AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 4.2
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 to the Credit Agreement, dated as of June 29, 2006,
among U.S. Concrete, Inc., a Delaware corporation (the “Borrower”), the Lenders (as
defined below), the Issuers (as defined below) 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 Credit Agreement dated as of March
12, 2004 (as the same has been amended, supplemented or otherwise modified from time to time until
the date hereof, the “Credit Agreement”).
The Borrower has requested that the Lenders consent to the making of a loan by the Borrower to
an unrelated third party in an aggregate principal amount not to exceed $33 million.
The Lenders have agreed to consent to the making of such loan upon the terms and conditions
set forth herein.
The parties hereto agree to amend the Credit Agreement on the terms and subject to the
conditions set forth in this Amendment as follows:
SECTION 1. Amendments. Subject to the satisfaction of the conditions precedent set
forth in Section 2 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 1.1 (Defined Terms) of the Credit Agreement is hereby amended by inserting the
following definitions among the existing definitions set forth in such section in alphabetical
order:
“Atlas” means Atlas Investments, Inc., a Nevada corporation.
“Atlas Loan” means a loan by the Borrower to Atlas, in an aggregate principal amount
not to exceed $33,000,000, which loan shall be evidenced by the Atlas Loan Documents and
secured by a first priority security interest in all of the Atlas Stock and the proceeds
thereof.
“Atlas Loan Document” means, collectively, each loan agreement, promissory note,
security agreement, pledge agreement and/or other instrument, document, agreement or
certificate executed and delivered by Atlas and any of its Affiliates in connection with the
Atlas Loan, each of which shall be in form and substance satisfactory to the Administrative
Agent.
“Atlas Stock” means the Stock of each of Atlas, Alberta Investments, Inc., a Texas
corporation, Redi-Mix Management, Inc., a Texas corporation, and Xxxxxx Enterprises
Management, Inc., a Texas corporation.
(b) Section 8.3 (Investments) of the Credit Agreement is hereby amended by (i) deleting the
phrase “and” after the semi-colon in clause (h) thereof, (ii) deleting the period appearing at the
end of clause (i) thereof and substituting the phrase “; and” therefor and (iii) adding the
following as new clause (j) thereof:
“(j) the Borrower may make the Atlas Loan (and may subsequently acquire the Atlas Stock
as a result of any foreclosure of the Atlas Stock under the Atlas Loan Documents, it being
acknowledged and agreed that the acquisition of any Atlas Stock and the subsequent ownership
by the Borrower or any of its Subsidiaries thereof shall not result in a Default or Event of
Default so long as the issuers of the Atlas Stock become Subsidiary Guarantors hereunder in
accordance with the terms of this Agreement).”
(c) The following new Section 8.18 shall be added to Article VIII (Negative Covenants):
“Section 8.18 Atlas Loan Documents
The Borrower shall not, nor shall it permit any of its Subsidiaries to, change, amend, waive
or otherwise modify the terms of the Atlas Loan or the Atlas Loan Documents without the prior
written consent of the Administrative Agent. The Borrower may not assign or otherwise delegate any
of its rights under the Atlas Loan Documents to any Person (other than the Administrative Agent and
the Lenders) without the prior written consent of the Administrative Agent. Furthermore, if any
default or event of default shall occur and continue under the Atlas Loan Documents, the Borrower
may exercise any of its rights or remedies under the Atlas Loan Documents and shall (a) immediately
notify the Administrative Agent thereof (including a description in reasonable detail of the nature
of such default or event of default) and (b) take all such actions as the Administrative Agent
shall reasonably request in order to enforce and preserve the Borrower’s rights and remedies under
the Atlas Loan Documents.”
SECTION 2. 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) the Administrative Agent shall have received counterparts of this Amendment executed by
the Borrower and the Requisite Lenders; and
(b) the Administrative Agent shall have received from each Guarantor its duly executed and
delivered consent to this Amendment in the form attached hereto.
SECTION 3. Conditions Subsequent. Notwithstanding anything to the contrary herein, in
the Credit Agreement or in any other Loan Document, it shall be an immediate Event of Default if
the Borrower fails to deliver to the Administrative Agent the following documents within one
Business Day after the making of the Atlas Loan:
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(c) A certificate in form and substance acceptable to the Administrative Agent and executed by
a duly authorized officer of the Borrower attaching true, correct and complete copies of all of the
Atlas Loan Documents;
(d) The original promissory note in favor of the Borrower executed by Atlas, together with an
allonge therefor in form and substance satisfactory to the Administrative Agent and duly executed
by the Borrower in blank; and
(e) The original Stock certificates representing all of the Atlas Stock pledged to the
Borrower under the Atlas Loan Documents, together with stock powers (or other instruments of
transfer) therefor duly executed in blank by each issuer of the Atlas Stock and in form and
substance satisfactory to the Administrative Agent.
SECTION 4. 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 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, the
Arrangers 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 hereby in
connection herewith.
SECTION 5. Governing Law. This Amendment is governed by, and shall be construed in
accordance with, the law of the State of New York.
SECTION 6. Representations And Warranties. The Borrower hereby represents and
warrants that each of the representations and warranties made by it in the Credit Agreement, as
amended 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.
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SECTION 7. 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.
[Signature Pages Follow]
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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.
U.S. CONCRETE, INC. as Borrower |
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By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Senior Vice President and Chief Financial Officer |
Citicorp North America, Inc., as Administrative Agent, Swing Loan Lender and Lender |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Vice President and Director | |||
Citibank, N.A., as Issuer |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Vice President and Director | |||
Bank of America, N.A., as Syndication Agent and Lender |
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By: | /s/ illegible | |||
Name: | ||||
Title: |
Branch Banking and Trust Co., as Lender |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Assistant Vice President |
Capital One, N.A., as Lender |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Title: | Senior Vice President |
Comerica Bank, as Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Vice President |
CONSENT OF GUARANTORS
Dated as
of June 29, 2006
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 such Amendment and hereby confirms and agrees that notwithstanding the effectiveness of
such 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 such 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 by such Amendment.
American Concrete Products, Inc. Atlas-Tuck Concrete, Inc. Xxxxx Industries, Inc. Xxxxx Management, Inc. Central Concrete Supply Co., Inc. Central Precast Concrete, Inc. Ready Mix Concrete Company of Knoxville San Diego Precast Concrete, Inc. Sierra Precast, Inc. Xxxxx Pre-Cast, Inc. U.S. Concrete On-Site, Inc. |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President |
Eastern Concrete Materials, Inc. Xxxxx Gravel Company Superior Materials, Inc. Titan Concrete Industries, Inc. |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President & Secretary |
USC Payroll, Inc. |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | President & Treasurer | |||
Xxxxx Concrete Enterprises, Ltd. |
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By: | Xxxxx
Management, Inc., its General Partner |
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By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Vice President |
Builders’
Redi-Mix, LLC BWB, Inc. of Michigan Central Concrete Corp. Superior Concrete Materials, Inc. |
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By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Vice President & Secretary |
Concrete XXXII Acquisition, Inc. Concrete XXXIII Acquisition, Inc. Concrete XXXIV Acquisition, Inc. Concrete XXXV Acquisition, Inc. Concrete XXXVI Acquisition, Inc. |
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By: | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | President |
USC Atlantic, Inc. |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | President & Secretary | |||
USC Michigan, Inc. |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President & Secretary | |||
USC GP, Inc. |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
USC Management Co., L.P. |
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By: | USC
GP, Inc., its General Partner |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President | |||
Wyoming Concrete Industries, LLC |
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By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxx | |||
Title: | Vice President & Secretary | |||