Exhibit 4.2
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), effective as of May 21, 2002, 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
"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 has requested the Lenders and the Administrative
Agent to 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 1.1.
(a) The definition of "EBITDA" in Section 1.1 of the Credit Agreement
is hereby amended to add the following at the end of such definition:
Page 1
"Notwithstanding anything herein to the contrary, for the purposes of
calculating EBITDA, impairment to goodwill calculated in accordance
with SFAS No. 142, Goodwill and Other Intangible Assets, shall be
disregarded."
(b) The definition of "Significant Subsidiary" in Section 1.1 of the
Credit Agreement is hereby amended to add the following clause after the
phrase "book value" in both places that it appears:
", excluding any adjustment, charge to net income or other charge or
write-off calculated in accordance with SFAS No. 142, Goodwill and
Other Intangible Assets,"
3. Amendment to Section 6.9. Section 6.9 of the Credit Agreement is hereby
amended by adding the following at the end thereof:
"For the purposes of calculating net worth, after September 30, 2001,
impairments to goodwill calculated in accordance with SFAS No. 142,
Goodwill and Other Intangible Assets, shall be disregarded."
4. Amendment to Section 6.15. Section 6.15 of the Credit Agreement is
hereby amended by adding the following to the end thereof:
"Notwithstanding the foregoing or any other provision of the Loan
Documents, the Borrower may enter into such an agreement with respect
to the real property located at 000 Xxxxx Xxxxxx Xxxxxx in San
Francisco, California for a lease term not to exceed five (5) years
(with an option to extend up to an additional five (5) years) and a
rental rate not to exceed $250,000 per year (plus periodic adjustments
customary for the related market), and on such other terms and
conditions as approved by the Administrative Agent. Borrower shall
submit all documentation evidencing such agreement for approval by the
Administrative Agent prior to execution thereof."
5. Amendment to Schedule 2.1. Schedule 2.1 of the Credit Agreement is
hereby deleted in its entirety and replaced with Schedule 2.1 attached hereto.
6. 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 in Article X
thereof) 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 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,
Page 2
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.
7. 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 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.
8. Conditions to Effectiveness. This Amendment shall be effective upon (i)
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.
9. 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.
10. 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.
11. 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]
Page 3
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
Page 4
Guarantors:
AFTM Corporation, a Michigan corporation
American Concrete Products, Inc., a California
corporation
Atlas-Tuck Concrete, Inc., an Oklahoma
corporation
Xxxxx Concrete Enterprises, Ltd., a Texas
limited partnership
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
Concrete XX Acquisition, Inc., a Delaware
corporation
Xxxxxxxxx Fuel & Supply, Inc., a Michigan
corporation
Xxxxxxxxx Leasing, Inc., a Michigan
corporation
DYNA, Inc., a Delaware corporation
X.X. Xxxxxx, Inc., a Michigan corporation
Eastern Concrete Materials, Inc., a New Jersey
corporation
Fendt Transit Mix, Inc., a Michigan
corporation
Hunter Equipment Company, a Michigan
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
Superior Concrete Materials, Inc. (f/k/a
Opportunity Concrete Corporation, a
District of Columbia corporation)
USC Atlantic, Inc., a Delaware corporation
USC GP, Inc., a Delaware corporation
USC Management Co., LP, a Texas limited
partnership
USC Midsouth, Inc., a Delaware corporation
USC Michigan, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
Page 5
Carrier Excavation and Foundation Company, a
Delaware corporation
Premix Concrete Corp., a Delaware corporation
Superior Redi-Mix, Inc., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
B.W.B., Inc. of Michigan, a Delaware
corporation
Central Concrete Corp., a Delaware corporation
Olive Branch Ready Mix, Inc., a Delaware
corporation
Superior Materials Company, Inc., a Delaware
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
Page 6
Administrative Agent/Lender:
JPMORGAN CHASE BANK, formerly known as
The Chase Manhattan Bank
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
Page 7
Syndication Agent/Lender:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
---------------------------------------
Name: Xxxxxx Xxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
Page 8
Syndication Agent/Lender:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Managing Director
---------------------------------------
Page 9
Documentation Agent/Lender:
BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
---------------------------------------
Title: Senior Vice President
---------------------------------------
Page 10
Lender:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
---------------------------------------
Title: Assistant Vice President
---------------------------------------
Page 11
Lender:
BANK ONE, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, Director
Page 12
Lender:
THE BANK OF NOVA SCOTIA
By: /s/ X. Xxxx
---------------------------------------
Name: X. Xxxx
---------------------------------------
Title: Senior Manager
---------------------------------------
Page 13
Co-Managing Agent/Lender:
FIRSTAR BANK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------------------
Title: Vice President
---------------------------------------
Page 14
Lender:
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
Page 15