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EXHIBIT 4.7
FIRST AMENDMENT TO
CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), effective
as of June 30, 1999, is entered into by and among U.S. CONCRETE, INC., a
Delaware corporation, (the "Company"), the Guarantors party thereto, 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"), NationsBank, N.A. (D/B/A Bank of America, 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 (said Credit Agreement,
as amended and as may be 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 amend and modify 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
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 5.10. Section 5.10 of the Credit Agreement is
hereby restated in its entirety to read as follows:
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"SECTION 5.10. Collateral . (a) The Borrower will, and will
cause each of its Subsidiaries to, (i) within 60 days of the Effective
Date provide evidence satisfactory to the Administrative Agent that
substantially all Certificates of Title for each vehicle with a gross
vehicle weight in excess of 40,000 pounds, including all mixer trucks
and aggregate delivery trucks, owned by the Borrower or any Subsidiary
have been submitted to the appropriate state department of motor
vehicles or other regulatory authority as appropriate for the
jurisdiction of location of such vehicle for the purpose of having the
Administrative Agent for the benefit of the Lenders recorded as
lienholder on each of such Certificates of Title, (ii) within 30 days
of the acquisition after the Effective Date of any vehicle weighing in
excess of 40,000 pounds, provide evidence satisfactory to the
Administrative Agent that the Certificate of Title for such newly
acquired vehicle shall have been submitted to the appropriate state
department of motor vehicles or other regulatory authority as
appropriate for the jurisdiction of location of such vehicle for the
purpose of having the Administrative Agent for the benefit of the
Lenders recorded as lienholder on each such Certificate of Title;
provided, that in either case of (i) or (ii) above and so long as there
is no Default or Event of Default, any Certificate of Title which
evidences the Administrative Agent for the benefit of the Lenders as
lienholder shall be returned to the Borrower, (iii) promptly upon
receipt, provide to the Administrative Agent a copy of each Certificate
of Title submitted pursuant to clause (i) and (ii) above showing the
Administrative Agent as lienholder and (iv) use reasonably commercial
efforts to provide to the Administrative Agent within 60 days of the
Effective Date landlord's consents to the assignment of leasehold
estates not pledged pursuant to Section 4.01(c)(iv) and to execute
leasehold deeds of trust or mortgages, subject only to Permitted Liens,
granting a first priority perfected security interest in such leasehold
interests.
(b) Upon acquisition of any (i) fee interest in any
real property or (ii) material leasehold interest in any real property
used in the operation (as opposed to administration) of the business of
the Borrower or any Subsidiary, the Borrower will, and will cause each
of its Subsidiaries to, (y) execute in form and substance reasonably
satisfactory to the Administrative Agent, a deed of trust or mortgage,
as applicable, in respect of such fee interest and (z) use reasonably
commercial efforts to execute in form and substance reasonably
satisfactory to the Administrative Agent, a leasehold deed of trust or
mortgage, as applicable, in each case granting a first priority
perfected Lien on such property as collateral for the Loans, subject
only to Permitted Liens.
(c) The Borrower will, and will cause each of its
Subsidiaries to, use reasonably commercial efforts in negotiating any
material new lease or the
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renewal or extension of any existing lease covering real property to
provide in such lease that the interest of the lessee may be
hypothecated without any further approval of the landlord.
(d) The Borrower shall provide to the Administrative
Agent certified copies of Requests for Information or Copies (Form
UCC-11) or equivalent commercially obtained reports, dated within 90
days of the Effective Date listing all effective financing statements
which name any of the Borrower or any Founding Company or any of their
Subsidiaries (under any of their present names and any previous names)
as debtor and which are filed in all jurisdictions in which the
Borrower or any of its Subsidiaries owns property or conducts business,
together with copies of such financing statements.
(e) The Borrower shall provide to the Administrative
Agent, upon request, a bring down or date down certificate to any
preliminary title reports provided pursuant to Section 4.01(q), as
evidence to the Administrative Agent of satisfactory release of any
financing or tax lien encumbering any property subject to the Security
Documents delivered pursuant to Section 4.01(c)(iv)."
3. Amendment to Section 6.02(d). Section 6.02(d) of the Credit
Agreement is 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 July 31, 1999; and"
4. 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.
5. 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,
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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, (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, (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.
6. 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.
7. 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.
8. Governing Law. THIS 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.
9. 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 thereunto duly authorized
as of the date first above written.
COMPANY:
U.S. CONCRETE
By:
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:
Xxxxxxx X. Xxxxxx
Vice President
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ADMINISTRATIVE AGENT/LENDER:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By:
Xxxxx X. Dolphin
Senior Vice President
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SYNDICATION AGENT/LENDER:
NATIONSBANK, N.A.
(D/B/A BANK OF AMERICA, N.A.)
By:
Name:
Title:
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LENDER:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
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CO-AGENT/LENDER:
BANK ONE, TEXAS, N.A.
By:
Name:
Title:
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LENDER:
BRANCH BANKING & TRUST COMPANY
By:
Name:
Title:
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LENDER:
COMERICA BANK
By:
Name:
Title:
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CO-AGENT/LENDER:
CREDIT LYONNAIS
NEW YORK BRANCH
By:
Name:
Title:
