ii- #53262136_v7 7.4. Other Collateral. ....................................... .....................................................................65 7.5. No Assumption of Liability ..........................................................
Exhibit 10.1
#53262136_v7
Execution Version
$350,000,000 REVOLVING CREDIT FACILITY
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
among
U.S. CONCRETE, INC. and
CERTAIN SUBSIDIARIES OF U.S. CONCRETE, INC.,
as Borrowers,
CERTAIN SUBSIDIARIES OF U.S. CONCRETE, INC.,
as Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
and
BANK OF AMERICA, N.A.,
as Agent
Dated as of August 31, 2017
BANK OF AMERICA, N.A.,
as Sole Lead Arranger,
and
JPMORGAN CHASE BANK, N.A.,
SUNTRUST BANK, and
MUFG UNION BANK, N.A.,
as Syndication Agents
#53262136_v7
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION ............................................................2
1.1. Definitions .......................................................................................................................2
1.2. Accounting Terms .........................................................................................................39
1.3. Uniform Commercial Code ...........................................................................................40
1.4. Certain Matters of Construction ....................................................................................40
SECTION 2. CREDIT FACILITIES ..................................................................................................41
2.1. Revolver Commitment ..................................................................................................41
2.2. Letter of Credit Facility. ................................................................................................43
SECTION 3. INTEREST, FEES AND CHARGES ............................................................................46
3.1. Interest. ..........................................................................................................................46
3.2. Fees. ...............................................................................................................................47
3.3. Computation of Interest, Fees, Yield Protection ...........................................................47
3.4. Reimbursement Obligations ..........................................................................................48
3.5. Illegality .........................................................................................................................48
3.6. Inability to Determine Rates ..........................................................................................49
3.7. Increased Costs; Capital Adequacy. ..............................................................................49
3.8. Mitigation; Replacement of Lenders under Certain Circumstances ..............................50
3.9. Funding Losses ..............................................................................................................50
3.10. Maximum Interest .........................................................................................................51
SECTION 4. LOAN ADMINISTRATION ........................................................................................52
4.1. Manner of Borrowing and Funding Revolver Loans. ....................................................52
4.2. Defaulting Lender. .........................................................................................................53
4.3. Number and Amount of LIBOR Loans; Determination of Rate ...................................54
4.4. Borrower Agent .............................................................................................................54
4.5. One Obligation ..............................................................................................................55
4.6. Effect of Termination ....................................................................................................55
SECTION 5. PAYMENTS..................................................................................................................55
5.1. General Payment Provisions ..........................................................................................55
5.2. Repayment of Revolver Loans ......................................................................................55
5.3. Payment of Other Obligations .......................................................................................56
5.4. Marshaling; Payments Set Aside ...................................................................................56
5.5. Application and Allocation of Payments. ......................................................................56
5.6. Dominion Account ........................................................................................................57
5.7. Account Stated...............................................................................................................57
5.8. Taxes. ............................................................................................................................58
5.9. Lender Tax Information. ...............................................................................................58
5.10. Nature and Extent of Each Borrower’s Liability. ..........................................................59
SECTION 6. CONDITIONS PRECEDENT .......................................................................................62
6.1. Conditions Precedent to Initial Loans ...........................................................................62
6.2. Conditions Precedent to All Credit Extensions .............................................................63
SECTION 7. COLLATERAL .............................................................................................................63
7.1. Grant of Security Interest ..............................................................................................63
7.2. Liens on Deposit Accounts, Securities Accounts and Commodity Accounts; Cash
Collateral. ......................................................................................................................65
7.3. Real Estate Collateral. ...................................................................................................65
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7.4. Other Collateral. ............................................................................................................65
7.5. No Assumption of Liability ...........................................................................................66
7.6. Further Assurances ........................................................................................................66
7.7. Additional Borrowers ....................................................................................................66
SECTION 8. COLLATERAL ADMINISTRATION .........................................................................67
8.1. Borrowing Base Certificates ..........................................................................................67
8.2. Administration of Accounts. .........................................................................................67
8.3. Administration of Inventory. .........................................................................................68
8.4. Administration of Equipment. .......................................................................................69
8.5. Administration of Deposit Accounts, Securities Accounts and Commodities Accounts70
8.6. General Provisions. ........................................................................................................71
8.7. Power of Attorney .........................................................................................................73
SECTION 9. REPRESENTATIONS AND WARRANTIES .............................................................73
9.1. General Representations and Warranties .......................................................................73
9.2. Complete Disclosure .....................................................................................................79
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS ...............................................79
10.1. Affirmative Covenants ..................................................................................................79
10.2. Negative Covenants .......................................................................................................83
10.3. Financial Covenants ......................................................................................................90
SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT ...............................................91
11.1. Events of Default ...........................................................................................................91
11.2. Remedies upon Default .................................................................................................93
11.3. License ...........................................................................................................................94
11.4. Setoff .............................................................................................................................94
11.5. Remedies Cumulative; No Waiver. ...............................................................................94
SECTION 12. AGENT .........................................................................................................................94
12.1. Appointment, Authority and Duties of Agent. ..............................................................94
12.2. Agreements Regarding Collateral and Borrower Materials. .........................................96
12.3. Reliance By Agent .........................................................................................................96
12.4. Action Upon Default .....................................................................................................97
12.5. Ratable Sharing .............................................................................................................97
12.6. Indemnification ..............................................................................................................97
12.7. Limitation on Responsibilities of Agent ........................................................................97
12.8. Successor Agent and Co-Agents. ..................................................................................98
12.9. Due Diligence and Non-Reliance ..................................................................................98
12.10. Remittance of Payments and Collections. .....................................................................99
12.11. Individual Capacities .....................................................................................................99
12.12. Titles ............................................................................................................................100
12.13. Bank Product Providers ...............................................................................................100
12.14. No Third Party Beneficiaries .......................................................................................100
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS .......................................................100
13.1. Successors and Assigns ...............................................................................................100
13.2. Participations. ..............................................................................................................100
13.3. Assignments. ...............................................................................................................101
13.4. Replacement of Certain Lenders .................................................................................102
SECTION 14. GUARANTY ...............................................................................................................102
14.1. Guaranty of the Obligations ........................................................................................102
14.2. Contribution by Guarantors .........................................................................................102
14.3. Payment by Guarantors ...............................................................................................103
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14.4. Liability of Guarantors Absolute .................................................................................103
14.5. Waivers by Guarantors ................................................................................................105
14.6. Guarantors’ Rights of Subrogation, Contribution, etc. ................................................106
14.7. Subordination of Other Obligations ............................................................................106
14.8. Continuing Guaranty ...................................................................................................106
14.9. Authority of Guarantors or Borrowers ........................................................................107
14.10. Financial Condition of Borrowers ...............................................................................107
14.11. Bankruptcy, etc. ...........................................................................................................107
SECTION 15. MISCELLANEOUS ....................................................................................................108
15.1. Consents, Amendments and Waivers. .........................................................................108
15.2. Indemnity .....................................................................................................................109
15.3. Notices and Communications. .....................................................................................109
15.4. Performance of Obligors’ Obligations ........................................................................110
15.5. Credit Inquiries ............................................................................................................110
15.6. Severability ..................................................................................................................110
15.7. Cumulative Effect; Conflict of Terms .........................................................................111
15.8. Counterparts ................................................................................................................111
15.9. Entire Agreement .........................................................................................................111
15.10. Relationship with Lenders ...........................................................................................111
15.11. No Advisory or Fiduciary Responsibility ....................................................................111
15.12. Confidentiality .............................................................................................................111
15.13. Certifications Regarding Senior Notes ........................................................................112
15.14. GOVERNING LAW ...................................................................................................112
15.15. Consent to Forum ........................................................................................................112
15.16. Waivers by Obligors ....................................................................................................113
15.17. Patriot Act Notice ........................................................................................................113
15.18. NO ORAL AGREEMENT ..........................................................................................113
15.19. Non-Applicability of Chapter 346 ...............................................................................113
15.20. OBLIGORS’ WAIVER OF RIGHTS UNDER TEXAS DECEPTIVE TRADE
PRACTICES ACT .......................................................................................................113
15.21. Intercreditor Agreement ..............................................................................................114
15.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..................114
15.23. Amendment and Restatement ......................................................................................114
15.24. Release .........................................................................................................................115
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#53262136_v7
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Assignment and Acceptance
Exhibit B Assignment Notice
Schedule 1.1 Commitments of Lenders
Schedule 1.1(a) Existing Debt
Schedule 1.1(b) Investments
Schedule 2.2.1 Outstanding Letters of Credit
Schedule 8.5 Deposit Accounts, Securities Accounts and Commodities Accounts
Schedule 8.6.1 Business Locations
Schedule 9.1.1 Organization and Qualification
Schedule 9.1.4 Names and Capital Structure
Schedule 9.1.8 Surety Obligations
Schedule 9.1.9 Taxes
Schedule 9.1.11 Patents, Trademarks, Copyrights and Licenses
Schedule 9.1.14 Environmental Matters
Schedule 9.1.15 Restrictive Agreements
Schedule 9.1.16 Litigation
Schedule 9.1.18 Pension Plan Disclosures
Schedule 9.1.20 Labor Contracts
Schedule 10.2.2 Existing Liens
Schedule 10.2.5 Permitted Real Estate Dispositions
Schedule 10.2.16 Existing Affiliate Transactions
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#53262136_v7
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this “Agreement”) is dated as of August 31, 2017 among ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ LLC, a New Jersey limited liability company (“160 East”), AGGREGATE &
CONCRETE TESTING, LLC, a New York limited liability company (“Aggregate”),
ALLIANCE HAULERS, INC., a Texas corporation (“Alliance”), ATLAS-TUCK
CONCRETE, INC., an Oklahoma corporation (“Atlas”), BODE CONCRETE LLC, a
California limited liability company (“Bode Concrete”), BODE GRAVEL CO., a California
corporation (“Bode Gravel”), BRECKENRIDGE READY MIX, INC., a Texas corporation
(“Breckenridge”), CENTRAL CONCRETE SUPPLY CO., INC., a California corporation
(“Central Concrete”), CENTRAL PRECAST CONCRETE, INC., a California corporation
(“Central Precast”), COLONIAL CONCRETE, CO., a New Jersey corporation (“Colonial”),
CUSTOM-CRETE, LLC, a Texas limited liability company (“Custom-Crete”), EASTERN
CONCRETE MATERIALS, INC., a New Jersey corporation (“Eastern”), ▇▇▇▇▇▇▇ BROS.,
LLC, a Delaware limited liability company (“▇▇▇▇▇▇▇ Bros.”), ▇▇▇▇▇▇▇ WEST LLC, a New
Jersey limited liability company (“▇▇▇▇▇▇▇ West”), ▇▇▇▇▇▇ CONCRETE, LLC, a Texas
limited liability company (“▇▇▇▇▇▇”), ▇▇▇▇▇ GRAVEL COMPANY, a Michigan corporation
(“▇▇▇▇▇”), LOCAL CONCRETE SUPPLY & EQUIPMENT, LLC, a Delaware limited
liability company (“Local”), MASTER MIX, LLC, a Delaware limited liability company
(“Master”), NEW YORK SAND & STONE, LLC, a New York limited liability company
(“NYSS”), PEBBLE LANE ASSOCIATES, LLC, a Delaware limited liability company
(“Pebble”), REDI-MIX, LLC, a Texas limited liability company (“Redi-Mix”), RIGHT
AWAY REDY MIX INCORPORATED, a California corporation (“Right Away Redy Mix”),
ROCK TRANSPORT, INC., a California corporation (“Rock Transport”), SAN DIEGO
PRECAST CONCRETE, INC., a Delaware corporation (“San Diego”), ▇▇▇▇▇ PRE-CAST,
INC., a Delaware corporation (“▇▇▇▇▇”), SUPERIOR CONCRETE MATERIALS, INC., a
District of Columbia corporation (“Superior”), USC-JENNA, LLC, a Delaware limited liability
company (“Jenna”), USC-KINGS, LLC, a Delaware limited liability company (“Kings”), USC-
NYCON, LLC, a Delaware limited liability company formerly known as Riverside Materials,
LLC (“NYCON”), USC TECHNOLOGIES, INC., a Delaware corporation (“USC”), U.S.
CONCRETE ON-SITE, INC., a Delaware corporation (“On-Site”), ▇▇▇▇▇▇▇
EQUIPMENT LEASING CORP., a New York corporation (“▇▇▇▇▇▇▇”), and U.S.
CONCRETE, INC., a Delaware corporation (“US Concrete”, and together with 160 East,
Aggregate, Alliance, Atlas, Bode Concrete, Bode Gravel, Breckenridge, Central Concrete,
Central Precast, Colonial, Custom-Crete, Eastern, ▇▇▇▇▇▇▇ Bros., ▇▇▇▇▇▇▇ West, Ingram, Kurtz,
Local, Master, NYSS, Pebble, Redi-Mix, Right Away Redy Mix, Rock Transport, San Diego,
▇▇▇▇▇, Superior, Jenna, Kings, NYCON, USC, On-Site and ▇▇▇▇▇▇▇, collectively, “Borrowers”),
the hereinafter defined “Guarantors”, the financial institutions party to this Agreement from time
to time as lenders (collectively, “Lenders”), and BANK OF AMERICA, N.A., a national
banking association, as agent for the Lenders (“Agent”).
R E C I T A L S:
Borrowers, Guarantors, Agent and the Lenders are party to that certain Second Amended
and Restated Loan and Security Agreement, dated as of November 18, 2015 (as in effect
immediately prior to the date hereof, the “Initial Loan Agreement”), pursuant to which the
Lenders, among other things, agreed to amend and restate that certain First Amended and
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Restated Loan and Security Agreement, dated October 29, 2013, to increase the aggregate
Revolver Commitments from $175,000,000 to $250,000,000.
Borrowers have requested certain amendments to the Initial Loan Agreement, including a
further increase in the Revolver Commitments to $350,000,000.
Agent and Lenders are willing to amend and restate the Initial Loan Agreement, in its
entirety, to, among other things, increase the Revolver Commitments and to continue to provide
the credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1. Definitions. As used herein, the following terms have the meanings set forth
below:
ABL Priority Collateral: as defined in the Intercreditor Agreement, provided, clause (c)
of such definition shall in any event include “all Trucks and Machinery” and Machinery shall be
defined substantially similarly to the Machinery definition herein. Any reference to “ABL
Priority Collateral” (i) at a time prior to execution and delivery of the Intercreditor Agreement in
connection with any Permitted Secured Debt, shall have the meaning assigned in the
Intercreditor Agreement described in the definition of “Intercreditor Agreement” hereunder as
modified by this definition and the definition of “Intercreditor Agreement” and (ii) at a time after
the execution and delivery of the Intercreditor Agreement in connection with such Permitted
Secured Debt, shall be as defined in such Intercreditor Agreement.
Account: as defined in the UCC, including all rights to payment for goods sold or leased,
or for services rendered.
Account Debtor: a Person obligated under an Account, Chattel Paper or General
Intangible.
Accounts Formula Amount: 90% of the Value of Eligible Accounts; provided, however,
that during any 85% Accounts Formula Amount Trigger Period, upon Agent providing at least
five (5) days prior notice to Borrower Agent, the Accounts Formula Amount shall be 85% of the
Value of Eligible Accounts.
Acquisition: a transaction or series of transactions resulting in (a) acquisition of a
business, division, or substantially all assets of a Person; (b) record or beneficial ownership of
more than 50% of the Equity Interests of a Person; or (c) merger, consolidation or combination
of an Obligor or Subsidiary with another Person (other than an Obligor with an Obligor).
Affiliate: with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common Control with the
Person specified. “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have
correlative meanings.
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Agent Indemnitees: Agent and its officers, directors, employees, Affiliates, agents and
attorneys.
Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation
experts, environmental engineers or consultants, turnaround consultants, and other professionals
and experts retained by Agent.
Aggregates: all stone, sand, gravel, limestone and similar minerals, including, but not
limited to, all such materials that constitute “as-extracted collateral” under the UCC (but
excluding oil and gas).
Allocable Amount: as defined in Section 5.10.3(b).
Alternate Currency: with respect to Letters of Credit, Canadian Dollars and any other
currency that (x) is approved by Agent and the Issuing Banks, (y) is a lawful currency and (z) is
readily and freely transferable and convertible into Dollars.
Anti-Terrorism Law: any law relating to terrorism or money laundering, including the
Patriot Act.
Applicable Law: all laws, rules, regulations and governmental guidelines applicable to
the Person, conduct, transaction, agreement or matter in question, including all applicable
statutory law, common law and equitable principles, and all provisions of constitutions, treaties,
statutes, rules, regulations, orders and decrees of Governmental Authorities.
Applicable Margin: with respect to any Type of Loan, the respective margin set forth
below, based on the Average Availability for the most recent Fiscal Quarter determined as of the
most recent determination date:
Level Average Availability LIBOR Loans Base Rate Loans
I If the Average Availability is greater than the
amount equal to 66% of the aggregate
Revolver Commitments:
1.25% 0.00%
II If the Average Availability is greater than the
amount equal to 33% of the aggregate
Revolver Commitments and less than or equal
to the amount equal to 66% of the aggregate
Revolver Commitments:
1.50% 0.25%
III If the Average Availability is less than or
equal to the amount equal to 33% of the
aggregate Revolver Commitments:
1.75% 0.50%
As of the Closing Date, the Applicable Margin shall be determined as if Level II were applicable.
Thereafter, margins shall be subject to increase or decrease by Agent on the first day of the
calendar month following the receipt by the Agent of the financial statements and Compliance
Certificate for the last calendar month in each Fiscal Quarter or, in the case of the last Fiscal
Quarter of each year, for the calendar year then ended, pursuant to Section 10.1.2(a) or (b), as
applicable. If Agent is unable to calculate Average Availability for a Fiscal Quarter due to
Borrowers’ failure to deliver any Borrowing Base Certificate when required hereunder, then, at
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the option of Agent or Required Lenders margins shall be determined as if Level III were
applicable until the first day of the calendar month following receipt.
Appraisal: each appraisal that was conducted by the Agent or any of its designees prior
to the Closing Date, and each appraisal that is conducted after the Closing Date pursuant to
Section 10.1.1, for the purpose of calculating certain components of the Borrowing Base, in form
and substance reasonably satisfactory to the Agent and performed by an appraiser that is
reasonably satisfactory to the Agent. As of the Closing Date, the existing Appraisal is the April
2017 Inventory, Trucks and Machinery Appraisal.
Approved Fund: any Person (other than a natural person) that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit
in its ordinary course of activities, and is administered or managed by a Lender, an entity that
administers or manages a Lender, or an Affiliate of either.
April 2017 Inventory, Trucks and Machinery Appraisal: that certain appraisal of the
Trucks and Machinery of U.S. Concrete, Inc. by Hilco Valuation Services, LLC, with a report
date of April 28, 2017 and certain appraisal of the Inventory of U.S. Concrete, Inc. by Hilco
Valuation Services, LLC, with a report date of May 3, 2017.
Asset Disposition: a sale, lease, license, consignment, transfer or other disposition of
Property of an Obligor, including a disposition of Property in connection with a sale-leaseback
transaction or synthetic lease.
Assignment and Acceptance: an assignment agreement between a Lender and Eligible
Assignee, in the form of Exhibit A.
Availability: (a) the Borrowing Base, minus (b) the principal balance of all Revolver
Loans.
Availability Reserve: the sum (without duplication) of (a) the Inventory Reserve; (b) the
Rent and Charges Reserve; (c) the LC Reserve; (d) the Bank Product Reserve; (e) the Dilution
Reserve; (f) the amount established by Agent from time to time in its Permitted Discretion for
amounts payable at the time in question by Borrowers as license or royalty fees to owners of
sites of Aggregates extraction; (g) the amount established by Agent from time to time in its
Permitted Discretion for the amount of all fees, taxes and other amounts payable at the time in
question in respect of all licenses, registrations and other permits for Trucks and Machinery; (h)
other than liabilities pursuant to any Permitted Secured Debt, the aggregate amount of liabilities
secured by Liens upon Collateral that are senior to Agent’s Liens (but imposition of any such
reserve shall not waive an Event of Default, if any, arising therefrom); and (i) such additional
reserves, in such amounts and with respect to such matters, as Agent in its Permitted Discretion
may elect to impose from time to time. Each change to the Availability Reserve shall become
effective automatically following the Required Reserve Notice, if required, with respect to such
change. No reserve shall be established with respect to any specific Account, Inventory, Truck
or Machinery to the extent that such item is deemed not to be an Eligible Account, Eligible
Inventory, Eligible Truck or Eligible Machinery, respectively.
Average Availability: for any period, the average daily Availability during such period.
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Bail-In Action: the exercise of any Write-Down and Conversion Powers by the applicable
EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation: with respect to any EEA Member Country implementing Article 55
of Directive 2014/59/EU of the European Parliament and of the Council of the European Union,
the implementing law for such EEA Member Country from time to time which is described in
the EU Bail-In Legislation Schedule.
Bank of America: Bank of America, N.A., a national banking association, and its
successors and assigns.
Bank of America Indemnitees: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.
Bank Product: any of the following products, services or facilities extended to any
Obligor or Subsidiary by a Lender or any of its Affiliates: (a) Cash Management Services; (b)
products under Hedging Agreements; (c) commercial credit card and merchant card services; and
(d) other banking products or services as may be requested by any Obligor or Subsidiary, other
than Letters of Credit.
Bank Product Reserve: the aggregate amount of reserves established by Agent from time
to time in its Permitted Discretion in respect of Secured Bank Product Obligations (other than in
respect of any Hedging Agreement entered into and maintained in compliance with Section
10.2.14 for which the counterparty and the applicable Obligor mutually agree that a reserve shall
not be required with respect thereto).
Bankruptcy Code: Title 11 of the United States Code.
Base Rate: for any day, a per annum rate equal to the greatest of (a) the Prime Rate for
such day; (b) the Federal Funds Rate for such day, plus 0.50%; and (c) LIBOR for a 30 day
interest period as determined on such day, plus 1.0%.
Base Rate Loan: any Loan that bears interest based on the Base Rate.
Base Rate Revolver Loan: a Revolver Loan that bears interest based on the Base Rate.
Board of Governors: the Board of Governors of the Federal Reserve System.
Borrowed Money: with respect to any Obligor, without duplication, its (a) Debt that
(i) arises from the lending of money by any Person to such Obligor, (ii) is evidenced by notes,
drafts, bonds, debentures, credit documents or similar instruments, (iii) accrues interest or is a
type upon which interest charges are customarily paid (excluding holdbacks, earnouts, accrued
expenses and trade payables owing in the Ordinary Course of Business), or (iv) was issued or
assumed as full or partial payment for Property (excluding holdbacks, earnouts, accrued
expenses and trade payables incurred in the Ordinary Course of Business); (b) Capital Leases;
(c) reimbursement obligations with respect to letters of credit; and (d) guaranties of any Debt of
the foregoing types owing by another Person.
Borrower Agent: as defined in Section 4.4.
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Borrower Materials: Borrowing Base information, reports, financial statements and other
materials delivered by Borrowers hereunder, as well as other Reports and information provided
to the Agent by other Persons pursuant to, or as contemplated by, the terms hereof, or by Agent
to Lenders.
Borrowers: as defined in the preamble to this Agreement, including any other Person
who hereafter becomes a “Borrower” pursuant to Section 7.7.
Borrowing: a group of Loans of one Type that are made on the same day or are
converted into Loans of one Type on the same day.
Borrowing Base: on any date of determination, an amount equal to the lesser of (a) the
aggregate amount of Revolver Commitments, minus the LC Reserve, minus the Tax Amount; or
(b) the sum of the Accounts Formula Amount, plus the Inventory Formula Amount, plus the
Truck Formula Amount, plus the Machinery Formula Amount, minus the Availability Reserve,
minus the Tax Amount; provided, notwithstanding anything herein to the contrary, in
determining the Borrowing Base under this clause (b), the sum of (i) the Truck Formula Amount
and (ii) the Machinery Formula Amount shall not exceed the amount equal to thirty percent
(30%) of the Borrowing Base as of such date of determination. Appraisal and similar
requirements with respect to Accounts, Inventory, Trucks and Machinery need not be met with
regard to any Person or Property acquired pursuant to a Permitted Acquisition to the extent the
aggregate contribution, as of any date of determination, of all such unappraised Persons and
Property to the Borrowing Base does not exceed $15,000,000.
Borrowing Base Certificate: a certificate, in form and substance satisfactory to Agent in
its Permitted Discretion, by which Borrowers certify calculation of the Borrowing Base.
Business Day: any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the laws of, or are in fact closed in, Texas, and if such day
relates to a LIBOR Loan, any such day on which dealings in Dollar deposits are conducted
between banks in the London interbank eurodollar market.
Canadian Dollars: lawful currency of Canada.
Capital Lease: any lease that is required to be capitalized for financial reporting purposes
in accordance with GAAP. The amount of obligations under any Capital Lease at any time shall
be the capitalized amount thereof at such time determined in accordance with GAAP.
Cash Collateral: cash, and any interest or other income earned thereon, that is delivered
to Agent to Cash Collateralize any Obligations.
Cash Collateral Account: a demand deposit, money market or other account established
by Agent at such financial institution as Agent may select in its Permitted Discretion, which
account shall be subject to a Lien in favor of Agent.
Cash Collateralize: the delivery of cash to Agent, as security for the payment of
Obligations, in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC
Obligations, and (b) with respect to any inchoate, contingent or other Obligations (including
Secured Bank Product Obligations), Agent’s good faith estimate of the amount that is due or will
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become due, including all fees and other amounts relating to such Obligations. “Cash
Collateralization” has a correlative meaning.
Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by,
and backed by the full faith and credit of, the United States government, maturing within 18
months of the date of acquisition; (b) certificates of deposit, time deposits and bankers’
acceptances maturing within 18 months of the date of acquisition, and overnight bank deposits,
in each case which are issued by Bank of America or a commercial bank organized under the
laws of the United States or any state or district thereof, rated A-1 (or better) by S&P or P-1 (or
better) by ▇▇▇▇▇’▇ at the time of acquisition, and (unless issued by a Lender) not subject to
offset rights; (c) repurchase obligations with a term of not more than 30 days for underlying
investments of the types described in clauses (a) and (b) entered into with any bank described in
clause (b); (d) commercial paper issued by Bank of America or rated A-1 (or better) by S&P or
P-1 (or better) by ▇▇▇▇▇’▇, and maturing within nine months of the date of acquisition; and (e)
shares of any money market fund that has substantially all of its assets invested continuously in
the types of investments referred to above, has net assets of at least $500,000,000 and has the
highest rating obtainable from either ▇▇▇▇▇’▇ or S&P.
Cash Management Services: any services provided from time to time by a Lender or any
of its Affiliates to any Obligor or Subsidiary in connection with operating, collections, payroll,
trust, or other depository or disbursement accounts, including automated clearinghouse, e-
payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services.
