Contract
This
Amendment
No.
4 and
Waiver
to the Amended
and Restated Credit Agreement, dated as of February 19, 2010 (this “Amendment”), among U.S.
Concrete, Inc., a Delaware corporation (the “Borrower”), the Lenders party
hereto, 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, Amendment No. 2 dated
November 6, 2007 and Amendment No. 3 dated July 11, 2008, and has been otherwise
amended, supplemented or modified from time to time, the “Credit
Agreement”).
The
Borrower has requested that the Lenders agree to amend certain provisions of the
Credit Agreement and to grant temporary and permanent waivers of certain
potential Defaults and/or Events of Default, as more fully set forth
herein.
The
parties hereto agree to amend the Credit Agreement and grant certain waivers
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 3 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 1.1(Defined Terms) is
hereby amended as follows:
(i) By
adding thereto in the appropriate alphabetical order the following
definitions:
“Applicable Amount” means, (i)
from and after the Fourth Amendment Effective Date to but excluding the date on
which a weekly Borrowing Base Certificate is delivered pursuant to the last
sentence of Section
6.12(a), $22,500,000, (ii) thereafter, until and including April 30,
2010, $20,000,000 and (iii) after April 30, 2010,
$25,000,000. Notwithstanding the foregoing, from and after the
Administrative Agent’s receipt of a Payment Notice (or, if earlier, the date
upon which the Borrower was required to deliver a Payment Notice), the
Applicable Amount shall be $25,000,000.”
“Defaulting Lender” means any
Revolving Credit Lender that (a) has failed to fund any portion of its Loans or
participations in Letters of Credit or Swing Loans required to be funded by it
hereunder within 2 Business Days of the date required to be funded by it
hereunder, (b) has notified the Administrative Agent, any Issuer, the Swing Loan
Lender, any Lender and/or the Borrower in writing that it does not intend to
comply with any of its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement, (c) has otherwise failed to pay over
to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within 3 Business Days of the date when due, unless the
subject of a good faith dispute, or (d) becomes (or is) the subject of any
action or proceeding of a type described in Section 9.1(f) (or any
comparable proceeding initiated by a regulatory authority having jurisdiction
over such Revolving Credit Lender).”
“Excluded Equity” has the
meaning set forth in clause (b) of the definition of “Excluded
Collateral”.
“Excluded JV Assets” has the
meaning set forth in clause (c) of the definition of “Excluded
Collateral”.
“Fourth Amendment Effective
Date” means February 19, 2010.”
“Leasehold Interests” has the
meaning set forth in clause (d) of the definition of “Excluded
Collateral”.
“Payment Notice” means any
written notice required to be delivered by the Borrower pursuant to Section 4(c)
of that certain Amendment No. 4 and Waiver to Amended and Restated Credit
Agreement, dated as of February 19, 2010, by and among the Borrower, the Lenders
party thereto, the Issuers and the Administrative Agent.
(ii) by
amending and restating the definition of “Applicable Margin” in its entirety as
follows:
“Applicable Margin” means,
with respect to Revolving Loans maintained as (i) Base Rate Loans, a rate equal
to 3.00% per annum and (ii) Eurodollar Rate Loans, a rate equal to 4.00% per
annum.
(iii) by
amending and restating the definition of “Applicable Unused Commitment Fee Rate”
in its entirety as follows:
“Applicable Unused Commitment Fee
Rate” means 0.75% per annum.
(iv) by
deleting the phrase “Facilities Increase Notice,” from the definition of
“Approved Electronic Communications”.
(v) by
amending and restating the definition of “Borrowing Base” in its entirety as
follows:
“Borrowing Base” means, at any
time, (a) the sum of (i) the product of 85% and the face amount of all Eligible
Receivables of the Borrowing Base Contributors (calculated net, without
duplication, of all finance charges, late fees and other fees that are unearned,
unpaid sales, excise or similar taxes, and credits or allowances granted at such
time), (ii) the product of (x) the product of 85% multiplied by the Orderly
Liquidation Value Inventory Rate multiplied by (y) the value
of the Eligible Inventory of the Borrowing Base Contributors (valued, in each
case, at the lower of cost or market on a first-in, first-out basis) at such
time and (iii) the lesser of (x) $20,000,000 and (y) the product of 85% of the
Orderly Liquidation Value Of Eligible Trucks of the Borrowing Base Contributors
at such time, minus (b)
any Eligibility Reserve then in effect and applicable to the Borrowing Base
Collateral.
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(vi) by
deleting the proviso in the definition of “Borrowing Base Contributors” and
replacing the semi-colon before such proviso with a period.
(vii) by
deleting the phrase “$15 million” from the definition of “Covenant Termination
Date” and substituting therefor the phrase “the Applicable Amount”.
(viii) by
adding to the end of the definition of “EBITDA” the following
sentence:
“In no event shall the calculation of
“EBITDA” include any gain or loss from the early extinguishment or repurchase of
Indebtedness.”
