SECOND AMENDMENT TO
CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment" or
this "Amendment"), effective as of this 31st day of July, 1999, is entered into
by and among U.S. CONCRETE, INC., a Delaware corporation, (the "Company"), the
Guarantors party hereto, the Lenders signatory hereto under the caption
"Lenders" (together with each other Person who becomes a Lender, collectively,
the "Lenders") and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, individually as a Lender, and as administrative agent for the other
Lenders (in such capacity, together with any other Person who becomes the
administrative agent, the "Administrative Agent"), BANK OF AMERICA, N.A. f/k/a
NationsBank, N.A., as Syndication Agent, and BANK ONE, TEXAS, NA and CREDIT
LYONNAIS NEW YORK BRANCH, as Co-Agents for the Lenders.
PRELIMINARY STATEMENT
WHEREAS, the Company, the Guarantors, the Lenders, the Administrative
Agent, the syndication agent and the co-agents have entered into that certain
Credit Agreement dated as of May 28, 1999, as amended by that certain First
Amendment to Credit Agreement dated June 30, 1999 among such parties (said
Credit Agreement, as amended and as it may be further amended, extended,
supplemented or amended and restated from time to time, the "Credit Agreement");
and
WHEREAS, the Company has requested the Lenders and the Administrative
Agent to make a swingline facility available to the Company and to amend and
modify certain other terms of the Credit Agreement; and
WHEREAS, the Lenders and the Administrative Agent have agreed to do so
to the extent reflected in this Amendment, provided that each of the Company and
the Guarantors ratifies and confirms all of its respective obligations under the
Credit Agreement and the Loan Documents and agrees to make certain other
amendments as set forth here.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration and the mutual benefits, covenants and agreements
herein expresses, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Defined Terms and Overall Changes. All capitalized terms used in
this Amendment and not otherwise defined herein shall have the meanings ascribed
to such terms in the Credit Agreement.
2. Amendment to Section 1.01. The hereinafter listed definitions are
hereby deleted from the Credit Agreement and restated or are added to the Credit
Agreement in the appropriate alphabetical order to read as follows:
"'Autoborrow Agreement' means the Autoborrow Service Agreement dated
as of _____________, 1999, between the Borrower and the Swingline Lender."
"'Borrowing' means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, and (b) a Swingline Loan."
"'Class', when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans."
"'Commitment' means (a) with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (i) reduced from time to time pursuant to Section 2.07
and (ii) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04 and (b) with respect to the Swingline
Lender, its commitment to make Swingline Loans. The initial amount of each
Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$75,000,000.00."
"'Interest Payment Date' means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid pursuant to Section 2.08(a), Section 2.19(c), Section 7.02, or
otherwise."
"'Lenders' means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the
term "Lenders" includes the Swingline Lender."
"'Revolving Credit Exposure' means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time."
"'Swingline Exposure' means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time."
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"'Swingline Lender' means Bank of America, N.A., in its capacity as
lender of Swingline Loans hereunder."
"'Swingline Loan' means a Loan made pursuant to Section 2.19."
3. Amendment to Section 2.02. Sections 2.02(b) and (c) of the
Credit Agreement are hereby restated in their entirety to read as follows:
"(b) Subject to Section 2.12, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower
may request in accordance herewith; provided each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an
aggregate amount that is an integral multiple of $500,000 and not less
than $1,000,000, unless such Borrowing represents a Borrowing of all
of the unused Commitment. At the time that each ABR Revolving
Borrowing is made (other than Borrowings under the Swingline Loans),
such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $1,000,000; provided that an
ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.04(e). At any time when the Autoborrow Agreement is in
effect, the provisions thereof shall govern the advancing of a
Swingline Loan. At any time when the Autoborrow Agreement is not in
effect, each Swingline Loan shall be in an amount not less than
$50,000 and integral multiples of $10,000 in excess thereof.
Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a
total of seven (7) Eurodollar Revolving Borrowings outstanding."
4. Amendment to Section 2.03. Section 2.03 is hereby amended by
adding a subparagraph (vi) thereto to read as follows:
"(vi) any amounts then outstanding as Swingline Loans."
5. Amendment to Section 2.05. Section 2.05(a) of the Credit
Agreement is hereby restated in its entirety to read as follows:
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"(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:30 p.m., Houston, Texas time, to the account of
the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall
be made as provided in Section 2.19. The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in Houston, Texas or other
location as designated by the Borrower in the applicable Borrowing
Request."
6. Amendment to Section 2.08. Section 2.08(a) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan on the Maturity Date
and (ii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the Maturity Date."
