THIRD AMENDMENT TO
CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), effective
as of August 31, 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"), Bank of America, N.A., f/k/a NationsBank, 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, as amended by that certain First
Amendment to Credit Agreement dated June 30, 1999 among such parties and that
certain Second Amendment to Credit Agreement dated July 31, 1999 (said Credit
Agreement, as amended and as may be further 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 additional 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 6.01. Section 6.01 of the Credit
Agreement is amended to add a new subsection (g) to read as follows (the
remainder of Section 6.01 is unchanged):
"(g) Indebtedness not to exceed $50,000.00 incurred as an
advance by Walkers' Concrete, Inc. under its facility with Union Bank
of
California, N.A.; provided such advance (i) shall be a one-time
advance and (ii) shall be fully repaid on or before the earlier of
December 31, 1999 or the release by such bank of the liens securing
such facility."
3. Amendment to Section 6.02. 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, N.A. encumbering
assets of Xxxxxx'x Concrete, Inc.; provided (i) no further
Indebtedness is owing by the Borrower or any Subsidiary to said bank
in excess of that provided in Section 6.01(g) and (ii) said Liens are
fully extinguished and released prior to December 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, 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.
[Remainder of Page Intentionally Blank]
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: /s/ Xxxxxxx X. Xxxxxx
--------------------------
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: /s Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
Vice President
ADMINISTRATIVE AGENT/LENDER:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
Vice President
SYNDICATION AGENT/LENDER:
BANK OF AMERICA, N.A.,
f/k/a Nationsbank, N.A.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
LENDER:
THE BANK OF NOVA SCOTIA
By: F.C.H. Xxxxx
----------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
CO-AGENT/LENDER:
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
LENDER:
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Vice President
LENDER:
COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CO-AGENT/LENDER:
CREDIT LYONNAIS
NEW YORK BRANCH
By: Xxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President