(ix) by
amending and restating the definition of “Excluded Collateral” in its entirety
as follows:
“Excluded Collateral means (a)
the aggregates quarry owned by Eastern Concrete Materials, Inc. (“EMI”) located in Hamburg, New
Jersey and any equipment or other assets of EMI used in the operation of such
quarry in the ordinary course of business and consistent with past practice,
together with any proceeds and products of any of the foregoing (including
Accounts and intangible assets pertaining thereto) (collectively, the “Quarry”); provided that “Excluded
Collateral” shall not include any mined Inventory produced from such quarry to
the extent the same is owned by EMI, (b) the equity interests of the Excluded
Joint Venture (the “Excluded
Equity”), (c) the assets owned by the Excluded Joint Venture (the “Excluded JV Assets”), (d) any
real estate assets leased by the Borrower and its Subsidiaries (the “Leasehold Interests”) and (e)
any real estate assets owned by the Borrower and its Subsidiaries.
(x) by
amending and restating the definition of “Excluded Joint Ventures” in its
entirety as follows:
“Excluded Joint Venture” means
Superior Materials Holdings LLC and its direct and indirect
Subsidiaries.”
(xi) by
amending and restating the definition of “Excluded Subsidiary” in its entirety
as follows:
“Excluded Subsidiary” means
Xxxxx Investment Corporation, Inc., a Delaware corporation.
(xii) by
deleting the definitions of “Facilities Increase”, “Facilities Increase Date”
and “Facilities Increase Notice” in their entireties.
(xiii) by
amending and restating the definition of “Fee Letters” in its entirety as
follows:
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“Fee Letters” means (a) the
Administrative Agency Fee Letter and (b) the Facilities Fee Letter.
(xiv) by
adding the following proviso to the end of the definition of “Fixed
Charges”:
“; provided that to the extent that the
New Notes and/or the Additional Notes are exchanged or satisfied through an
Equity Issuance and/or the incurrence of Permitted Subordinated Debt, then Cash
Interest Expense under clause
(a) hereof shall be calculated on a pro forma basis as though such New
Notes and/or the Additional Notes were exchanged or satisfied as of the first
day of the relevant period and, to the extent any Permitted Subordinated Debt
was incurred in connection therewith, as though such Permitted Subordinated Debt
was incurred on the first day of the relevant period.”
(xv) by
amending and restating the definition of “Lender” in its entirety as
follows:
“Lender” means the Swing Loan
Lender and each other financial institution or other entity that (a) is listed
on the signature pages hereof as a “Lender” or (b) from time to time becomes a
party hereto by execution of an Assignment and Acceptance.
(xvi) by
amending and restating the definition of “Net Cash Proceeds” in its entirety as
follows:
“Net Cash Proceeds” means
proceeds received by the Borrower or any of its Subsidiaries after the Effective
Date in cash or Cash Equivalents from any (a) Asset Sale, other than an Asset
Sale permitted under Section
8.4 (a), (b), (c)(i), (d) or (e) (Sale of Assets), net of (i) the
reasonable cash costs of sale, assignment or other disposition (including a
reasonable reserve for liabilities retained by the Borrower or such Subsidiary
in connection with such Asset Sale; it being understood that “Net Cash Proceeds” shall
include, without limitation, any reversal of a reserve described in this clause (i) or, if such
liabilities have not been satisfied in cash and such reserve not reversed within
the longer of (x) 365 days after such Asset Sale and (y) the applicable
contractual limitations period, the amount of such reserve), (ii) taxes paid or
reasonably estimated to be payable as a result thereof and (iii) any amount
required to be paid or prepaid on Indebtedness (other than the Obligations)
secured by the assets subject to such Asset Sale, provided, however, that
evidence of each of clauses
(i), (ii) and (iii) above is provided to
the Administrative Agent in form and substance satisfactory to it, (b) Property
Loss Event or (c)(i) Equity Issuance (other than any such issuance of Stock
(other than Disqualified Stock) of the Borrower (x) occurring in the ordinary
course of business to any director, member of the management or employee of the
Borrower or its Subsidiaries, (y) the proceeds of which are used, within 15 days
following the Borrower’s receipt thereof, as all or a portion of the
consideration for any Permitted Acquisition or (z) the proceeds of which are
used to prepay, redeem, purchase, defease or otherwise satisfy the New Notes
and/or the Additional Notes), or (ii) any Debt Issuance permitted under Section 8.1 (j) or (l)
(Indebtedness), in each case net of brokers’ and advisors’ fees and other
costs incurred in connection with such transaction; provided, however, that in
the case of this clause
(c), evidence of such costs is provided to the Administrative Agent in
form and substance reasonably satisfactory to it.”
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(xvii) by
deleting in its entirety the final paragraph of the definition of “Permitted
Acquisition”.
(xviii) by
amending and restating the definition “Permitted Subordinated Debt” in its
entirety as follows:
“Permitted Subordinated Debt”
means Subordinated Indebtedness issued (i) in exchange for, satisfaction of, or
(ii) to refinance, replace, or extend all or any part of the Borrower’s and its
Subsidiaries’ obligations under the New Notes and the Additional Notes; provided that the terms of
such Subordinated Indebtedness shall be reasonably satisfactory to the
Administrative Agent.”
(xix) by
amending and restating the definition of “Revolving Credit Commitment” in its
entirety as follows:
“Revolving Credit Commitment”
means, with respect to each Revolving Credit Lender, the commitment of such
Revolving Credit Lender to make Revolving Loans and acquire interests in other
Revolving Credit Outstandings in the aggregate principal amount outstanding not
to exceed the amount set forth opposite such Revolving Credit Lender’s name on
Schedule I
(Commitments) under the caption “Revolving Credit Commitment”
(as amended to reflect each Assignment and Acceptance executed by such Revolving
Credit Lender) and as such amount may be reduced pursuant to this
Agreement. The aggregate amount of the Revolving Credit Commitments
as of the Fourth Amendment Effective Date is $90,000,000.