CERCLA: the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. § 9601 et seq.).
Change in Control: the occurrence of any of the following: (a) any person or group of
persons (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act) of 50% or
more of the issued and outstanding voting securities within the meaning of Rule 13d-5(b) of the
Exchange Act of US Concrete or (b) a Change of Control (as defined in the Senior Notes
Agreement) or a “change in control” (or similar event) under or with respect to any Permitted
Secured Debt.
Change in Law: the occurrence, after the date hereof, of (a) the adoption, taking effect or
phasing in of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof; or (c) the making, issuance
or application of any request, guideline, requirement or directive (whether or not having the force
of law) by any Governmental Authority; provided, however, that “Change in Law” shall include,
regardless of the date enacted, adopted or issued, all requests, guidelines, requirements or
directives (i) under or relating to the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection
Act, or (ii) promulgated pursuant to Basel III by the Bank of International Settlements, the Basel
Committee on Banking Supervision (or any similar authority) or any other Governmental
Authority.
Claims: all claims, liabilities, obligations, losses, damages, penalties, judgments,
proceedings, interest, costs and expenses of any kind (including remedial response costs,
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reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment
of the Obligations or replacement of Agent or any Lender) incurred by any Indemnitee or
asserted against any Indemnitee by any Obligor or other Person, in any way relating to (a) any
Loans, Letters of Credit, Loan Documents, Borrower Materials, or the use thereof or transactions
relating thereto, (b) any action taken or omitted in connection with any Loan Documents, (c) the
existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights
or remedies under any Loan Documents or Applicable Law, or (e) failure by any Obligor to
perform or observe any terms of any Loan Document, in each case including all costs and
expenses relating to any investigation, litigation, arbitration or other proceeding (including an
Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a
party thereto.
Closing Date: as defined in Section 6.1.
Code: the Internal Revenue Code of 1986, as amended.
Collateral: all Property described in Section 7.1, all Property described in any Security
Documents as security for any Obligations, and all other Property that now or hereafter secures
(or is intended to secure) any Obligations.
Commitment: for any Lender, the aggregate amount of such Lender’s Revolver
Commitment. “Commitments” means the aggregate amount of all Revolver Commitments.
Commitment Termination Date: the earliest to occur of (a) the Revolver Termination
Date; (b) the date on which Borrowers terminate the Revolver Commitments pursuant to
Section 2.1.4; or (c) the date on which the Revolver Commitments are terminated pursuant to
Section 11.2.
Commodities Account Control Agreements: the commodities account control
agreements (whether in the form of an agreement, notice and acknowledgment or like
instrument) to be executed by each institution maintaining a Commodities Account for an
Obligor, in favor of Agent, as security for the Obligations.
Commodity Exchange Act: means the Commodity Exchange Act (7 U.S.C. § 1 et seq.),
as amended from time to time, and any successor statute.
Compliance Certificate: a certificate, in form and substance satisfactory to Agent, by
which Borrowers certify compliance with Sections 10.2.3 and 10.3.
Consolidated Net Tangible Assets: the aggregate amount of assets of the Borrowers and
Subsidiaries (less applicable reserves and other properly deductible items) after deducting
therefrom (to the extent otherwise included therein) (a) all trade payables and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the books and records of Borrowers and Subsidiaries on a
consolidated basis and in accordance with GAAP.
Contingent Obligation: any obligation of a Person arising from a guaranty, indemnity or
other assurance of payment or performance of any Debt, lease, dividend or other obligation
(“primary obligations”) of another obligor (“primary obligor”) in any manner, whether directly
or indirectly, including any obligation of such Person under any (a) guaranty, endorsement, co-
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making or sale with recourse of an obligation of a primary obligor; (b) obligation to make take-
or-pay or similar payments regardless of nonperformance by any other party to an agreement;
and (c) arrangement (i) to purchase any primary obligation or security therefor, (ii) to supply
funds for the purchase or payment of any primary obligation, (iii) to maintain or assure working
capital, equity capital, net worth or solvency of the primary obligor, (iv) to purchase Property or
services for the purpose of assuring the ability of the primary obligor to perform a primary
obligation, or (v) otherwise to assure or hold harmless the holder of any primary obligation
against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be
the stated or determinable amount of the primary obligation (or, if less, the maximum amount for
which such Person may be liable under the instrument evidencing the Contingent Obligation) or,
if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.
CWA: the Clean Water Act (33 U.S.C. §§ 1251 et seq.).
Debt: as applied to any Person, without duplication, (a) all items that would be included
as liabilities on a balance sheet in accordance with GAAP, including Capital Leases, but
excluding accrued expenses, trade payables and other non-interest bearing unsecured liabilities
incurred and being paid in the Ordinary Course of Business and deferred taxes; (b) all
Contingent Obligations; (c) all reimbursement obligations in connection with letters of credit
issued for the account of such Person; and (d) in the case of an Obligor, the Obligations. The
Debt of a Person shall include any recourse Debt of any partnership or other entity in which such
Person is a general partner or otherwise liable with respect to such recourse Debt.
Default: an event or condition that, with the lapse of time or giving of notice, would
constitute an Event of Default.
Default Rate: for any Obligation (including, to the extent permitted by law, interest not
paid when due), 2% plus the interest rate otherwise applicable thereto.
Defaulting Lender: any Lender that, as determined by Agent, (a) has failed to perform
any funding obligations hereunder, and such failure is not cured within three Business Days;
(b) has notified Agent or any Borrower that such Lender does not intend to comply with its
funding obligations hereunder or has made a public statement to the effect that it does not intend
to comply with its funding obligations hereunder or under any other credit facility; (c) has failed,
within three Business Days following request by Agent, to confirm in a manner satisfactory to
Agent that such Lender will comply with its funding obligations hereunder; or (d) has, or has a
direct or indirect parent company that has, (i) become the subject of an Insolvency Proceeding or
taken any action in furtherance thereof, (ii) had appointed for it a receiver, custodian,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the Federal Deposit
Insurance Corporation or any other state or federal regulatory authority acting in such a capacity
or (iii) become the subject of a Bail-In Action; provided, however, that a Lender shall not be a
Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an Equity
Interest in such Lender or parent company, so long as such ownership interest does not result in
or provide such Lender with immunity from the jurisdiction of courts within the United States or
from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or
such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts made with
such Lender.
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Deposit Account Control Agreements: the deposit account control agreements to be
executed by each institution maintaining a Deposit Account for an Obligor, in favor of Agent, as
security for the Obligations.
Depreciation Amount: as of any date of determination, an amount equal to: (a) with
respect to Eligible Trucks, the product of: (i) 1.6666% of the Net Orderly Liquidation Value of
the Eligible Trucks pursuant to the most recent Appraisal multiplied by (ii) the number of
months since the latest Truck Appraisal Date; adjusted upwards for depreciation attributable to
any Eligible Trucks acquired since the latest Truck Appraisal Date (calculated based on 1.6666%
per month of the cost of such acquired Eligible Trucks) and adjusted downwards for any
depreciation attributable to Eligible Trucks disposed of since the latest Truck Appraisal Date
(calculated based on 1.6666% per month of the Net Orderly Liquidation Value of such disposed
of Eligible Trucks) and (b) with respect to Eligible Machinery, the product of: (i) 1.6666% of the
Net Orderly Liquidation Value of the Eligible Machinery pursuant to the most recent Appraisal
multiplied by (ii) the number of months since the latest Machinery Appraisal Date; adjusted
downwards for any depreciation attributable to Eligible Machinery disposed of since the latest
Machinery Appraisal Date (calculated based on 1.6666% per month of the Net Orderly
Liquidation Value of such disposed of Eligible Machinery).
Designated Jurisdiction: any country or territory that is the subject of any Sanction.
Dilution: the aggregate amount of bad debt write-downs or write-off discounts, returns,
promotions, credits, credit memos and other dilutive items with respect to Accounts.
Dilution Percent: the percent, determined for Borrowers’ most recent six calendar
months, equal to (a) Dilution during such period, divided by (b) (i) cash collected from Account
Debtors during such period plus (ii) Dilution during such period.
Dilution Reserve: a reserve established by Agent at its Permitted Discretion from time to
time with respect to Dilution, in an amount equal to the amount by which the actual Dilution
Percent exceeds 2.5% during any six calendar month period.
Distribution: any declaration or payment of a distribution, interest or dividend on any
Equity Interest (other than payment-in-kind); any distribution, advance or repayment of Debt
(other than the Obligations, any Permitted Secured Debt and the Senior Notes, and as the same
may be amended, replaced, renewed, refunded, refinanced, exchanged, supplemented or
otherwise modified from time to time, and including increases from time to time in the principal
amount thereof (including in conjunction with refinancings) to the extent such amounts are in
compliance with the provisions of the definition of the term "Refinancing Conditions") to a
holder of Equity Interests; or any purchase, redemption, or other acquisition or retirement for
value of any Equity Interest (it being understood that any payment to, or on behalf of, any
employees, officers or directors, of any amounts to satisfy such employee’s, officer’s or
director’s tax obligations in connection with, or arising from, its exercise of its rights under the
stock option plans or other benefit plans shall not be deemed to be a Distribution).
