Exhibit 4.9
WAIVER
THIS WAIVER (this "Waiver"), dated as of August 8, 2003, among U.S.
CONCRETE, INC., a Delaware corporation (the "Company"), and the financial
institutions listed on the signature pages hereto as Purchasers (the
"Purchasers"), waive certain provisions of 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 by First Amendment to Note
Agreement dated as of November 30, 2001, and as further amended by the Second
Amendment to Note Agreement dated as of April 9, 2003 (as amended, modified
and/or supplemented prior to the date hereof, the "Agreement"); and
WHEREAS, the Company has requested that the Purchasers waive the
requirements of Section 6A(1) of the Agreement for the calendar quarter ended
June 30, 2003 and the Purchasers are willing to waive such requirements in
accordance with the terms of this Waiver and the Company has obtained a similar
waiver of the Principal Bank Lending Agreement (the "Similar Amendment");
NOW, THEREFORE, it is agreed:
1. Effective on the Effective Date (as defined below),and provided that
the ratio described in paragraph 6A(1) of the Agreement for the quarter ended
June 30, 2003 is not greater than 3.90 to 1.00, the Purchaser hereby waives
compliance by the Company with the covenant contained in Section 6A(1) of the
Agreement, only to the extent required to avoid a Default, only for the calendar
quarter ended June 30, 2003, but not thereafter.
2. This Waiver is limited solely to the purposes and to the extent
provided herein and shall have no applicability to any obligation of the Company
except those described in Section 6A(1) of the Agreement. This Waiver shall not
be construed to be a waiver, except as specifically provided in paragraph 1 of
this Waiver, (i) of any term, condition or provision of the Agreement or (ii) of
any Default or Event of Default that has or may have occurred or occurs other
than as specified in paragraph 1. Except as specifically provided herein, the
Agreement will continue in full force and effect.
Waiver of U.S. Concrete Note Agreement 1
3. To induce the Purchasers to enter into this Waiver, 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 Waiver and that no
agreement has been made with the parties to the Similar Amendment in connection
with the Similar Amendment except as is included in the Similar Amendment. The
Company has provided to each of the Purchasers a true and correct copy of the
Similar Amendment.
4. To induce the Purchasers to enter into this Waiver, 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 Waiver.
5. This Waiver 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 WAIVER 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 WAIVER TO
BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH OR THE RIGHTS OF THE PARTIES TO BE
GOVERNED BY THE LAWS OF ANY OTHER JURISDICTION).
7. This Waiver shall become effective on the date (the "Effective Date")
when (i) 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, and (ii)
the Company shall have paid to the Purchasers any fees agreed to by the Company
and the Purchasers in connection with this Waiver. This Waiver shall remain
effective through the maturity of the Subordinated Notes or until such time as a
default occurs under the Principal Bank Lending Agreement by reason of the
Company's failure to comply with the similar covenant contained in the Principal
Bank Lending Agreement for the calendar quarter ended June 30, 2003.
8. The Company confirms its agreement in paragraph 12B of the Agreement
to pay the fees and expenses of the Purchasers special counsel, Xxxxxx Xxxxxx &
Xxxxx, in connection with this Waiver.
9. From and after the Effective Date, all references in the Agreement
shall be deemed to be references to the Agreement as waived hereby.
[Rest of Page Intentionally Left Blank]
Waiver of U.S. Concrete Note Agreement 2
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute and deliver this Waiver as of the date
first above written.
"Company"
U.S. CONCRETE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President and Chief
Operating Officer
"Purchasers"
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Vice President
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Director
---------------------------------
TEACHERS INSURANCE & ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Title: Managing Director - Private
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Placements
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Waiver of U.S. Concrete Note Agreement 3
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/ Xxxxxx Xxxxxx
---------------------------------
Title: Senior Portfolio Manager
---------------------------------
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Title: Managing Director
---------------------------------
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Senior Portfolio Manager
---------------------------------
SOUTHERN FARM BUREAU LIFE
INSURANCE COMPANY
By:
---------------------------------
Title:
---------------------------------
Waiver of U.S. Concrete Note Agreement 4
Acknowledged and Agreed to:
"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 Michigan, Inc., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
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
Waiver of U.S. Concrete Note Agreement 5
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
B.W.B., Inc. of Michigan, a Delaware
corporation
Central Concrete Corp., a Delaware
corporation
Superior Concrete Materials, Inc. (f/k/a
Opportunity Concrete Corporation, a
District of Columbia corporation)
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Vice President
Waiver of U.S. Concrete Note Agreement 6
Wyoming Concrete Industries, Inc., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Vice President
Waiver of U.S. Concrete Note Agreement 7
