AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment
No. 3 to
the
Amended
and Restated Credit Agreement,
dated
as of July 11, 2008 (this “Amendment”),
among
U.S.
Concrete, Inc., a
Delaware corporation (the “Borrower”),
the
Lenders, the Issuers and Citicorp
north america, Inc.,
as
agent for the Lenders and the Issuers and as agent for the Secured Parties
under
the Collateral Documents (in such capacity, the “Administrative
Agent”);
Bank
of
America, N.A.,
in its
capacity as syndication agent for the Lenders and the Issuers (the “Syndication
Agent”)
and
JPMorgan
Chase Bank,
in its
capacity as documentation agent for the Lenders and the Issuers (the
“Documentation
Agent”).
Preliminary
Statements
Capitalized
terms defined in the Credit Agreement (as defined below) and not otherwise
defined in this Amendment are used herein as therein defined.
The
Borrower, the Lenders, the Issuers, the Administrative Agent, the Syndication
Agent and the Documentation Agent are parties to that certain Amended and
Restated Credit Agreement dated as of June 30, 2006 (as the same has been
amended by Amendment No. 1 dated March 1, 2007 and Amendment No. 2 dated
November 6, 2007, and has been otherwise amended, supplemented or modified
from
time to time until the date hereof, the “Credit
Agreement”).
The
Borrower has requested that Section
8.5 (Restricted Payments) and
Section
8.6 (Prepayment and Cancellation of Indebtedness) of
the
Credit Agreement be amended to allow Restricted Payments and redemptions of
the
New Notes and Additional Notes in an aggregate amount not exceeding
$30,000,000.
The
parties hereto agree to amend the Credit Agreement upon the terms and subject
to
the conditions set forth herein.
SECTION
1. Amendments.
Subject
to the satisfaction of the conditions precedent set forth in Section 2 hereof,
the Credit Agreement is hereby amended as follows:
(a) Section
8.5 (Restricted Payments)
of the
Credit Agreement is hereby amended by amending and restating clause (d)
thereof
in its entirety as follows:
(d) as
long
as no Default or Event of Default has occurred and is then continuing both
before and after giving effect to any such Restricted Payment, Restricted
Payments made by the Borrower in an aggregate amount (when taken together with
amounts paid under Section 8.6(b)(ii)) not to exceed $30,000,000; provided,
that
the Available Credit (after giving effect to such proposed Restricted Payment)
at such time exceeds $50,000,000.
(b) Section
8.6 (Prepayment and Cancellation of Indebtedness)
of the
Credit Agreement is hereby amended by amending and restating clause (b)
thereof
in its entirety as follows:
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(b) The
Borrower shall not, nor shall it permit any of its Subsidiaries to, prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any subordination
terms of, any Subordinated Indebtedness; provided,
however, that
the
Borrower and each Subsidiary of the Borrower may redeem the New Notes and/or
the
Additional Notes (i) with the proceeds of Permitted Subordinated Debt or (ii)
so
long as no Default or Event of Default has occurred and is then continuing
both
before and after giving effect to such redemption, in an aggregate purchase
price amount (when taken together with Restricted Payments made pursuant to
Section 8.5(d)) not to exceed $30,000,000; provided, that in the case of this
clause (ii), the Available Credit (after giving effect to such redemption)
at
such time exceeds $50,000,000.
SECTION
2. Conditions
to Effectiveness.
This
Amendment shall become effective on the date when each of the following
conditions precedent have first been satisfied (the “Effective
Date”):
(a) Certain
Documents. The
Administrative Agent shall have received counterparts of each of the following,
each dated the Effective Date (unless otherwise agreed by the Administrative
Agent), in form and substance satisfactory to the Administrative
Agent:
(i) this
Amendment executed by the Borrower, the Administrative Agent and the Requisite
Lenders; and
(ii) a
consent
and reaffirmation in respect of this Amendment in the form attached hereto,
executed by each Guarantor.
(b) Fees
and Expenses Paid.
There
shall have been paid to the Administrative Agent (i) for the account of each
Lender that executes and delivers this Amendment on or prior to 12:00 p.m.
Eastern Time on July 10, 2008, an amount equal to 0.05% of the Revolving Credit
Commitments of such Lender, which the Administrative Agent shall remit to each
relevant Lender upon the Effective Date and (ii) for the account of the
Administrative Agent, the reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel) of the Administrative Agent due and
payable on or before the Effective Date.
SECTION
3. Construction
with the Loan Documents.
(a) On
and
after the Effective Date, each reference in the Credit Agreement to
“this
Agreement,”
“hereunder,”
“hereof,”
“herein,”
or
words of like import, and each reference in the other Loan Documents to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby, and this Amendment and the Credit Agreement shall be read
together and construed as a single instrument. The table of contents, signature
pages and list of Exhibits and Schedules of the Credit Agreement shall be deemed
modified to reflect the changes made by this Amendment.
(b) Except
as
expressly amended hereby, all of the terms and provisions of the Credit
Agreement and all other Loan Documents are and shall remain in full force and
effect and are hereby ratified and confirmed, including the respective
guarantees and security interests granted pursuant to the respective Loan
Documents.
2
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of
the Lenders, the Issuers, the Arrangers or the Agents under any of the Loan
Documents, nor constitute a waiver or amendment of any provision of any of
the
Loan Documents or for any purpose except as expressly set forth
herein.
(d) This
Amendment is a Loan Document.
(e) This
Amendment shall not extinguish, discharge or release the Lien or priority of
any
Loan Document or any other security therefor or any guarantee thereof. The
Credit Agreement and each of the other Loan Documents shall remain in full
force
and effect, except as modified hereby in connection herewith.