(xx) by
deleting the definition of “SPE” in its entirety.
(xxi) by
amending and restating the definition of “Swing Loan Sublimit” in its entirety
as follows:
“Swing Loan Sublimit” means
$10,000,000.”
(xxii) by
amending and restating the definition of “Trigger Event” in its entirety as
follows:
“Trigger Event” means the
occurrence of the Fourth Amendment Effective Date.
(b) Article II (The Facilities)
is hereby amended as follows:
(i) By
deleting the text of clause
(b) of Section 2.1 (The
Commitments) in its entirety and substituting the phrase “Intentionally
Omitted” therefor.
(ii) By
amending and restating in its entirety the text of clause (d) of Section 2.3 (Swing Loans) as
follows:
“The Swing Loan Lender may demand at
any time (and on at least a weekly basis) that each Revolving Credit Lender pay
to the Administrative Agent, for the account of the Swing Loan Lender, in the
manner provided in clause
(e) below, such Revolving Credit Lender’s Ratable Portion of all or a
portion of the outstanding Swing Loans, which demand shall be made through the
Administrative Agent, shall be in writing and shall specify the outstanding
principal amount of Swing Loans demanded to be paid.”
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(iii) By
adding the following new Section 2.18 (Defaulting
Lenders):
“Section 2.18 Defaulting
Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then
the following provisions shall apply for so long as such Revolving Credit Lender
is a Defaulting Lender:
(a) if
any Letter of Credit Obligations exist at the time a Revolving Credit Lender
becomes a Defaulting Lender, then the Borrower shall within 15 Business Days (or
such longer period as the Administrative Agent and relevant Issuer may agree to)
following written notice by the Administrative Agent (A) cash collateralize such
Defaulting Lender’s share of the Letter of Credit Obligations in accordance with
the procedures set forth in Section 9.3 (Actions in Respect of Letters of
Credit) for so long as such Letter of Credit Obligations are outstanding,
or (B) enter into other arrangements reasonably satisfactory to the
Administrative Agent, the Issuer, the Swing Loan Lender and the Borrower (it
being understood and agreed that once a Lender is no longer a Defaulting Lender
and has satisfied all of its obligations under this Agreement, the cash
collateral referenced in clause (A) above of this
Section 2.18 shall be
returned promptly to the Borrower); and
(b) so
long as any Revolving Credit Lender is a Defaulting Lender, the Swing Loan
Lender shall not be required to fund any Swing Loan and no Issuer shall be
required to issue, amend or increase any Letter of Credit, unless such Swing
Loan Lender or Issuer is satisfied that the related exposure will be cash
collateralized in accordance with Section 2.18(a) (or such
other arrangements as are reasonably satisfactory to the Administrative Agent,
the Issuer, the Swing Loan Lender and the Borrower).
The
rights and remedies against a Defaulting Lender under this Section 2.18 are in addition
to other rights and remedies that Borrower, the Administrative Agent, the
Issuer, the Swing Loan Lender and the non-Defaulting Lenders may have against
such Defaulting Lender. The arrangements permitted or required by
this Section 2.18 shall
be permitted under this Agreement, notwithstanding any limitation on Liens or
otherwise.”
(c) Clause (c) of Section 3.2 (Conditions Precedent to
Each Loan and Letter of Credit) is hereby amended and restated as
follows:
“Borrowing
Base. The Borrower shall have delivered the Borrowing Base
Certificate required to be delivered by Section 6.12(a) (Borrowing
Base). After giving effect to the Loans or Letters of Credit
requested to be made or Issued on any such date and the use of proceeds thereof,
(i) the Revolving Credit Outstandings shall not exceed the Maximum Credit at
such time and (ii) the Available Credit shall not be less than the Applicable
Amount.”
(d) Section 3.4 (Conditions Precedent to
Each Facilities Increase) is hereby deleted in its entirety.
(e) Section 4.5 (Material Adverse
Change) is hereby amended by replacing the reference to “December 31,
2005” with “September 30, 2009”.
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(f) Section 4.6 (Solvency) is
hereby amended by adding the following proviso to the end thereof:
“; provided
that solely for the period from the Fourth Amendment Effective Date
to and including April 30, 2010, the representation and warranty set forth in
this Section 4.6 shall
not be made.”
(g) Section 5.1 (Minimum Fixed Charge
Coverage Ratio) is hereby amended and restated in its entirety as
follows:
“With respect to any fiscal month in
which the Available Credit is at any time less than the Applicable Amount (any
such month, the “Covenant
Commencement Date”), the Borrower shall maintain a Fixed Charge Coverage
Ratio, determined as of the last day of the fiscal month preceding the Covenant
Commencement Date for which the Lenders have received financial statements
pursuant to Section 6.1
(Financial Statements) and as of the last day of each fiscal month
occurring thereafter until the Covenant Termination Date, for the twelve fiscal
months ending on each such date, of at least 1:1.”
