Second Amendment to Amended and Restated Credit Agreement among U.S. Concrete, Inc., Guarantors, Lenders, and JPMorgan Chase Bank

Summary

This amendment updates the terms of a credit agreement between U.S. Concrete, Inc., its guarantors, several lenders, and JPMorgan Chase Bank as administrative agent. The changes include revised financial ratio requirements and acquisition permissions for the borrower and its subsidiaries. The amendment confirms that all other terms of the original agreement remain in effect. It becomes effective once signed by all required parties and does not release any existing obligations or rights under the original agreement.

EX-4.4 3 dex44.txt SECOND AMENDED AND RESTATED CREDIT AGREEMENT Exhibit 4.4 SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment"), effective as of April 4, 2003, 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 "Original 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, the Guarantors, the Lenders, the Administrative Agent, the syndication agents and the documentation agent have entered into that certain First Amendment to Amended and Restated Credit Agreement dated as of May 21, 2002 (the "First Amendment") pursuant to which the parties agreed to amend certain terms of the Original Credit Agreement (the Original Credit Agreement, as amended by the First Amendment, is hereinafter referred to as, the "Credit Agreement"); and WHEREAS, the Borrower has requested the Lenders and the Administrative Agent to further 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 6.8(a). Section 6.8(a) of the Credit Agreement is hereby amended by deleting subclause (ii) in its entirety and replacing it with the following: " (ii) cash interest expense, actually paid during such period (including the interest expense portion of any payments on Capitalized Lease Obligations but net of cash interest income actually received during such period) plus Maintenance Capital Expenditures for said period, to be less than (y) for the period ended March 31, 2003 and the period ending June 30, 2003, 1.5 to 1.0; and (z) for the period ending September 30, 2003 and thereafter during the term hereof, 1.75 to 1.0." 3. Amendment to Section 6.8(d). Section 6.8(d) of the Credit Agreement is hereby amended by deleting subclause (ii) in its entirety and replacing it with the following: " (ii) EBITDA calculated on a rolling four (4) quarters basis, to be greater than (A) for the period ended March 31, 2003 and the period ending June 30, 2003, 3.50 to 1.0; and (B) thereafter during the term hereof, 3.25 to 1.0." 4. Amendment to Section 6.11. Section 6.11 of the Credit Agreement is hereby amended by deleting the first paragraph thereof in its entirety and replacing it with the following: "The Borrower will not, and will not permit any Subsidiary to, acquire (i) any securities of, stock or outstanding ownership interests in, any Person, or (ii) all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise without the prior written consent of the Required Lenders; provided, however, that commencing on July 1, 2003 and continuing thereafter during the term hereof, the Borrower and/or any Subsidiary shall be entitled to consummate transactions permitted by Section 6.3 and Section 6.4, and make any Acquisition of (x) any wholly owned Guarantor, or (y) any entity created by the merger, conversion, recapitalization or other restructuring of any entity described in (x) above, provided that after such merger, conversion, recapitalization or other restructuring, all or substantially all of such entity's assets consist of the securities of, outstanding ownership interests in, or assets of the entities described in (x) above; and further provided, that commencing on July 1, 2003 and continuing thereafter during the term hereof, the Borrower and/or any Subsidiary may make any Acquisition without the consent of the Required Lenders, so long as Borrower is in compliance with the following:" 5. 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 therein) and each of the Loan Documents to which it is a -2- 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, 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. 6. 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 or Event of 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. 7. Conditions to Effectiveness. This Amendment shall be effective upon 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. 8. 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. 9. 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. 10. 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. -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/ Michael W. Harlan ------------------------------------------ Michael W. Harlan Senior Vice President Guarantors: American Concrete Products, Inc., a California corporation Atlas-Tuck Concrete, Inc., an Oklahoma corporation Beall Industries, Inc., a Texas corporation Beall Management, Inc., a Texas corporation Central Concrete Supply Co., Inc., a California corporation Central Precast Concrete, Inc., a California corporation Ready Mix Concrete Company of Knoxville, a Delaware corporation San Diego Precast Concrete, Inc., a Delaware corporation Sierra Precast, Inc., a California corporation Smith Pre-Cast, Inc., a Delaware corporation USC Atlantic, Inc., a Delaware corporation USC GP, Inc., a Delaware corporation USC Michigan, Inc., a Delaware corporation By: /s/ Michael W. Harlan ------------------------------------------ Michael W. Harlan Vice President USC Management Co., LP, a Texas limited partnership By: USC GP, Inc., its General Partner By: /s/ Michael W. Harlan ------------------------------------- Michael W. Harlan Vice President Beall Concrete Enterprises, Ltd., a Texas limited partnership By: Beall Management, Inc., its General Partner By: /s/ Michael W. Harlan ------------------------------------- Michael W. Harlan Vice President AFTM Corporation, a Michigan corporation By: /s/ Terry Green ----------------------------------------- Terry Green Vice President Titan Concrete Industries, Inc. (f/k/a Carrier Excavation and Foundation Company, a Delaware corporation) Eastern Concrete Materials, Inc., a New Jersey corporation Superior Materials, Inc. (f/k/a Superior Redi-Mix, Inc., a Michigan corporation) By: /s/ Cesar Monroy ----------------------------------------- Cesar Monroy Vice President B.W.B., Inc. of Michigan, a Delaware corporation Central Concrete Corp., a Delaware corporation Superior Concrete Materials, Inc. (f/k/a Opportunity Concrete Corporation, a District of Columbia corporation) By: /s/ Donald Wayne --------------------------------------------- Donald Wayne Vice President Wyoming Concrete Industries, Inc., a Delaware corporation By: /s/ Eugene P. Martineau --------------------------------------------- Eugene P. Martineau Vice President Administrative Agent/Lender: JPMORGAN CHASE BANK, formerly known as The Chase Manhattan Bank By: /s/ Robert L. Mendoza ------------------------------- Name: Robert L. Mendoza Title: Vice President Syndication Agent/Lender: CREDIT LYONNAIS NEW YORK BRANCH By: /s/ Attila Koc ------------------------------ Name: Attila Koc Title: Senior Vice President Syndication Agent/Lender: FIRST UNION NATIONAL BANK By: /s/ David L. Driggers ------------------------------ Name: David L. Driggers Title: Managing Director Documentation Agent/Lender: BRANCH BANKING & TRUST COMPANY By: /s/ Cory P. Boyte ------------------------------ Name: Cory P. Boyte Title: Senior Vice President Lender: BANK OF AMERICA, N.A. By: /s/ Elizabeth B. Jennings ------------------------------- Name: Elizabeth B. Jennings Title: Assistant Vice President Lender: BANK ONE, N.A. By: /s/ Thomas M. Harkless --------------------------------- Thomas M. Harkless Director Lender: THE BANK OF NOVA SCOTIA By: /s/ Mark Sparrow ------------------------------- Name: Mark Sparrow Title: Director Co-Managing Agent/Lender: US BANK By: /s/ Joseph L. Sooter, Jr. ------------------------------- Name: Joseph L. Sooter, Jr. Title: Vice President Lender: COMERICA BANK By: /s/ William S. Rogers ------------------------------ Name: William S. Rogers Title: Vice President Lender: GUARANTY BANK By: /s/ Scott Brewer -------------------------------- Scott Brewer, Vice President