7. Amendment to Section 2.09. Section 2.09(b) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan at any time when the
Autoborrow Agreement is not in effect, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurodollar Revolving Borrowing, not later
than 11:00 a.m., Houston, Texas time, three Business Days before the
date of prepayment, (ii) in the case of prepayment of an ABR Revolving
Borrowing, not later than 11:00 a.m., Houston, Texas time, one
Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan at any time when the Autoborrow
Agreement is not in effect, not later than 12:00 noon, Houston, Texas
time, on the date of prepayment. At any time when the Autoborrow
Agreement is in effect, the provisions thereof shall govern the
prepayment of a Swingline Loan. Each such notice shall be irrevocable
and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice
of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination
is revoked in accordance with Section 2.07. Promptly following receipt
of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an
amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type as provided in Section 2.02.
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Each prepayment of a Revolving Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section
2.11."
8. Amendment to Section 2.10. Section 2.10(a) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(a) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee, which shall accrue as
shown in the column for Commitment Fee Rate in the definitions of
Applicable Margin on the daily average Commitment of each Lender less the
Revolving Credit Exposure for such Lender during the period from and
including the date of this Agreement to but excluding the date on which
such Commitment terminates, provided, for purposes of this Section 2.10(a)
only, but for no other purpose, Revolving Credit Exposure shall not include
any Lender's Swingline Exposure. Accrued and unpaid commitment fees shall
be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided
that any unpaid commitment fees accruing after the date on which the
Commitments terminate shall be payable on demand. All facility fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the
last day).
9. Amendment to Section 2.11. Sections 2.11(a) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(a) (i) The Loans comprising each ABR Borrowing (excluding
each Swingline Loan) shall bear interest at a rate per annum equal to
the lesser of: (y) the Alternate Base Rate plus the Applicable Margin
and (z) the Highest Lawful Rate.
(ii) Each Swingline Loan shall bear interest at a rate per
annum equal to the lesser of (y) the Alternate Base Rate plus the
Applicable Margin for ABR Loans less the applicable Commitment Fee
Rate and (z) the Highest Lawful Rate."
10. Amendment to Section 2.16. Sections 2.16(a) and (c) of the
Credit Agreement are hereby restated in their entirety to read as follows (the
remainder of Section 2.16 is unchanged):
"(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.13, 2.14 or
2.15, or otherwise) prior to 12:00 noon, Houston, Texas time, on the
date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in
the discretion of the recipient, be deemed to have been
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received on the next succeeding Business Day for purposes of
calculating interest thereon. All other such payments shall be made to
the Administrative Agent at its offices at 000 Xxxx Xx., Xxxxxxx,
Xxxxx 00000, except payment to be made directly to the Issuing Bank or
Swingline Lenders as expressly provided herein or in any other Loan
Document, and except that payments pursuant to Sections 2.13, 2.14,
2.15 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in
dollars.
"(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in LC Disbursements and Swingline
Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving
Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their
respective Revolving Loans and participations in LC Disbursements and
Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the
Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise, after the occurrence and
during the continuance of an Event of Default, against the Borrower
rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in
the amount of such participation."
11. Amendment to Section 2.17. Sections 2.17(b)(i) and (ii) of the
Credit Agreement are hereby restated in their entirety to read as follows:
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"(i) the Borrower shall have received the prior written consent
of the Administrative Agent (and, if a Commitment is being assigned,
the Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts)"
12. Addition of Section 2.19. A new Section 2.19 is hereby added to
the Credit Agreement and will read as follows:
"SECTION 2.19. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the
Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $5,000,000.00 or (ii) the sum
of the total Revolving Credit Exposures exceeding the total
Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans.
(b) At any time when the Autoborrow Agreement is in effect, the
provisions thereof shall govern the advancing of a Swingline Loan. At
any time when the Autoborrow Agreement is not in effect, the
provisions of this Section 2.19(b) shall govern the advancing of a
Swingline Loan. To request a Swingline Loan, the Borrower shall notify
the Swingline Lender of such request not later than 12:00 noon,
Houston, Texas time, on the day of a proposed Swingline Loan. Each
such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline
Loan. The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to the general deposit account of
the Borrower with the Swingline Lender (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.04(e), by remittance to the Issuing Bank) by
3:00 p.m., Houston, Texas time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., Houston, Texas time,
on any Business Day following an Event of Default including the
failure of Borrower to pay any principal, interest, fees or other
amounts with respect to a Swingline Loan at the time required by this
Agreement, require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in
which Lenders will
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participate. Promptly upon receipt of such notice, the Administrative
Agent will give notice thereof to each Lender, specifying in such
notice such Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to promptly pay to the
Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation
under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.05 with respect to Loans
made by such Lender (and Section 2.05 shall apply, mutatis mutandis,
to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to
the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of
the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative
Agent to the Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to
this paragraph shall not relieve the Borrower of any default in the
payment thereof."