(h) Section 6.12 (Borrowing Base
Deliverables and Determination) is hereby amended as
follows:
(i) by
amending and restating clause
(a) thereof in its entirety as follows:
“(a) The
Borrower shall deliver, as soon as available and in any event not later than 10
Business Days after the end of each fiscal month, a Borrowing Base Certificate
as of the end of such fiscal month executed by a Responsible Officer of the
Borrower; provided,
that such Borrowing Base Certificate shall reflect available updated figures for
Eligible Receivables to the extent included on the most recent Borrowing Base
Certificate delivered pursuant to the next succeeding sentence. The
Borrower shall deliver, as soon as available and in any event not later than 3
Business Days after the end of the last day of each week (commencing no later
than the week ended March 5, 2010), an additional Borrowing Base Certificate as
of the end of such period (containing available updated figures for Eligible
Receivables) executed by a Responsible Officer of the Borrower.”
(ii) by
deleting from the first sentence of clause (b) thereof the
following language:
“(which request, with respect to
third-party appraisers, except during the existence of a Default or an Event of
Default when requests may be more frequent, shall not be made more frequently
than once per year with regard to the Borrowing Base Collateral)”:
(iii) by
amending and restating clause
(d) thereof in its entirety as follows:
“(d) The
Administrative Agent may, at the Borrower’s sole cost and expense, make test
verifications of the Accounts and physical verifications of the Inventory in any
manner and through any medium that the Administrative Agent considers advisable,
which such verifications shall be made at the reasonable discretion of the
Administrative Agent during normal business hours and, as long as no Default or
Event of Default has occurred and is continuing, following reasonable prior
notice to the Borrower, and the Borrower shall furnish all such assistance and
information as the Administrative Agent may reasonably require in connection
therewith. At any time and from time to time, upon the Administrative
Agent’s request and at the expense of the Borrower, the Borrower shall cause
independent public accountants or others satisfactory to the Administrative
Agent to furnish to the Administrative Agent reports showing reconciliations,
aging and test verifications of, and trial balances for, the
Accounts.
7
(iv) by
amending and restating clause
(e) thereof in its entirety as follows:
“(e) The
Borrower shall permit the Administrative Agent or any of its Affiliates (or one
of their representatives), at the Borrower’s sole cost and expense, to conduct
field examinations of the Borrowing Base Collateral, which such examinations
shall be made at the reasonable discretion of the Administrative Agent during
normal business hours and, as long as no Default or Event of Default has
occurred and is continuing, following reasonable prior notice to the
Borrower.”
(i) Section 7.9 (Application of
Proceeds) is hereby amended by adding the following proviso to the end
thereof:
“; provided that the proceeds of
the Loans shall be used by the Borrower (and, to the extent distributed to them
by the Borrower, each Loan Party) for amounts then due and payable or accrued
(such amounts as reasonably determined by the Borrower) in the ordinary course
of business and consistent with past practices and/or other amounts not to
exceed $500,000.
(j) Section 7.12 (Control Accounts;
Approved Deposit Accounts) is hereby amended as follows:
(i) by
amending and restating sub-clauses (x), (y) and (z) of clause (a) thereof as
follows:
“(x) payroll, withholding tax and other
fiduciary accounts, including accounts for which the funds on deposit therein
pertain to Liens permitted under clause (c) of the definition
of “Customary Permitted
Liens” or Liens permitted by Section 8.2(k) (Liens) (provided that neither the
Borrower nor any such Subsidiary may maintain funds in any such account in
excess of amounts which are actually accrued (or, in the case of fiduciary
accounts, otherwise required to be maintained therein) to its employees or the
relevant Governmental Authority or other beneficiary of such fiduciary account),
(y) unless a Default or Event of Default has occurred and is continuing, an
amount not to exceed $2,000,000 at the close of business on any Business Day in
account number 001390027679 at BofA to cover net disbursements made on behalf of
the Borrower and its Subsidiaries in the ordinary course of business and (z)
Excluded Deposit Accounts, provided further that (1)
from and after the Fourth Amendment Effective Date, all deposits into and
balances maintained in the Excluded Deposit Accounts shall be in the ordinary
course of business and consistent with past practices; provided, that no proceeds of
Loans may be deposited into an Excluded Deposit Account (other than to the
extent necessary to repay any amounts then overdrawn) and (2) to the extent the
aggregate balances in all Excluded Deposit Accounts at any time exceed $300,000
for a period of longer than 3 Business Days the Borrower shall, or shall cause
the relevant Subsidiary to, either (A) cause such amounts in excess of $300,000
to, within 1 Business Day, be transferred to an Approved Deposit Account or (B)
cause one or more Excluded Deposit Accounts to become an Approved Deposit
Account so that, after giving effect to the actions in clauses (A) and/or (B) the aggregate balance on
deposit in all Excluded Deposit Accounts shall not at any time exceed $300,000
for a period longer than 3 Business Days.”
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(ii) by
amending and restating the entire second sentence of clause (f) thereof as
follows:
“The Borrower may maintain a Securities
Account with Xxxxxxx Xxxxx which is not a Control Account for the sole purpose
of depositing therein deferred compensation payments on behalf of its employees
and officers in accordance with the Borrower’s existing incentive plan for which
accounts are maintained at Xxxxxxx Xxxxx (or any of its Affiliates) (the “Xxxxxxx Xxxxx Account”);
provided that the
aggregate amount from time to time on deposit therein shall not exceed an amount
equal to (a) $500,000 minus all distributions or withdrawals made from the
Xxxxxxx Xxxxx Account on or after the Fourth Amendment Effective Date plus (b)
the amount, if any, earned on the amounts on deposit in the Xxxxxxx Xxxxx
Account.”
