Administrative Agent of this Waiver and (ii) payment by
the Borrower to the Administrative Agent for the benefit of the Lenders of any
fees agreed to by the Borrower and the Lenders in connection with this Waiver.
9. Counterparts. This Waiver may be signed in any number of counterparts,
which may be delivered in original or facsimile form each of which shall be
construed as an original, but all of which together shall constitute one and the
same instrument.
10. Governing Law. This Waiver, the Credit Agreement, all Notes, the other
Loan Documents and all other documents executed in connection herewith shall be
deemed to be contracts and agreements under the laws of the State of Texas and
of the United States of America and for all purposes shall be construed in
accordance with, and governed by, the laws of Texas and of the United States.
11. Final Agreement of the Parties. THIS WAIVER AND THE CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
executed by their respective officers or other authorized representatives
thereunto duly authorized as of the date first above written.
Borrower:
U.S. CONCRETE
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
Guarantors:
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 Supply Co., Inc., a
California corporation
Central Precast Concrete, Inc., a
California 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 Atlantic, Inc., a Delaware
corporation
USC GP, Inc., a Delaware corporation
USC Midsouth, Inc., a Delaware
corporation
USC Michigan, Inc., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
[Signature Page to Waiver]
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
AFTM Corporation, a Michigan
corporation
By: /s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
Vice President
Titan Concrete Industries, Inc. (f/k/a
Carrier Excavation and Foundation
Company, a Delaware corporation)
Eastern Concrete Materials, Inc., a
New Jersey corporation
Superior Materials, Inc. (f/k/a Superior
Redi-Mix, Inc., a Michigan
corporation)
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
Vice President
[Signature Page to Waiver]
B.W.B., Inc. of Michigan, a Delaware
corporation
Central Concrete Corp., a Delaware
corporation
Superior Materials Company, Inc., a
Delaware corporation
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Vice President
[Signature Page to Waiver]
Wyoming Concrete Industries, Inc., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx
Vice President
[Signature Page to Waiver]
Administrative Agent/Lender:
JPMORGAN CHASE BANK, formerly known as
The Chase Manhattan Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
[Signature Page to Waiver]
Syndication Agent/Lender:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Phillipe Soustra
---------------------------------
Name: Phillipe Soustra
---------------------------------
Title: Executive Vice President
---------------------------------
[Signature Page to Waiver]
Syndication Agent/Lender:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
[Signature Page to Waiver]
Documentation Agent/Lender:
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
[Signature Page to Waiver]
Lender:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Title: Assistant Vice President
---------------------------------
[Signature Page to Waiver]
Lender:
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxxx, Director
------------------------------------
Xxxxxx X. Xxxxxxxx, Director
[Signature Page to Waiver]
Lender:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: Director
---------------------------------
[Signature Page to Waiver]
Co-Managing Agent/Lender:
US BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Title: Vice President
---------------------------------
[Signature Page to Waiver]
Lender:
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
[Signature Page to Waiver]
Lender:
GUARANTY BANK
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx, Vice President
[Signature Page to Waiver]