Distribution Conditions: with respect to any Distribution pursuant to clause (vii) of
Section 10.2.3(a), the following conditions: (a) no Default or Event of Default exists and is
continuing or would result on a pro forma basis immediately after giving effect to such
Distribution; and (b) either one of the following conditions: (1)(i) Availability (A) for each of the
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thirty (30) days preceding the date of such Distribution and (B) as of the date of such
Distribution after giving effect to such Distribution is greater than or equal to the greater of (I)
$37,500,000 or (II) the lesser of fifteen percent (15%) of (a) the Borrowing Base or (b) the
aggregate amount of Revolver Commitments; and (ii) the Fixed Charge Coverage Ratio,
determined on a pro forma basis immediately after giving effect to such Distribution for the most
recent trailing twelve month period for which financial statements were, or were required to be,
delivered hereunder, is not less than 1.0 to 1.0; or (2) Availability (i) for each of the thirty (30)
days preceding the date of such Distribution and (ii) as of the date of such Distribution after
giving effect to such Distribution is greater than or equal to the greater of (A) $50,000,000 or (B)
the lesser of twenty percent (20%) of (I) the Borrowing Base or (II) the aggregate amount of
Revolver Commitments; provided, upon the occurrence of a Revolver Commitments Increase
Event, the $37,500,000 amount referenced in subclause (1)(i) of clause (b) of this definition and
the $50,000,000 amount referenced in subclause (2) of clause (b) of this definition (or, in each
case, such amounts as increased pursuant to this proviso after a Revolver Commitments Increase
Event), shall automatically, without any further action or documentation required, increase by
the same percentage amount as the Revolver Commitments upon such Revolver Commitments
Increase Event, such that, by way of example, if the Revolver Commitments increase by twenty
percent (20%) upon the Revolver Commitments Increase Event, then the $37,500,000 amount
and the $50,000,000 amount herein referenced (or such amounts as increased pursuant to this
proviso after a Revolver Commitments Increase Event) shall increase by twenty percent (20%).
Disqualified Equity Interests: with respect to any Person, any Equity Interests of such
Person that, by its terms (or by the terms of any security or other Equity Interests into which it is
convertible or for which it is redeemable or exchangeable), or upon the happening of any event
or condition (a) matures or is mandatorily redeemable (other than solely for Equity Interests
other than Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise
(except as a result of a change of control or asset sale so long as any rights of the holders thereof
upon the occurrence of a change of control or asset sale event shall be subject to the prior
repayment in full of the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments), (b) is redeemable at the option of the holder thereof (other
than solely for Equity Interests other than Disqualified Equity Interests), in whole or in part, (c)
provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into
or exchangeable for Debt or any other Equity Interests that would constitute Disqualified Equity
Interests, in each case, prior to the date that is ninety-one (91) days after the earlier of (x) the
Revolver Termination Date and (y) the date on which the Loans and all other Obligations that are
accrued and payable are repaid in full and the Commitments are terminated; provided, however,
that (i) only the portion of the Equity Interests that so mature or are mandatorily redeemable, are
so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to
such date shall be deemed to be Disqualified Equity Interests, (ii) if such Equity Interests are
issued to any employee or to any plan for the benefit of employees of any of the Borrowers or
the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute
Disqualified Equity Interests solely because they may be required to be repurchased by any
Borrower or Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a
result of such employee’s termination, death or disability, (iii) any class of Equity Interests of
such Person that by its terms authorizes such person to satisfy its obligations thereunder by
delivery of Equity Interests that are not Disqualified Equity Interests shall not be deemed
Disqualified Equity Interests and (iv) with respect to clause (d) above, Equity Interests
constituting Disqualified Equity Interests when issued shall not cease to constitute Disqualified
Equity Interests as a result of the subsequent extension of the Revolver Termination Date.
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Dollar Amount: with respect to any LC Obligation (or any risk participation therein)
denominated in an Alternate Currency, the amount thereof converted to Dollars as determined by
Agent or the Issuing Bank on the basis of the Spot Rate for the purchase of Dollars with such
other currency.
Dollars: lawful money of the United States.
Dominion Account: a special account established by Borrowers or other Obligors at
Bank of America or another bank acceptable to Agent, over which Agent has exclusive control
for withdrawal purposes.
EBITDA: for any period, with respect to US Concrete and its Subsidiaries on a
consolidated basis, (a) Net Income of such Person for such period, plus (b) the sum of, in each
case to the extent included in the calculation of such Net Income but without duplication, (i) any
provision for federal, state and local income and franchise taxes, (ii) interest expense, (iii) loss or
charges from extraordinary items, including losses from the sale or other disposition of assets or
any Subsidiaries, (iv) depreciation, depletion and amortization expenses, (v) all other non-cash
charges, non-cash impairment charges and non-cash expenses and losses for such period, (vi) the
amount of any non-cash (x) compensation deduction as the result of any grant of stock or stock
equivalents to employees, officers, directors or consultants and (y) incentive compensation
charges, (vii) unusual or non-recurring charges, fees and expenses which are acceptable to the
Agent in its Permitted Discretion, (viii) fees, expenses and costs incurred in connection with (A)
the establishment and closing of the credit facility evidenced by the Initial Loan Agreement and
this Agreement, (B) the Senior Notes Refinancing (as defined in the Initial Credit Agreement),
(C) any Permitted Secured Debt and (D) any Permitted Acquisition, (ix) relocation expenses in
an aggregate amount not to exceed $3,500,000 (or such greater amount approved by Agent in its
Permitted Discretion), and (x) to the extent not already included in consolidated Net Income,
cash proceeds from liability casualty and business interruption insurance, minus (c) the sum of,
in each case to the extent included in the calculation of such Net Income but without duplication,
(i) any credit for any federal, state and local income and franchise tax, (ii) gains from
extraordinary items for such period and (iii) any other non-cash gains or other items which have
been added in determining Net Income, including any reversal of a change referred to in
clause (b)(vi) above by reason of a decrease in the value of any Equity Interest. In no event shall
the calculation of “EBITDA” include any gain or loss from the early extinguishment or
repurchase of Debt.
EEA Financial Institution: (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b)
any entity established in an EEA Member Country which is a parent of an institution described in
clause (a) of this definition, or (c) any financial institution established in an EEA Member
Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition
and is subject to consolidated supervision with its parent.
EEA Member Country: any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
EEA Resolution Authority: any public administrative authority or any Person entrusted
with public administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
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#▇▇▇▇▇▇▇▇_v7
85% Accounts Formula Amount Trigger Period: the period (a) commencing on the day
that Agent in good faith determines, based on Borrower Materials, whether pursuant to the
financial statements submitted pursuant to Section 10.1.2 hereof or otherwise, that the Fixed
Charge Coverage Ratio for the most recent period of twelve calendar months for which financial
statements were, or were required to be, delivered hereunder is less than 1.10 to 1.00 (whether or
not a FCCR Trigger Period is in effect) and (b) continuing until the later of (i) the thirtieth day
after the commencement of such period and (ii) the day that each of the following is true: (x) no
Event of Default exists, and (y) Agent in good faith determines based on Borrower Materials,
whether pursuant to the financial statements submitted pursuant to Section 10.1.2 or otherwise,
that the Fixed Charge Coverage Ratio for the most recent period of twelve calendar months for
which financial statements were, or were required to be, delivered hereunder is at least 1.10 to
1.00 (whether or not a FCCR Trigger Period is in effect.)
Eligible Account: an Account owing to a Borrower that arises in the Ordinary Course of
Business from the sale of goods or rendition of services, is payable in Dollars and is deemed by
Agent, in its Permitted Discretion, to be an Eligible Account. Without limiting the foregoing,
unless such Account is subject to credit support in form and substance satisfactory to the Agent,
no Account shall be an Eligible Account if (a) it is unpaid for more than 90 days after the
original due date, or more than 120 days after the original invoice date; (b) 50% or more of the
Accounts owing by the Account Debtor are not Eligible Accounts; (c) when aggregated with
other Accounts owing by the Account Debtor, it exceeds 15% of the aggregate Eligible
Accounts; (d) it does not conform with a covenant or representation herein; (e) it is owing by a
creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction,
discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility under
this clause (e) shall be limited to the amount thereof); (f) an Insolvency Proceeding has been
commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended
or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is
subject to any country sanctions program or specially designated nationals list maintained by the
Office of Foreign Assets Control of the U.S. Treasury Department; or the Borrower is not able to
bring suit or enforce remedies against the Account Debtor through judicial process; (g) the
Account Debtor is organized or has its principal offices or assets outside the United States,
Canada, Puerto Rico, the United States Virgin Islands and the other United States territories;
provided, with respect to all Account Debtors organized or having their principal offices or
assets in the United States territories (insular areas) (other than Puerto Rico, but including the
United States Virgin Islands), the aggregate amount of Eligible Accounts for such Account
Debtors in excess of $10,000,000 shall not be Eligible Accounts under this clause (g); (h) it is
owing by a Governmental Authority; (i) it is not subject to a duly perfected, first priority Lien in
favor of Agent, or is subject to any other Lien, other than a Permitted Lien that is subordinate in
priority to the Lien in favor of the Agent; (j) the goods giving rise to it have not been delivered to
the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor,
or it otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an
Instrument of any kind that has not been delivered to Agent, or has been reduced to judgment;
(l) its payment has been extended or the Account Debtor has made a partial payment; (m) it
arises from a sale to an Affiliate, from a sale on a cash-on-delivery, ▇▇▇▇-and-hold, sale or return,
sale on approval, consignment, or other repurchase or return basis, or from a sale for personal,
family or household purposes; (n) it represents a progress billing or retainage, or relates to
services for which a performance, surety or completion bond or similar assurance has been
issued; (o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited
to the extent thereof; (p) it is a contra account; (q) it is a royalty arising from a lease or license
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allowing the extraction of the Aggregates from the property of a Borrower; (r) it relates to the
sale of Aggregates at the minehead or other site of extraction, unless an appropriate UCC-1
financing statement or mortgage in favor of the Agent complying with Section 9-502 of the UCC
as to as-extracted collateral shall have been filed in the relevant real property records; or (s) as of
any date of determination, the aggregate amount of all Eligible Accounts other than Accounts
approved by the Agent which are unpaid for more than 60, but less than 90, days after the
original due date, or more than 90, but less than 120, days after the original invoice date, exceeds
$5,000,000, to the extent of such excess. In calculating delinquent portions of Accounts under
clauses (a) and (b), credit balances owing to an Account Debtor more than 120 days old will be
netted against such Accounts.