(k) Section 8.1 (Indebtedness) is
hereby amended as follows:
(i) by
amending and restating clause
(j) thereof in its entirety as follows:
“(j) Any
Indebtedness of the Excluded Joint Venture in an aggregate amount not to exceed
$17,500,000 at any time; provided that (i) neither the
Borrower nor any of its Subsidiaries (other than the Excluded Joint Venture) is
(or may become) directly or indirectly liable (whether as a primary obligor,
surety or guarantor) for such Indebtedness and (ii) none of the assets of the
Borrower or any of its Subsidiaries (other than the Excluded Joint Venture and
Excluded Equity) is (or may become) subject to any Lien securing such
Indebtedness;”
(ii) by
inserting the phrase “prior to the Fourth Amendment Effective Date” immediately
prior to the phrase “$10,000,000” in clause (k)(ii)
thereof.
(iii) by
amending and restating clause
(m) thereof in its entirety as follows:
“(m) (i)
Indebtedness evidenced by the New Notes and the Additional Notes and (ii)
Permitted Subordinated Debt; and”.
(iv) by
deleting the text of clause
(n) thereof and substituting therefor the phrase “Intentionally
Omitted”.
(l) Section 8.2 (Liens, Etc.) is
hereby amended as follows:
(i) by
deleting the text of clause (g) thereof and substituting therefor the phrase
“Intentionally Omitted”.
(ii) by
deleting the text of clause
(i) thereof and substituting therefor the phrase “Intentionally
Omitted”.
(iii) by
adding the following new paragraph after clause (o)
thereof:
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“Notwithstanding anything in this Section 8.2 (Liens) or any
other provision of the Loan Documents to the contrary, after the Fourth
Amendment Effective Date, in no event shall the Borrower, nor shall it permit
any of its Subsidiaries to, create any Lien (except for Liens permitted by Section 8.2(a), (b), (c), (d) (solely in respect of
Liens upon Equipment and, solely in connection with any Permitted Acquisition,
Liens upon fixed assets acquired in such acquisition), (e), (f) (but only to the extent
of Liens securing operating leases of Equipment), (j) and (n), upon or with respect to
any Excluded Collateral (other than the Excluded JV Assets and Excluded
Equity).”
(m) Section 8.3 (Investments) is
hereby amended as follows:
(i) by
deleting the text of clause
(h) thereof and substituting therefor the phrase “Intentionally
Omitted”.
(ii) by
amending and restating clause
(i) thereof in its entirety as follows:
“(i) Investments
constituting (i) Permitted Acquisitions consummated prior to the Fourth
Amendment Effective Date and (ii) Permitted Acquisitions consummated on or after
the Fourth Amendment Effective Date so long as (A) the aggregate consideration
for all such acquisitions (including, without limitation, stock issued by the
Borrower or its Subsidiaries, cash payments, incurrence or assumption of
Indebtedness and/or earn-outs) does not exceed $6,000,000 and (B) both before
and after giving effect to any such Permitted Acquisition, the Available Credit
at such time exceeds the Applicable Amount (giving any pro forma effect to the
Borrowing Base as it relates to such Permitted Acquisition so long as the
Appraisal Requirement has been satisfied);”
(iii) by
amending and restating clause
(k) thereof in its entirety as follows:
“(k) Investments
in the Excluded Joint Venture existing as of the Fourth Amendment Effective Date
together with an additional amount not to exceed $2,250,000 in any Fiscal
Quarter and not to exceed $5,000,000 in the aggregate from and after the Fourth
Amendment Effective Date; provided, that five (5) days
in advance of any such Investment the Borrower shall provide written notice to
the Administrative Agent describing, in reasonable detail, the type, amount and
date of such Investment.”
(n) Section 8.4 (Sale of Assets)
is hereby amended as follows:
(i) by
amending and restating clause
(f) thereof in its entirety as follows:
“(f) any
Asset Sale of all or any part of the Excluded Joint Venture or the Excluded
Equity”.
(ii) by
amending and restating clause
(g) thereof in its entirety as follows:
“(g) as
long as no Default or Event of Default is continuing or would result therefrom,
any other Asset Sale for Fair Market Value, payable in cash upon such sale;
provided, however, that
with respect to any such Asset Sale pursuant to this clause (g), (i) the aggregate
consideration received during any Fiscal Year for all such Asset Sales shall not
exceed $3,000,000 and (ii) an amount equal to all Net Cash Proceeds of such
Asset Sale are applied to the payment of the Obligations as set forth in, and to
the extent required by, Section 2.9 (Mandatory
Prepayments); and”
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(iii) by
amending and restating clause
(h) thereof in its entirety as follows:
“(h) the
sale or disposition of personal property (other than Inventory) of the Borrower
and its Subsidiaries to the Excluded Joint Venture consummated in connection
with managing the Excluded Joint Venture in the ordinary course of business and
consistent with past practices.”
