Exhibit 4.4
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), effective as of April 4, 2003, 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") 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, is hereinafter referred to as, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested the Lenders and the Administrative
Agent to further amend certain 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 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 Amendment and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
2. Amendment to Section 6.8(a). Section 6.8(a) of the Credit Agreement is
hereby amended by deleting subclause (ii) in its entirety and replacing it with
the following:
" (ii) cash interest expense, actually paid during such
period (including the interest expense portion of any
payments on Capitalized Lease Obligations but net of cash
interest income actually received during such period) plus
Maintenance Capital Expenditures for said period, to be less
than (y) for the period ended March 31, 2003 and the period
ending June 30, 2003, 1.5 to 1.0; and (z) for the period
ending September 30, 2003 and thereafter during the term
hereof, 1.75 to 1.0."
3. Amendment to Section 6.8(d). Section 6.8(d) of the Credit Agreement is
hereby amended by deleting subclause (ii) in its entirety and replacing it with
the following:
" (ii) EBITDA calculated on a rolling four (4) quarters
basis, to be greater than (A) for the period ended March 31,
2003 and the period ending June 30, 2003, 3.50 to 1.0; and
(B) thereafter during the term hereof, 3.25 to 1.0."
4. Amendment to Section 6.11. Section 6.11 of the Credit Agreement is
hereby amended by deleting the first paragraph thereof in its entirety and
replacing it with the following:
"The Borrower will not, and will not permit any Subsidiary
to, acquire (i) any securities of, stock or outstanding
ownership interests in, any Person, or (ii) all or
substantially all of the assets of any Person, whether
through purchase of assets, merger or otherwise without the
prior written consent of the Required Lenders; provided,
however, that commencing on July 1, 2003 and continuing
thereafter during the term hereof, the Borrower and/or any
Subsidiary shall be entitled to consummate transactions
permitted by Section 6.3 and Section 6.4, and make any
Acquisition of (x) any wholly owned Guarantor, or (y) any
entity created by the merger, conversion, recapitalization
or other restructuring of any entity described in (x) above,
provided that after such merger, conversion,
recapitalization or other restructuring, all or
substantially all of such entity's assets consist of the
securities of, outstanding ownership interests in, or assets
of the entities described in (x) above; and further
provided, that commencing on July 1, 2003 and continuing
thereafter during the term hereof, the Borrower and/or any
Subsidiary may make any Acquisition without the consent of
the Required Lenders, so long as Borrower is in compliance
with the following:"
5. 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
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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 as amended and modified by this Amendment.
Except as amended or 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 Borrower or any Guarantor released
from any covenant, warranty or obligation created by or contained therein or
herein.
6. 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 Amendment has been
duly executed and delivered on behalf of the Borrower and such Guarantor, (b)
this Amendment 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, 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 Amendment has been duly
authorized by the Borrower and each Guarantor.
7. Conditions to Effectiveness. This Amendment shall be effective upon
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 Amendment.
8. 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.
9. Governing Law. This Amendment, 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.
10. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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 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
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
Wyoming Concrete Industries, Inc., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxxxxx
Vice President
Administrative Agent/Lender:
JPMORGAN CHASE BANK, formerly known as
The Chase Manhattan Bank
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Syndication Agent/Lender:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
Syndication Agent/Lender:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
Documentation Agent/Lender:
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Lender:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Lender:
BANK ONE, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
Director
Lender:
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Director
Co-Managing Agent/Lender:
US BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
Lender:
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Lender:
GUARANTY BANK
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Vice President