Eligible Assignee: a Person that is (a) a Lender, an Affiliate of a Lender or an Approved
Fund; (b) any other financial institution approved by Borrower Agent (which approval shall not
be unreasonably withheld or delayed, and shall be deemed given if no objection is made within
five Business Days after notice of the proposed assignment) and Agent (which approval shall not
be unreasonably withheld or delayed), which extends revolving credit facilities of this type in its
Ordinary Course of Business; and (c) during any Event of Default, any Person acceptable to
Agent in its Permitted Discretion.
Eligible Inventory: Inventory owned by a Borrower that Agent, in its Permitted
Discretion, deems to be Eligible Inventory. Without limiting the foregoing, no Inventory shall
be Eligible Inventory unless it (a) is finished goods or raw materials, and not work-in-process,
packaging or shipping materials, labels, samples, display items, bags, replacement parts or
manufacturing supplies; (b) is not held on consignment, nor subject to any deposit or down
payment; (c) is in new and saleable condition and is not damaged, defective, shopworn or
otherwise unfit for sale; (d) is not slow-moving, perishable, obsolete or unmerchantable, and
does not constitute returned or repossessed goods; (e) meets all material standards imposed by
any Governmental Authority that has jurisdiction over such Inventory, and does not constitute
hazardous materials under any relevant Environmental Law; (f) conforms with the covenants and
representations herein; (g) is subject to Agent’s duly perfected, first priority Lien, and no other
Lien, other than a Permitted Lien that is subordinate in priority to the Lien in favor of Agent;
(h) is within the United States, Canada or Puerto Rico, is not in transit except between locations
of Borrowers, and is not consigned to any Person; (i) is not subject to any warehouse receipt or
negotiable Document; (j) is not subject to any License or other arrangement that restricts such
Borrower’s or Agent’s right to dispose of such Inventory, unless Agent has received an
appropriate Lien Waiver; (k) is not located on leased premises, unless the lessor has delivered a
Lien Waiver or an appropriate Rent and Charges Reserve has been established therefor; (l) is not
in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder
or other Person, unless such Person has delivered a Lien Waiver or an appropriate Rent and
Charges Reserve has been established therefor; (m) is not fuel or gasoline; (n) is not goods which
constitute forms or casting patterns used in the production of pre-cast Inventory; (o) is not goods
which constitute personal computers (and equipment and supplies related thereto); (p) is not
spare parts used in the maintenance of Trucks or Machinery, (q) is not custom Inventory
manufactured for a specific project; and (r) is not Aggregates located at the site of extraction
unless an appropriate UCC-1 financing statement or mortgage in favor of Agent complying with
Section 9-502 of the UCC as to as-extracted collateral shall have been properly filed in the
relevant real property records.
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Eligible Machinery: the Machinery of each Borrower (a) that is owned solely by such
Borrower, (b) with respect to which the Agent has a valid, perfected and enforceable first-
priority Lien, subject only to Permitted Liens that are subordinate in priority to the Agent’s Lien;
provided, however, until 90 days after the acquisition date of any Machinery that is evidenced by
a certificate of title issued by the applicable Governmental Authority, as to the perfection and
priority of the Lien on any such Machinery, the requirements of this clause (b) shall be deemed
satisfied if the ownership of such Machinery is evidenced by an application for a certificate of
title filed with the applicable Governmental Authority, a copy of which has been delivered to
Agent, along with a receipt therefor issued by such Governmental Authority, (c) with respect to
which no covenant, representation or warranty contained in any Loan Document relating to such
Machinery has been breached, (d) that is not, in the Agent’s Permitted Discretion, obsolete,
unmerchantable, defective or otherwise unusable and is in good working order, condition and
repair (ordinary wear and tear excepted), (e) to the extent evidenced by a certificate of title, that
is evidenced by a certificate of title issued by the appropriate Governmental Authority of the
state in which such Machinery is registered in the name of such Borrower and which certificate
of title is in the possession of the Agent or any agent or bailee acting for the Agent or the
applicable Governmental Authority for lien recordation purposes; provided, however, the
requirements of this clause (e) shall be deemed satisfied for a period of 90 days from the
acquisition date of any Machinery that is evidenced by a certificate of title issued by the
applicable Governmental Authority if ownership of such Machinery is evidenced by an
application for a certificate of title in respect of such Machinery filed with the applicable
Governmental Authority, a copy of which has been delivered to Agent, along with a receipt
therefor issued by such Governmental Authority, (f) to the extent evidenced by a certificate of
title issued by the applicable Governmental Authority, is properly registered in the name of such
Borrower (or its predecessor in interest) in one of the states of the United States, provinces of
Canada or Puerto Rico, as applicable, and all registration fees then due for such Machinery has
been paid, (g) to the extent evidenced by a certificate of title issued by the applicable
Governmental Authority, that is currently licensed for commercial use in the United States,
Canada or Puerto Rico, as applicable, and is in compliance with all applicable motor vehicle
laws, (h) that is insured by such Borrower pursuant to the terms of this Agreement, and (i) that
the Agent deems to be Eligible Machinery in its Permitted Discretion. Machinery which would
otherwise be eligible pursuant to the foregoing criteria but which were not owned by a Borrower
on the date of the most recent Appraisal delivered to the Agent shall only become “Eligible
Machinery” on the last day of any fiscal month during which (or after) such Machinery is (or
was) acquired by such Borrower. Notwithstanding anything to the contrary herein, the aggregate
Value of Machinery deemed eligible pursuant to the provisos contained in clause (b) or
clause (e) of the definition of Eligible Machinery, shall at no time exceed $1,000,000 and no
Machinery shall be deemed eligible pursuant to the provisos contained in clause (b) or clause (e)
of the definition of Eligible Machinery during the continuance of an Event of Default.
Eligible Trucks: the Trucks of each Borrower (a) that are owned solely by such
Borrower, (b) with respect to which the Agent has a valid, perfected and enforceable first-
priority Lien, subject only to Permitted Liens that are subordinate in priority to the Agent’s Lien;
provided, however, until 90 days after the acquisition date of any Truck, as to the perfection and
priority of the Lien on any such Truck, the requirements of this clause (b) shall be deemed
satisfied if the ownership of such Truck is evidenced by an application for a certificate of title
filed with the applicable Governmental Authority, a copy of which has been delivered to Agent,
along with a receipt therefor issued by such Governmental Authority, (c) with respect to which
no covenant, representation or warranty contained in any Loan Document relating to such Truck
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has been breached, (d) that are not, in the Agent’s Permitted Discretion, obsolete,
unmerchantable, defective or otherwise unusable and are in good working order, condition and
repair (ordinary wear and tear excepted), (e) that are evidenced by a certificate of title issued by
the appropriate Governmental Authority of the state in which such Truck is registered in the
name of such Borrower and which certificate of title is in the possession of the Agent or any
agent or bailee acting for the Agent or the applicable Governmental Authority for lien
recordation purposes; provided, however, the requirements of this clause (e) shall be deemed
satisfied for a period of 90 days from the acquisition date of any Truck if ownership of such
Truck is evidenced by an application for a certificate of title in respect of such Truck filed with
the applicable Governmental Authority, a copy of which has been delivered to Agent, along with
a receipt therefor issued by such Governmental Authority, (f) are properly registered in the name
of such Borrower (or its predecessor in interest) in one of the states of the United States,
provinces of Canada or Puerto Rico, as applicable, and all registration fees then due for such
Truck have been paid, (g) that are currently licensed for commercial use in the United States,
Canada or Puerto Rico, as applicable, and are in compliance with all applicable motor vehicle
laws, (h) that are insured by such Borrower pursuant to the terms of this Agreement, and (i) that
the Agent deems to be Eligible Trucks in its Permitted Discretion. Trucks which would
otherwise be eligible pursuant to the foregoing criteria but which were not owned by a Borrower
on the date of the most recent Appraisal delivered to the Agent shall only become “Eligible
Trucks” on the last day of any fiscal month during which (or after) such Truck is (or was)
acquired by such Borrower. Notwithstanding anything to the contrary herein, the aggregate
Value of Trucks deemed eligible pursuant to the provisos contained in clause (b) or clause (e) of
the definition of Eligible Trucks, shall at no time exceed $1,000,000 and no Trucks shall be
deemed eligible pursuant to the provisos contained in clause (b) or clause (e) of the definition of
Eligible Trucks during the continuance of an Event of Default.