SECTION
4. Governing
Law.
This
Amendment is governed by, and shall be construed in accordance with, the law
of
the State of New York.
SECTION
5. Representations
And Warranties.
The
Borrower hereby represents and warrants that each of the representations and
warranties made by it in the Credit Agreement, as amended hereby, and the other
Loan Documents to which it is a party, shall be true and correct in all material
respects on and as of the date hereof (other than representations and warranties
in any such Loan Document which expressly speak as of a specific date, which
shall have been true and correct in all material respects as of such specific
date) and no Default or Event of Default has occurred and is continuing as
of
the date hereof.
SECTION
6. Execution
in Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
in separate counterparts, each of which when so executed shall be deemed to
be
an original and all of which taken together shall constitute one and the same
agreement. Signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are attached
to
the same document. Delivery of an executed counterpart by telecopy shall be
effective as delivery of a manually executed counterpart of this
Amendment.
[Signature
Pages Follow]
3
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.
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U.S.
CONCRETE, INC.
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as
Borrower
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Executive
Vice President and Chief
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Financial
Officer
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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as
Administrative Agent, Swing Loan Lender and
Lender
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/s/
Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Vice
President
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Bank
of America, N.A., as Syndication Agent
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and
Lender
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By:
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/s/
Xxx X. Xxxxxxxxxxx
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Name:
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Xxx
X. Xxxxxxxxxxx
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Title:
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Senior
Vice President
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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JPMorgan
Chase Bank, as Documentation
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Agent
and Lender
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By:
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/s/
Xxxxxxxx Jeans
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Name:
Xxxxxxxx Jeans
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Title:
Vice President
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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Branch
Banking and Trust Co., as Lender
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Senior Vice President
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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Capital
One, N.A., as Lender
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By:
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/s/
Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Senior Vice President
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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Comerica
Bank, as Lender
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By:
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/s/
De Xxx Xxxx
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Name:
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De
Xxx Xxxx
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Title:
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Corporate
Banking Officer
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
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Xxxxx
Fargo & Company, as Lender
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By:
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/s/
Xxxx Xxxxxxx
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Name:
Xxxx Xxxxxxx
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Title:
Vice President
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[SIGNATURE
PAGE – AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
CONSENT
AND REAFFIRMATION OF GUARANTORS
Dated
as
of July 11, 2008
Each
of
the undersigned, as a Guarantor under the Guaranty dated as of March 12, 2004
(the “Guaranty”),
and
as a Loan Party under each Collateral Document to which it is a party, hereby
consents to that certain Amendment No. 3 to Amended and Restated Credit
Agreement dated as of the date hereof and to which this consent and
reaffirmation is attached (the “Amendment”)
and
hereby confirms and agrees that notwithstanding the effectiveness of the
Amendment and the Increase thereunder and as defined therein, the Guaranty
and
all Liens granted by it pursuant to the Collateral Documents are, and shall
continue to be, in full force and effect and are hereby ratified and confirmed
in all respects, except that, on and after the effectiveness of the Amendment,
each reference in the Guaranty and such Collateral Documents to the
“Credit
Agreement”,
“thereunder”,
“thereof”
or
words of like import shall mean and be a reference to the Credit Agreement,
as
amended by the Amendment.
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Eastern
Concrete Materials, Inc.
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Xxxxx
Gravel Company
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Superior
Holdings, Inc.
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Titan
Concrete Industries, Inc.
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
Vice President and Secretary
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Breckenridge
Ready Mix, Inc.
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
Vice President
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Concrete
Acquisition II, LLC
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
Xxxxxx X. Xxxxx
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Title:
President and Secretary
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Alberta
Investments, Inc.
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Alliance
Haulers, Inc.
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American
Concrete Products, Inc.
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Atlas-Tuck
Concrete, Inc.
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Xxxxx
Concrete Enterprises, LLC
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Xxxxx
Industries, Inc.
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Xxxxx
Management, Inc.
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Builders’
Redi-Mix, LLC
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BWB,
Inc. of Michigan
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Central
Concrete Supply Co., Inc.
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Central
Precast Concrete, Inc.
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Xxxxxx
Concrete, LLC
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Master
Mix, LLC
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MG,
LLC
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Ready
Mix Concrete Company of Knoxville, LLC
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Redi-Mix
Concrete, L.P.
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Redi-Mix
GP, LLC
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Redi-Mix,
LLC
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San
Diego Precast Concrete, Inc.
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Sierra
Precast, Inc.
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Xxxxx
Pre-Cast, Inc.
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Superior
Concrete Materials, Inc.
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U.S.
Concrete On-Site, Inc.
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USC
Management Co., LLC
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USC
Payroll, Inc.
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By:
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/s/
Xxxx X. Xxxxxxxx
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Name:
Xxxx X. Xxxxxxxx
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Title:
Vice President and Secretary
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Concrete
XXXI Acquisition, Inc.
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Concrete
XXXII Acquisition, Inc.
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Concrete
XXXIII Acquisition, Inc.
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Concrete
XXXIV Acquisition, Inc.
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Concrete
XXXV Acquisition, Inc.
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Concrete
XXXVI Acquisition, Inc.
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By:
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/s/
Xxxx Xxxxxxxx
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Name:
Xxxx Xxxxxxxx
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Title:
President
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USC
Atlantic, Inc.
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
President and Secretary
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USC
Michigan, Inc.
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President and Secretary
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/s/
Xxxx Xxxx
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Name:
Xxxx Xxxx
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Title:
Vice President and Secretary
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