AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT

 

This Amendment No. 2 to the Amended and Restated Credit Agreement, dated as of November 6, 2007 (this “Amendment”), among U.S. Concrete, Inc., a Delaware corporation (the “Borrower”), the Lenders, the Issuers 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 Amended and Restated Credit Agreement dated as of June 30, 2006 (as the same has been amended by Amendment No. 1 dated March 1, 2007 and has been otherwise amended, supplemented or modified from time to time until the date hereof, the “Credit Agreement”).

 

The Borrower has requested that Section 1.1 (Defined Terms) and Section 8.4 (Sale of Assets) of the Credit Agreement be amended to allow the sale of certain assets for a purchase price not exceeding $25,000,000.

 

The parties hereto agree to amend the Credit Agreement upon the terms and subject to the conditions set forth herein.

 

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 amending and restating the following definition in its entirety as follows:

 

  “Capital Expenditures” means, for any Person for any period, the aggregate of amounts that would be reflected as additions to property, plant or equipment on a Consolidated statement of cash flow of such Person and its Subsidiaries, excluding costs and interest capitalized during construction; provided that such term shall not include amounts expended (i) during such period as a part of the consideration for, or assets acquired in connection with, any Permitted Acquisition or obligations assumed in any Permitted Acquisition, (ii) during such period to replace or repair assets, equipment or other property lost, destroyed, damaged or condemned or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets in replacement of assets, equipment or other property lost, destroyed, damaged or condemned, in each case, solely (except for any applicable customary deductible retainage, co-payment or similar deduction or reduction in reimbursement) to the extent of the amount of reimbursement (whether pursuant to insurance or indemnity claims) that such Person has actually received in respect of such lost, destroyed, damaged or condemned assets and (iii) during such period on or after October 31, 2007, but on or prior to December 31, 2009, for the design, purchase, installation and implementation of software for financial and business reporting, retrieval and analysis (and related computer and peripheral equipment) in an aggregate amount not to exceed $12,000,000.

 

(b)  Section 8.4 (Sale of Assets) of the Credit Agreement is hereby amended by amending and restating clause (g) thereof in its entirety as follows:

 

(g) as long as no Default or Event of Default is continuing or would result therefrom, any other Asset Sale for Fair Market Value, payable in cash upon such sale; provided, however, that with respect to any such Asset Sale pursuant to this clause (g), (i) the aggregate consideration received during any Fiscal Year for all such Asset Sales shall not exceed $25,000,000 and (ii) an amount equal to all Net Cash Proceeds of such Asset Sale are applied to the payment of the Obligations as set forth in, and to the extent required by, Section 2.9 (Mandatory Prepayments);

 

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) Certain Documents. The Administrative Agent shall have received counterparts of each of the following, each dated the Effective Date (unless otherwise agreed by the Administrative Agent), in form and substance satisfactory to the Administrative Agent:

 

(i) this Amendment executed by the Borrower, the Administrative Agent and the Requisite Lenders;

 

(ii) a consent and reaffirmation in respect of this Amendment in the form attached hereto, executed by each Guarantor; and

 

(iii) such other documents as the Administrative Agent may reasonably request.

 

(b) Fees and Expenses Paid. There shall have been paid to the Administrative Agent (i) for the account of each Lender that executes and delivers this Amendment on or prior to 12:00 p.m. Eastern Time on November 9, 2007, an amount equal to 0.05% of the Revolving Credit Commitments of such Lender, which the Administrative Agent shall remit to each relevant Lender upon the Effective Date and (ii) for the account of the Administrative Agent, the reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel) of the Administrative Agent due and payable on or before the Effective Date.

 

SECTION 3.  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 4.  Governing Law. This Amendment is governed by, and shall be construed in accordance with, the law of the State of New York.

 

SECTION 5.  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.