Enforcement Action: any action to enforce any Obligations (other than Secured Bank
Product Obligations) or Loan Documents or to exercise any rights or remedies relating to any
Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of
setoff or recoupment, exercise of any right to act in an Obligor’s Insolvency Proceeding or to
credit bid Obligations, or otherwise).
Environmental Laws: all Applicable Laws (including all programs, permits and guidance
promulgated by regulatory agencies), relating to public health (but excluding occupational safety
and health, to the extent regulated by OSHA) or the protection or pollution of the environment,
including CERCLA, RCRA and CWA.
Environmental Notice: a written notice from any Governmental Authority or other
Person of any alleged noncompliance with, investigation of an alleged violation of, litigation
relating to, or potential fine or liability in the amount of $100,000 or more under any
Environmental Law, or with respect to any Environmental Release, environmental pollution or
hazardous materials, including any complaint, summons, citation, order, claim, demand or
request for correction, remediation or otherwise.
Environmental Release: a release as defined in CERCLA or under any other
Environmental Law.
Equity Interest: the interest of any (a) shareholder in a corporation; (b) partner in a
partnership (whether general, limited, limited liability or joint venture); (c) member in a limited
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liability company; or (d) other Person having any other form of equity security or ownership
interest, including, without limitation, a warrant or right to purchase an equity security or an
ownership interest.
ERISA: the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate: any trade or business (whether or not incorporated) that, together with
an Obligor, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event: (a) a Reportable Event with respect to a Pension Plan or Multiemployer
Plan; (b) a withdrawal by any Obligor or ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under
Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Obligor or ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment
as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the determination that any
Pension Plan or Multiemployer Plan is considered an at risk plan or a plan in critical or
endangered status under the Code, ERISA or the Pension Protection Act of 2006; (f) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (g) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any Obligor or ERISA Affiliate.
EU Bail-In Legislation Schedule: the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor person), as in effect from time to time.
Event of Default: as defined in Section 11.
Excluded Deposit Account: as defined in Section 8.5.
Excluded Machinery: as defined in Section 10.1.11.
Excluded Property: collectively, (i) any property to the extent that such grant of a
security interest is prohibited by Applicable Law, requires a consent not obtained of any
Governmental Authority (provided, however, in no event shall this include or in any way pertain
to any Truck or Machinery if ownership of such Truck or Machinery is evidenced by an
application for a certificate of title in respect of such Truck or Machinery filed with the
applicable Governmental Authority, a copy of which has been delivered to Agent along with a
receipt therefore issued by such Governmental Authority) pursuant to such Applicable Law or is
prohibited by, or constitutes a breach or default under or results in the termination of or gives rise
to a right on the part of the parties thereto other than US Concrete and its Subsidiaries to
terminate (or materially modify) or requires any consent not obtained under, any contract,
license, agreement, instrument or other document evidencing or giving rise to such property or,
in the case of any Investment Property, pledged stock or pledged note or any applicable
shareholder or similar agreement, except to the extent that such Applicable Law or the term in
such contract, license, agreement, instrument or other document or shareholder or similar
agreement providing for such prohibition, breach, default or right of termination or modification
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or requiring such consent is ineffective under the UCC or other Applicable Law; provided that
from and after the Closing Date, the Obligors shall not knowingly permit to become effective in
any document creating, governing, or providing for any contract, license, agreement, instrument
or other document a provision which would prohibit the creation of a Lien on such license,
agreement, instrument, or other document in favor of Agent with the intention of circumventing
the Lien created by this Agreement, (ii) Property owned by any Obligor that is subject to a
purchase money Lien or a Capital Lease permitted pursuant to Section 10.2.2, but only for so
long as the contract or other agreement in which such Lien is granted (or in the documentation
providing for such Capital Lease) prohibits or requires the consent of any Person other than the
Obligors and their Affiliates as a condition to the creation of any other Lien on such Property and
only to the extent such prohibition or requirement is not rendered unenforceable or otherwise
deemed ineffective by the UCC or any other Applicable Law, (iii) any trademark application
filed on an "intent-to-use" basis, prior to the filing and acceptance of a “Statement of Use”
pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or an “Amendment to Allege Use” pursuant to
Section 1(c) of the ▇▇▇▇▇▇ Act with respect thereto, provided that any such trademark
application shall automatically be included in the Collateral upon the filing of acceptable
evidence of use of such trademark, (iv) any assets other than Trucks and Machinery the
perfection of which would require notation of a lien on a certificate of title, (v) any Real Estate
owned or leased by an Obligor (other than that constituting As-Extracted Collateral) and (vi)
Equity Interests of any Subsidiary of US Concrete; provided, however, “Excluded Property”
shall (a) not include any proceeds, substitutions or replacements of Excluded Property (unless
such proceeds, substitutions or replacements would constitute Excluded Property) and (b) with
respect to the exclusions set forth in clause (i) above, not be construed to limit, impair or
otherwise affect the Agent’s continuing security interests in any Obligor’s rights to or interests of
any Obligor in (x) monies due or to become due under any such contract, license, agreement,
instrument or other document (to the extent not prohibited by such contract, license, agreement,
instrument or other document and applicable law), or (y) any proceeds from the sale, license,
lease or other disposition of any such contract, license, agreement, instrument or other document.
Excluded Securities and Commodities Account: as defined in Section 8.5.
Excluded Swap Obligation: with respect to an Obligor, each Swap Obligation as to
which, and only to the extent that, such Obligor's guaranty of or grant of a Lien as security for
such Swap Obligation is or becomes illegal under the Commodity Exchange Act because the
Obligor does not constitute an “eligible contract participant” as defined in the Commodity
Exchange Act (determined after giving effect to any keepwell, support or other agreement for the
benefit of such Obligor and all guarantees of Swap Obligations by other Obligors) when such
guaranty or grant of Lien becomes effective with respect to the Swap Obligation. If a Hedging
Agreement governs more than one Swap Obligation, only the Swap Obligation(s) or portions
thereof described in the foregoing sentence shall be Excluded Swap Obligation(s) for the
applicable Obligor.
Excluded Tax: with respect to Agent, any Lender, Issuing Bank or any other recipient of
a payment to be made by or on account of any Obligation, (a) taxes imposed on or measured by
its income, receipts or capital (however denominated), and franchise taxes imposed on it (in lieu
of such taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located; (b) any branch profits taxes imposed
by the United States or any similar tax imposed by any other jurisdiction in which Borrower
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Agent is located; (c) any backup withholding tax required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with Section 5.9; (d) in the case of a
Foreign Lender, any United States withholding tax that is (i) required pursuant to laws in force at
the time such Lender becomes a Lender (or designates a new Lending Office) hereunder, or
(ii) attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to
comply with Section 5.9, except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from Borrowers with respect to such withholding tax; and (e) taxes imposed
on it by reason of Section 1471 or 1472 of the Code.
Excluded Truck: as defined in Section 10.1.11.
Existing Debt: Indebtedness outstanding as of the Closing Date and described in
Schedule 1.1(a) and any extensions, replacements or renewals thereof which do not result in an
increase in the amount thereof.
Extraordinary Expenses: all costs, expenses or advances that Agent may incur during a
Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor,
including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal,
insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation
of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether
instituted by or against Agent, any Lender, any Obligor, any representative of creditors of an
Obligor or any other Person) in any way relating to any Collateral (including the validity,
perfection, priority or avoidability of Agent’s Liens with respect to any Collateral), Loan
Documents, Letters of Credit or Obligations, including any lender liability or other Claims;
(c) the exercise, protection or enforcement of any rights or remedies of Agent in, or the
monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges or
Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and
documentation of any modification, waiver, workout, restructuring or forbearance with respect to
any Loan Documents or Obligations; and (g) Protective Advances. Such costs, expenses and
advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility
reservation and standby fees, reasonable legal fees, appraisal fees, brokers’ fees and
commissions, auctioneers’ fees and commissions, accountants’ fees, environmental study fees,
wages and salaries paid to employees of any Obligor or independent contractors in liquidating
any Collateral, and travel expenses.