(iv) by
adding the following new paragraph immediately after clause (h)
thereof:
“Notwithstanding anything in this Section 8.4 (Sale of Assets)
to the contrary, after the Fourth Amendment Effective Date in no event may the
Borrower or any of its Subsidiaries permit an Asset Sale of any Excluded
Collateral (other than Excluded JV Assets, Excluded Equity and Leasehold
Interests) other than Asset Sales permitted by clauses (a), (b) (solely to
the extent of sales or dispositions of Equipment permitted thereunder), (e) and (g) of Section 8.4
hereof.”
(o) Section 8.5 (Restricted
Payments) is hereby amended as follows:
(i) by
deleting the phrase “$3,000,000” in clause (c) thereof and
substituting therefor the phrase “$1,000,000”.
(ii) by
inserting the phrase “prior to the Fourth Amendment Effective Date” after the
word “made” in clause
(d) thereof.
(p) Clause
(b) of Section 8.6 (Prepayment
and Cancellation of Indebtedness) is hereby amended and restated as
follows:
“(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 (including, without limitation, the New Notes and/or the Additional
Notes); provided that
the Borrower and each Subsidiary of the Borrower may prepay, redeem, purchase,
defease or otherwise satisfy the New Notes and/or the Additional Notes with the
issuance of, or the proceeds of, Permitted Subordinated Debt and/or an Equity
Issuance.”
(q) Section 8.7 (Restriction on
Fundamental Changes; Permitted Acquisitions) is hereby amended by adding
to the end thereof the following new sentence:
“Notwithstanding the foregoing, from
and after the Fourth Amendment Effective Date, the Borrower shall not, nor shall
it permit any of its Subsidiaries to, form, acquire, create or enter into (1)
any joint venture or partnership with any other Person (other than any
partnership among the Borrower and any Subsidiary Guarantor) or (2) any
Subsidiary that is not a Domestic Subsidiary.”
(r) Section 9.1 (Events of
Default) is hereby amended as follows:
11
(i) by
deleting the word “or” appearing at the end of clause (k)
thereof.
(ii) by
deleting the period at the end of clause (l) and replacing the
period with a semicolon and adding the word “or” after such
semicolon.
(iii) by
adding the following new clause (m) immediately after
clause (l)
thereof:
“(m) the
failure of the New Notes, Additional Notes or any other Subordinated
Indebtedness to be subordinated as provided by any subordination provision
related to such Indebtedness or any Loan Party shall contest in writing the
validity or enforceability of such provisions.”
SECTION
2. Waivers.
(a) Permanent
Waiver. The Lenders hereby waive any Default or Event of
Default arising under the Credit Agreement solely as a result of the Borrower’s
delivery of its 2009 Fiscal Year financials with a “going concern” opinion or
similar qualification.
(b) Temporary
Waiver. The Lenders hereby waive from the Fourth Amendment
Effective Date through 5:00 p.m. (New York time) on April 30, 2010, any Default
or Event of Default arising under the Credit Agreement as a result of any
failure by the Borrower to make its regularly scheduled interest payment due on
April 1, 2010 under the New Notes and the Additional Notes; it being understood
that if the Borrower has not made such regularly scheduled interest payment
under the New Notes and the Additional Notes by 5:00 p.m. (New York time) on
April 30, 2010 an immediate Event of Default shall occur on such
date.
SECTION
3. 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;
(ii) a
consent and reaffirmation in respect of this Amendment in the form attached
hereto, executed by each Guarantor;
(iii) a
certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying (A) the names and true signatures of each officer of such Loan Party
that has been authorized to execute and deliver this Amendment and/or the
attached Reaffirmation and Consent of Guarantors or other document required
hereunder to be executed by or on behalf of such Loan Party and (B) the
resolutions of such Loan Party’s Board of Directors (or equivalent governing
body) approving and authorizing the execution, delivery and performance of this
Amendment and/or the attached Reaffirmation and Consent of Guarantors and the
other documents required hereunder to be executed by or on behalf of such Loan
Party; and
12
(iv) a
certificate from a Responsible Officer of the Borrower certifying that the
representations and warranties set forth in Section 7 of this Amendment
are true and correct in all material respects as of the Effective
Date.
(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 5:00 p.m. Eastern Time on February 19, 2010, an amount equal to
0.10% of the Revolving Credit Commitments of such Lender (after giving effect to
the reduction described in Section 8 below and as set forth on the amended Schedule I (Commitments)
attached hereto), which the Administrative Agent shall remit to each relevant
Lender upon the Effective Date and (ii) for the account of the Administrative
Agent, the fees and expenses (including reasonable fees and out-of-pocket
expenses of the Administrative Agent’s outside counsel) of the Administrative
Agent then due and payable on or before the Effective Date.
SECTION
4. Additional
Covenants.
(a) On
or prior to the 10th Business Day following the Effective Date (or such later
date as agreed by the Administrative Agent), the Borrower shall have delivered
to the Administrative Agent all documents, instruments and agreements (including
Deposit Account Control Agreements or amendments to existing Deposit Account
Control Agreements) as the Administrative Agent shall require to ensure that it
has a first priority perfected Lien (subject to Liens permitted by Section 8.2(n) and clause (a) of the definition
of Customary Permitted Liens) on and in the Loan Parties’ Deposit Accounts in
each case to the extent such Deposit Accounts constitute
Collateral.
