EXHIBIT 4.2
First Amendment to
Amended and Restated Credit Agreement
This First Amendment to Amended and Restated Credit Agreement (the
"First Amendment" or this "Amendment"), effective as of July 7, 2000 is entered
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into by and among U.S. Concrete, Inc., a Delaware corporation, (the "Company"),
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the Guarantors signatory hereto under the caption "Guarantors" (together with
each other Person who becomes a Guarantor, collectively, the "Guarantors"), the
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Lenders signatory hereto under the caption "Lenders" (together with each other
Person who becomes a Lender, collectively, the "Lenders") and Chase Bank of
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Texas, National Association, a national banking association, as administrative
agent for the other Lenders (in such capacity, together with any other Person
who becomes the administrative agent, the "Administrative Agent"), Bankers Trust
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Company, as syndication agent, First Union National Bank, as documentation
agent, and Bank One, Texas, NA, Branch Banking & Trust Company, Credit Lyonnais
New York Branch and The Bank of Nova Scotia, collectively as co-managing agents
for the Lenders.
Preliminary Statement
Whereas, the Company, the Guarantors, the Lenders, the Administrative
Agent, the syndication agent, the documentation agent and the co-managing agents
have entered into that certain Amended and Restated Credit Agreement dated as of
February 9, 2000 (said Credit Agreement, as amended and as may be further
amended, extended, supplemented or restated from time to time, the "Credit
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Agreement") under the terms of which the Lenders agreed to make Revolving Credit
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Loans to the Company in an amount not exceeding $200,000,000.00; and
Whereas, the Company 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 Company 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. (a) All capitalized terms used in this Amendment
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and not otherwise defined herein shall have the meanings ascribed to such terms
in the Credit Agreement.
(b) Amendment to Section 1.01. Section 1.01 of the Credit
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Agreement is hereby amended by restating subsection (e) of the definition
of Permitted Investments in its entirety to read as follows (the remainder
of the definition of Permitted Investments is unchanged):
"(e) other advances and loans to officers and employees of the
Borrower or any Subsidiary, so long as the aggregate principal
amount of such advances and loans does not exceed $500,000 at any
one time outstanding;".
(c) Amendment to Section 1.01. Section 1.01 of the Credit
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Agreement is further amended by adding a new definition, "Bankruptcy Code"
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to read in its entirety as follows:
"Bankruptcy Code" means Title 11 of the United States Code, as
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amended and in effect from time to time.".
2. Ratification. Each of the Company, as to itself and each
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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.
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 therein or herein.
2. Representations and Warranties. Each of the Company, as to itself
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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 Company and such Guarantor,
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 other Loan Document and (e) the execution, delivery and performance of this
Amendment has been duly authorized by the Company and each Guarantor.
3. Conditions to Effectiveness. This Amendment shall be effective
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upon the execution and delivery hereof by all parties to the Administrative
Agent and receipt by the Administrative Agent of this Amendment.
4. Counterparts. This Amendment may be signed in any number of
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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.
5. Governing Law. This Agreement, all Notes, the other Loan
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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.
6. Final Agreement of the Parties. THIS AMENDMENT AND THE CREDIT
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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
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Xxxxxxx X. Xxxxxx
Senior Vice President
Guarantors:
AFTM Corporation, a Michigan corporation
Atlas Concrete, Inc., an Oklahoma corporation
Atlas-Tuck Concrete, Inc., an Oklahoma corporation
B.W.B., Inc. of Michigan, a Delaware corporation
Xxxx Concrete, Inc., a New Jersey corporation
Xxxxx Concrete Enterprises, Ltd., a Texas limited
partnership
Xxxxx Industries, Inc., a Texas corporation
Xxxxx Management, Inc., a Texas corporation
Xxxxx Trucking, Inc., an Oklahoma corporation
Carrier Excavation and Foundation Company, a Delaware
corporation
Central Concrete Supply Co., Inc., a California
corporation
Concrete XX Acquisition, Inc., a Delaware corporation
Corden, Inc., a Michigan corporation
Xxxxxxxxx Fuel & Supply, Inc., a Michigan corporation
Xxxxxxxxx Leasing, Inc., a Michigan corporation
Dencor, Inc., a Michigan corporation
DYNA, Inc., a Delaware corporation
X.X. Xxxxxx, Inc., a Michigan corporation
Fendt Transit Mix, Inc., a Michigan corporation
Hunter Equipment Company, a Michigan corporation
Olive Branch Ready Mix, Inc., a Delaware corporation
Opportunity Concrete Corporation, a District of
Columbia corporation
Premix Concrete Corp., a Delaware corporation
X.X. Xxxxx/Associates d/b/a/ Santa Xxxx Cast Products
Co., a California corporation
Ready Mix Concrete Company of Knoxville, a Delaware
corporation
San Diego Precast Concrete, Inc., a Delaware
corporation
Xxxxxx Transit Mix, Inc., an Oklahoma corporation
Superior Materials Company, Inc., a Delaware
corporation
Superior Redi-Mix, Inc., a Michigan corporation
USC GP, Inc., a Delaware corporation
USC Management Co., LP, a Texas limited partnership
Western Concrete Products, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
Administrative Agent/Lender:
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CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Dolphin
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Xxxxx X. Dolphin
Senior Vice President
Syndication Agent/Lender:
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BANKERS TRUST COMPANY
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Vice President
Documentation Agent/Lender:
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
Lender:
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BANK OF AMERICA, N.A.,
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Co-Managing Agent/Lender:
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BANK ONE, TEXAS, N.A.
By: /s/ Xxxx X. Xxxxxxxxx, XX
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Name: Xxxx X. Xxxxxxxxx, XX
Title: Vice President
Co-Managing Agent/Lender:
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CREDIT LYONNAIS
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
Co-Managing Agent/Lender:
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THE BANK OF NOVA SCOTIA
By: /s/ F. C. H. Xxxxx
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Name: F. C. H. Xxxxx
Title: Senior Manager Loan Operations
Co-Managing Agent/Lender:
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BRANCH BANKING & TRUST COMPANY
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
Lender:
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COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: First Vice President