 

SECTION 6.  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]

 

 

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
	By:	/s/ Robert D. Hardy
		Name: Robert D. Hardy
		Title: Executive Vice President and Chief Financial Officer

 

 

 

	Citicorp North America, Inc.,
	as Administrative Agent, Swing Loan Lender and Lender
	By:	/s/ Keith R. Gerding
		Name: Keith R. Gerding
		Title: Vice President and Director

 

	Bank of America, N.A., as Syndication Agent and Lender
	By:	/s/ Joy L. Bartholomew
		Name: Joy L. Bartholomew
		Title: Senior Vice President

 

 

 

	JPMorgan Chase Bank, as Documentation Agent and Lender
	By:	/s/ Courtney Jeans
		Name: Courtney Jeans
		Title: Vice President

 

 

 

	Branch Banking and Trust Co., as Lender
	By:	/s/ Troy R. Weaver
		Name: Troy R. Weaver
		Title: Senior Vice President

 

 

 

 

 

	Capital One, N.A., as Lender
	By:	/s/ Don Backer
		Name: Don Backer
		Title: Senior Vice President

 

 

 

	Comerica Bank, as Lender
	By:	/s/ De Von Lang
		Name: De Von Lang
		Title: Corporate Banking Officer

 

 

 

 

 

	Wells Fargo & Company, as Lender
	By:	/s/ John Kallina
		Name: John Kallina
		Title: Vice President

 

 

 

 

Dated as of November 6, 2007

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 that certain Amendment No. 2 to Amended and Restated Credit Agreement dated as of the date hereof and to which this consent and reaffirmation is attached (the “Amendment”) and hereby confirms and agrees that notwithstanding the effectiveness of the Amendment and the Increase thereunder and as defined therein, 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 the 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 the Amendment.

 

	Eastern Concrete Materials, Inc. Kurtz Gravel Company Superior Holdings, Inc. Titan Concrete Industries, Inc.
	By:	/s/ Robert D. Hardy
		Name: Robert D. Hardy
		Title: Vice President and Secretary

	Breckenridge Ready Mix, Inc.
	By:	/s/ Robert D. Hardy
		Name: Robert D. Hardy
		Title: Vice President

 

	Alberta Investments, Inc. Alliance Haulers, Inc. American Concrete Products, Inc. Atlas-Tuck Concrete, Inc. Beall Concrete Enterprises, LLC Beall Industries, Inc. Beall Management, Inc. Builders’ Redi-Mix, LLC BWB, Inc. of Michigan Central Concrete Corp. Central Concrete Supply Co., Inc. Central Precast Concrete, Inc. Ingram Concrete, LLC Ready Mix Concrete Company of Knoxville Redi-Mix Concrete, L.P. Redi-Mix GP, LLC Redi-Mix, LLC San Diego Precast Concrete, Inc. Sierra Precast, Inc. Smith Pre-Cast, Inc. Superior Concrete Materials, Inc. U.S. Concrete On-Site, Inc. USC Management Co., LLC USC Payroll, Inc.

	By:	/s/ Curt M. Lindeman
		Name: Curt M. Lindeman
		Title: Vice President and Secretary

	Concrete XXXI Acquisition, Inc. Concrete XXXII Acquisition, Inc. Concrete XXXIII Acquisition, Inc. Concrete XXXIV Acquisition, Inc. Concrete XXXV Acquisition, Inc. Concrete XXXVI Acquisition, Inc.
	By:	/s/ Curt Lindeman
		Name: Curt Lindeman
		Title: President

 

	USC Atlantic, Inc.
	By:	/s/ Michael W. Harlan
		Name: Michael W. Harlan
		Title: President and Secretary

 

	USC Michigan, Inc.
	By:	/s/ Michael W. Harlan
		Name: Michael W. Harlan
		Title: Vice President and Secretary

 

 

	Wyoming Concrete Industries, LLC
	By:	/s/ Sean Gore
		Name: Sean Gore
		Title: Vice President and Secretary