(b) From
and after the Effective Date through April 30, 2010, the Borrower shall (i)
cause its senior management team, and use its commercially reasonable efforts to
cause Lazard and other appropriate legal and/or financial advisors, to discuss
(at the option of the Borrower, in person or telephonically), on a bi-weekly
basis during regular business hours and for reasonable durational periods, with
the Administrative Agent, its legal advisor and such other professional advisors
retained from time to time by the Administrative Agent, and the Lenders, among
other things, the Borrower’s ongoing financial performance and operations,
liquidity and progress with respect to any restructuring proposal and (ii)
promptly deliver to the Administrative Agent copies of all projections and/or
other financial information delivered to the holders of the New Notes, the
Additional Notes or any other Subordinated Indebtedness.
(c) The
Borrower shall give the Administrative Agent prompt written notice of the
determination by its Board of Directors (or by any Loan Party) to make any
payment in cash of interest in respect of any of the New Notes, the Additional
Notes or any other Subordinated Indebtedness from the Effective Date through
April 30, 2010, but in any event such notice must be given prior to (i) any such
payment and (ii) any request by the Borrower for a Loan the proceeds of which
may or are intended to be used to make any such payment.
(d) On
or prior to the 10th Business Day following the Effective Date, the Borrower
shall engage a financial advisor reasonably acceptable to the Administrative
Agent; provided, that
it is agreed that Alix Partners, Xxxxxxx & Marsal and Xxxxx, Zolfo Xxxxxx
are reasonably acceptable.
(e) The
Borrower acknowledges and agrees that a failure to comply with any provision of
this Section 4 shall be an immediate Event of Default under the Credit
Agreement.
13
SECTION
5. 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 and waived
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.
(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, 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 or waived hereby in
connection herewith.
SECTION
6. Governing Law. This
Amendment is governed by, and shall be construed in accordance with, the law of
the State of New York.
SECTION
7. Representations And
Warranties. The Borrower hereby represents and warrants
that:
(a) Each
of the representations and warranties made by it in the Credit Agreement, as
amended and waived 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.
(b) This
Amendment has been duly executed and delivered by each Loan Party and
constitutes a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, 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.
14
(c) Execution
and delivery by the Borrower of this Amendment, and consummation of the
transactions contemplated hereby, (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate the Constituent Documents of any Loan Party, (iii) will not
violate any Requirement of Law, (iv) conflict with or result in the breach of,
or constitute a default under, or result in or permit the termination or
acceleration of, any Related Document or any other material Contractual
Obligation of the Borrower or any of its Subsidiaries, and (v) will not result
in the creation or imposition of any Lien on any property of any Loan Party,
except Liens created by the Loan Documents or otherwise permitted by Section 8.2
of the Credit Agreement.
(d) The
liquidity forecasts of the Borrower and its Subsidiaries on a monthly basis
through June 2010 and on a quarterly basis through December 2010, as furnished
to the Administrative Agent, have been prepared in good faith by the Borrower
and based on assumptions believed by the Borrower to be reasonable at the time
furnished to the Administrative Agent (it being recognized that such projections
are not to be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the projected results,
and such differences may be material).
(e) The
Schedules to the Pledge and Security Agreement attached hereto as Exhibit I are true and
correct in all material respects as though the representations and warranties in
the Pledge and Security Agreement to which such Schedules relate were made on
and as of the Effective Date.1
SECTION
8. 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.
SECTION
9. Updated Schedule I
(Commitments). The parties hereto agree that (i) Schedule I (Commitments)
attached hereto reflects the Revolving Credit Commitments as of the Fourth
Amendment Effective Date and (ii) the aggregate amount of the Revolving Credit
Commitments on the effective date is $90,000,000.
SECTION
10. Release. In
further consideration of the Lenders’ execution of this Amendment, the Borrower
unconditionally and irrevocably acquits and fully forever releases and
discharges each Lender, each Issuer, the Administrative Agent, the Syndication
Agent, the Documentation Agent and all affiliates, partners, subsidiaries,
officers, employees, agents, attorneys, principals, directors and shareholders
of such Persons, and their respective heirs, legal representatives, successors
and assigns (collectively, the “Releasees”) from any
and all claims, demands, causes of action, obligations, remedies, suits, damages
and liabilities of any nature whatsoever, whether now known, suspected or
claimed, whether arising under common law, in equity or under statute, which the
Borrower ever had or now has against any of the Releasees (a) which may have
arisen at any time prior to the date hereof and (b) which were in any manner
related to this Amendment, the Credit Agreement, any other applicable Loan
Document or related documents, instruments or agreements or the enforcement or
attempted or threatened enforcement by any of the Releasees of any of their
respective rights, remedies or recourse related thereto (collectively, the
“Released
Claims”). The Borrower covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or prosecuted
against any of the Releasees any action or other proceeding based upon any of
the Released Claims.
[Signature
Pages
Follow]
15
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.
|
U.S.