13. Amendment to Section 6.02. Section 6.02(d) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(d) Liens securing potential prepayment obligations of Xxxxxx'x
Concrete, Inc. to Union Bank of California encumbering assets of
Xxxxxx'x Concrete, Inc.; provided (i) no further Indebtedness is owing
by the Borrower or any Subsidiary to said bank and (ii) said Liens are
fully extinguished and released prior to August 31, 1999; and"
14. Amendment to Section 7.02. Section 7.02(i) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"On the occurrence of any event described in Section 7.01 (other
than an event with respect to the Borrower described in clause (h) or
(i) thereof), and at any
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time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following
actions, at the same time or different times: (i) terminate the
Commitments (including the Commitment of the Swingline Lender with
respect to its obligation to advance Swingline Loans), and thereupon
the Commitments shall terminate immediately; provided that in the case
of the Commitment of the Swingline Lender with respect to its
obligation to advance Swingline Loans, the Swingline Lender may, by
notice to the Borrower (with a copy to the Administrative Agent) and
regardless of whether the Required Lenders elect to terminate the
Commitments hereunder, terminate such Commitment, and thereupon such
Commitment shall terminate immediately,"
15. Amendment to Section 9.01. Section 9.01(d) of the Credit
Agreement is hereby redesignated as Section 9.01(e) and a new (d) is added to
read as follows:
"(d) if to the Swingline Lender, to it at Bank of America, N.A.,
000 Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000, telecopy: 000-000-0000
and telephone: 000-000-0000.
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire."
16. Amendment to Section 9.02. Section 9.02(b)(vii) of the Credit
Agreement is hereby restated in its entirety to read as follows:
"(vii) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each
Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the
Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be."
17. Amendment to Section 9.03. Section 9.03 of the Credit Agreement
is hereby amended as follows to contain a reference to the Swingline Lender with
the result that the Swingline Lender shall be entitled to the reimbursement
provisions of paragraph (a) (ii), the indemnity provisions of paragraph (b) and
the reimbursement provisions of paragraph (c).
18. Amendment to Section 9.04. Sections 9.04(b)(i) and (e) of the
Credit Agreement are hereby restated in their entirety to read as follows:
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"(i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC Exposure
or Swingline Exposure, the Issuing Bank and the Swingline Lender) must
give their prior written consent to such assignment (which consent
shall not be unreasonably withheld),"
"(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank, or the Swingline Lender sell
participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of
this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same
extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.16(c) as though it were
a Lender."
19. Ratification. Each of the Company and each Guarantor hereby
ratifies all of its obligations under the Credit Agreement 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 shall continue
in full force and effect as amended and modified by this Amendment. Nothing in
this Amendment 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 Company or any
Guarantor released from any covenant, warranty or obligation created by or
contained herein.
20. Representations and Warranties. Each of the Company and each
Guarantor hereby represents and warrants to the Administrative Agent and the
Lenders that (a) this Amendment has been duly executed and delivered on behalf
of the Company and such Guarantor, as the case may be, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
laws
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affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law,
(b) this Amendment constitutes a valid and legally binding agreement enforceable
against the Company or such Guarantor, as the case may be, in accordance with
its terms, (c) the representations and warranties contained in the Credit
Agreement and the Loan Documents are true and correct on and as of the date
hereof in all material respects as though made as of the date hereof, except as
heretofore otherwise disclosed in writing to the Administrative Agent unless
such representations and warranties relate to an earlier date, or are untrue as
a result of transactions permitted by the Loan Documents, (d) no Default exists
under the Credit Agreement or under any of Loan Document and (e) the execution,
delivery and performance of this Amendment has been duly authorized by the
Company and each Guarantor.
21. Conditions to Effectiveness. This Amendment shall be effective
upon the execution and delivery hereof by all parties to the Administrative
Agent and receipt by the Administrative Agent of (a) this Amendment and (b) a
certificate of an officer of the Company certifying that all conditions in
Section 4.02 of the Credit Agreement shall be satisfied.
22. Counterparts. This Amendment 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.
23. Governing Law. THIS AMENDMENT, 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.
24. Final Agreement of the Parties. THIS AMENDMENT 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
COMPANY:
U.S. CONCRETE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Senior Vice President
GUARANTORS:
Xxxx Concrete, Incorporated, a New Jersey corporation
Bay Cities Building Materials Co., Inc., a California
corporation
B.C.B.M. Transport, Inc., a California corporation
Central Concrete Supply Co., Inc. a California
corporation
Opportunity Concrete Corporation, a District of
Columbia corporation
X.X. Xxxxx/Associates, d/b/a/ Santa Xxxx Cast Products
Co., a California corporation
Xxxxxx'x Concrete, Inc., a California corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Vice President
ADMINISTRATIVE AGENT/LENDER:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx
Vice President
SYNDICATION AGENT/LENDER/SWINGLINE LENDER:
BANK OF AMERICA, N.A.,
f/k/a NationsBank, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
LENDER:
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
-------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
CO-AGENT/LENDER:
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
LENDER:
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
LENDER:
COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CO-AGENT/LENDER:
CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