CONCRETE, INC.
|
|||
|
as
Borrower
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Executive
Vice President and Chief
|
||
|
Financial
Officer
|
|||
[SIGNATURE
PAGE – AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT]
|
Citicorp
North America, Inc.,
|
|||
|
as
Administrative Agent, Swing Loan Lender and
Lender
|
|||
|
By:
|
/s/ Xxxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
Title:
|
Vice
President and Director
|
||
[SIGNATURE
PAGE – AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
|
JPMorgan
Chase
Bank,
as Documentation
Agent
|
|||
|
and
Lender
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxxxx
|
||
|
Title:
|
Vice
President
|
||
[SIGNATURE
PAGE – AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
|
Capital
One,
N.A., as
Lender
|
|||
|
By:
|
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx, P.E.
|
||
|
Title:
|
Senior
Vice President
|
||
[SIGNATURE
PAGE – AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
|
Comerica
Bank,
as
Lender
|
|||
|
By:
|
Xxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxx
|
||
|
Title:
|
Vice
President
|
||
[SIGNATURE
PAGE – AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT]
CONSENT AND REAFFIRMATION OF
GUARANTORS
|
Dated
as of February 19,
2010
|
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. 4 and Waiver 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, 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 or
waived by the Amendment.
|
Xxxxx
Gravel Company
|
|||
|
Superior
Holdings, Inc.
|
|||
|
Titan
Concrete Industries, Inc.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Vice
President and Secretary
|
||
|
Breckenridge Ready
Mix, Inc.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
Vice
President
|
||
|
Riverside
Materials, LLC
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
President
and Secretary
|
||
|
Eastern
Concrete Materials, Inc.
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||
|
Title:
|
President
and
Secretary
|
||
[SIGNATURE
PAGE – CONSENT AND REAFFIRMATION OF GUARANTORS]
|
Alberta
Investments, Inc.
|
|
|
Alliance
Haulers, Inc.
|
|
|
American
Concrete Products, Inc.
|
|
|
Atlas
Redi-Mix, LLC
|
|
|
Atlas-Tuck
Concrete, Inc.
|
|
|
Xxxxx
Concrete Enterprises, LLC
|
|
|
Xxxxx
Industries, Inc.
|
|
|
Xxxxx
Management, Inc.
|
|
|
Builders’
Redi-Mix, LLC
|
|
|
BWB,
Inc. of Michigan
|
|
|
Central
Concrete Supply Co., Inc.
|
|
|
Central
Precast Concrete, Inc.
|
|
|
Hamburg
Quarry Limited Liability Company
|
|
|
Xxxxxx
Concrete, LLC
|
|
|
MG,
LLC
|
|
|
Redi-Mix
Concrete, L.P.
|
|
|
Redi-Mix
GP, LLC
|
|
|
Redi-Mix,
LLC
|
|
|
San
Diego Precast Concrete, Inc.
|
|
|
Sierra
Precast, Inc.
|
|
|
Xxxxx
Pre-Cast, Inc.
|
|
|
Superior
Concrete Materials, Inc.
|
|
|
U.S.
Concrete On-Site, Inc.
|
|
|
USC
Management Co., LLC
|
|
|
USC
Payroll, Inc.
|
|
|
USC
Technologies, Inc.
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxx
X. Xxxxxxxx
|
||
|
Title:
|
Vice
President and Secretary
|
||
|
Local
Concrete Supply & Equipment, LLC
|
|
|
Master
Mix Concrete, LLC
|
|
|
Master
Mix, LLC
|
|
|
NYC
Concrete Materials, LLC
|
|
|
Pebble
Lane Associates, LLC
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
||
|
Title:
|
President
and Secretary
|
||
[SIGNATURE
PAGE – CONSENT AND REAFFIRMATION OF GUARANTORS]
|
Concrete
XXXIII Acquisition, Inc.
|
|
|
Concrete
XXXIV Acquisition, Inc.
|
|
|
Concrete
XXXV Acquisition, Inc.
|
|
|
Concrete
XXXVI Acquisition, Inc.
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
||
|
Title:
|
President
|
||
|
Concrete
Acquisition III, LLC
|
|
|
Concrete
Acquisition IV, LLC
|
|
|
Concrete
Acquisition V, LLC
|
|
|
Concrete
Acquisition VI, LLC
|
|
By:
|
/s/ Xxxx X. Xxxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
||
|
Title:
|
President
|
||
[SIGNATURE
PAGE – CONSENT AND REAFFIRMATION OF GUARANTORS]
|
USC
Atlantic, Inc.
|
|||
|
By:
|
/s/ Xxxx Xxxx
|
||
|
Name:
|
Xxxx
Xxxx
|
||
|
Title:
|
Vice
President and Secretary
|
||
|
USC
Michigan, Inc.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
||
|
Title:
|
Vice
President and Secretary
|
||
[SIGNATURE
PAGE – CONSENT AND REAFFIRMATION OF GUARANTORS]
SCHEDULE
I (COMMITMENTS)
|
Lender
|
Revolving Credit Commitment
($)
|
|||
|
Citicorp
North America, Inc.
|
$ | 16,800,000 | ||
|
Bank
of America, N.A.
|
$ | 16,800,000 | ||
|
JPMorgan
Chase Bank N.A.
|
$ | 16,800,000 | ||
|
Branch
Banking and Trust Co.
|
$ | 16,140,000 | ||
|
Capital
One, N.A.
|
$ | 10,740,000 | ||
|
Comerica
Bank
|
$ | 6,720,000 | ||
|
Xxxxx
Fargo Bank, N.A.
|
$ | 6,000,000 | ||
|
Total
|
$ | 90,000,000 | ||