FCCR Trigger Period: the period (a) commencing on the earlier of the day that an Event
of Default occurs, or the day Availability is less than the greater of (i) $25,000,000 or (ii) the
lesser of ten percent (10%) of (A) the Borrowing Base or (B) the aggregate amount of Revolver
Commitments, and (b) continuing until, the first date on which, during the preceding thirty (30)
consecutive days, no Event of Default has existed and Availability has been greater than the
greater of (i) $25,000,000 or (ii) the lesser of ten percent (10%) of (A) the Borrowing Base or (B)
the aggregate amount of Revolver Commitments; provided, upon the occurrence of a Revolver
Commitments Increase Event, the $25,000,000 amount referenced in subclause (i) of clause (a)
above and subclause (i) of clause (b) above (or such amounts as increased pursuant to this
proviso after a Revolver Commitments Increase Event), shall automatically, without any further
action or documentation required, increase by the same percentage amount as the Revolver
Commitments upon such Revolver Commitments Increase Event, such that, by way of example,
if the Revolver Commitments increase by twenty percent (20%) upon the Revolver
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Commitments Increase Event, then the $25,000,000 amount herein referenced (or such amount
as increased pursuant to this proviso after a Revolver Commitments Increase Event) shall
increase by twenty percent (20%).
Federal Funds Rate: (a) the weighted average of interest rates on overnight federal funds
transactions with members of the Federal Reserve System on the applicable Business Day (or on
the preceding Business Day, if the applicable day is not a Business Day), as published by the
Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published
on the next Business Day, the average rate (rounded, if necessary, to the nearest 1/100th of 1%)
charged to Bank of America on the applicable day on such transactions, as determined by Agent.
First Amendment Closing Date: March 28, 2013.
Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal
Year.
Fiscal Year: the fiscal year of US Concrete and Subsidiaries for accounting and tax
purposes, ending on December 31 of each year.
Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for US
Concrete and Subsidiaries for the most recently ended trailing twelve month period for which
financial statements were, or were required to be, delivered hereunder, of (a) EBITDA minus Net
Capital Expenditures to (b) Fixed Charges.
Fixed Charges: the sum of cash interest expense, cash principal payments (including
payments permitted pursuant to Section 10.2.7) made on Borrowed Money (other than (i) the
Revolver Loans and (ii) Debt refinanced with Refinancing Debt), cash Distributions (other than
Upstream Payments) made, and cash federal income taxes paid net of any refunds (but in each
case excluding amounts taken into account in determining EBITDA other than those specifically
included by this definition); provided, however, (a) solely for purposes of calculating the Fixed
Charge Coverage Ratio pursuant to Section 10.3.1 (and not for the purposes of calculating the
Fixed Charge Coverage Ratio in connection with any other provision of this Agreement,
including, without limitation, the definitions of “Distribution Conditions”, “Permitted
Acquisition”, “Prepayment Conditions”, and “Investment Conditions”), Fixed Charges shall
exclude from the calculation thereof any repurchase or retirement of warrants existing as of the
Initial Closing Date pursuant to and in accordance with clause (vii) of Section 10.2.3(a), and (b)
for purposes of calculating the Fixed Charge Coverage Ratio pursuant to Section 10.3.1 and
pursuant to any other provision of this Agreement, including, without limitation, the definitions
of “Distribution Conditions”, “Permitted Acquisition”, “Prepayment Conditions”, and
“Investment Conditions”, Fixed Charges shall exclude from the calculation thereof any stock
redemptions by US Concrete pursuant to and in accordance with clause (viii) of Section
10.2.3(a).
FLSA: the Fair Labor Standards Act of 1938, as amended.
Foreign Lender: any Lender that is organized under the laws of a jurisdiction other than
the laws of the United States, or any state or district thereof.
Foreign Plan: any employee benefit plan (as defined in Section 3(3) of ERISA, whether
or not subject to ERISA) or arrangement (a) maintained or contributed to by any Obligor or
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Subsidiary that is not subject to the laws of the United States; or (b) mandated by a government
other than the United States for employees of any Obligor or Subsidiary.
Foreign Subsidiary: a Subsidiary that is a “controlled foreign corporation” under Section
957 of the Code, such that a guaranty by such Subsidiary of the Obligations or a Lien on the
assets of such Subsidiary to secure the Obligations would result in material tax liability to
Borrowers.
Fronting Exposure: a Defaulting Lender’s Pro Rata share of LC Obligations or
Swingline Loans, as applicable, except to the extent allocated to other Lenders under Section
4.2.
Full Payment: with respect to any Obligations, (a) the full and indefeasible cash payment
thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding
(whether or not allowed in the proceeding); and (b) if such Obligations are LC Obligations or
inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of
credit acceptable to Agent in its Permitted Discretion, in the amount of required Cash Collateral).
No Loans shall be deemed to have been paid in full until all Commitments related to such Loans
have expired or been terminated.
GAAP: generally accepted accounting principles in effect in the United States from time
to time.
Governmental Approvals: all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.
Governmental Authority: any federal, state, local, foreign or other agency, authority,
body, commission, court, instrumentality, political subdivision, or other entity or officer
exercising executive, legislative, judicial, regulatory or administrative functions for any
governmental, judicial, investigative, regulatory or self-regulatory authority.
Guarantor Payment: as defined in Section 5.10.3(b).
Guarantors: Alberta Investments, Inc., a Texas corporation, American Concrete
Products, Inc., a California corporation, Atlas Redi-Mix, LLC, a Texas limited liability company,
▇▇▇▇▇ Concrete Enterprises, LLC, a Texas limited liability company, ▇▇▇▇▇ Industries, Inc., a
Texas corporation, ▇▇▇▇▇ Investment Corporation, Inc., a Delaware corporation, ▇▇▇▇▇
Management, Inc., a Texas corporation, Concrete XXXIV Acquisition, Inc., a Delaware
corporation, Concrete XXXV Acquisition, Inc., a Delaware corporation, Concrete XXXVI
Acquisition, Inc., a Delaware corporation, Custom-Crete Redi-Mix, LLC, a Texas limited
liability company, Hamburg Quarry Limited Liability Company, a New Jersey limited liability
company, Master Mix Concrete, LLC, a New Jersey limited liability company, MG, LLC, a
Maryland limited liability company, NYC Concrete Materials, LLC, a Delaware limited liability
company, Outrigger, LLC, a Delaware limited liability company, Premco Organization, Inc., a
New Jersey corporation, Redi-Mix Concrete, L.P., a Texas limited partnership, Redi-Mix, GP,
LLC, a Texas limited liability company, Sierra Precast, Inc., a California corporation, Titan
Concrete Industries, Inc., a Delaware corporation, USC Atlantic, Inc., a Delaware corporation,
USC Management Co., LLC, a Delaware limited liability company, USC Payroll, Inc., a
Delaware corporation, U.S. Concrete Texas Holdings, Inc., a Delaware corporation, Yardarm,
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LLC, a Delaware limited liability company, and each other Person who from time to time
guarantees payment or performance of any Obligations.
Guaranty: the guaranty provided by each Guarantor hereunder, and each other guaranty
agreement executed by a Guarantor in favor of Agent.
Guaranteed Obligations: as defined in Section 14.1.
Hedging Agreement: any “swap agreement” as defined in Section 101(53B)(A) of the
Bankruptcy Code.
Indemnified Taxes: Taxes other than Excluded Taxes.
Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and
Bank of America Indemnitees.
Initial Closing Date: October 29, 2013.
Initial Loan Agreement: as defined in the recitals to this Agreement.
Insolvency Proceeding: any case or proceeding commenced by or against a Person under
any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order
for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt adjustment
law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other
custodian for such Person or any part of its Property; or (c) an assignment or trust mortgage for
the benefit of creditors.
Intellectual Property: all intellectual and similar Property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets,
confidential or proprietary information, customer lists, know-how, software and databases; all
embodiments or fixations thereof and all related documentation, applications, registrations and
franchises; all licenses or other rights to use any of the foregoing; and all books and records
relating to the foregoing.
Intellectual Property Claim: any claim or assertion (whether in writing, by suit or
otherwise) that an Obligor’s or Subsidiary’s ownership, use, marketing, sale or distribution of
any Inventory, Equipment, Intellectual Property or other Property violates another Person’s
Intellectual Property.
Intercreditor Agreement: an intercreditor agreement substantially in the form of that
certain Intercreditor Agreement dated as of August 31, 2010 by and among the Agent, the Senior
Notes Agent (as defined in the Initial Loan Agreement) as successor to the Convertible Notes
Agent (as defined in the Initial Loan Agreement), and the Obligors party thereto, as amended by
the First Amendment to Intercreditor Agreement dated as of March 22, 2013, as further amended
by the Second Amendment to Intercreditor Agreement dated November 22, 2013, together with
any changes or modification thereto that the Agent deems necessary in its Permitted Discretion,
including, without limitation, (i) changes to the definition of “ABL Priority Collateral” or similar
definition to include Machinery in such definition and (ii) changes to the “No New Liens”
provisions or similar provisions so that such restrictions do not apply to the granting of new
Liens on the Equity Interests and Real Estate of the Obligors to allow for such Liens in
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connection with any Permitted Secured Debt and (iii) changes to the “ABL Cap Amount” or
similar definition such that such amount shall be an amount equal to or greater than 110% of the
aggregate Revolver Commitments, and as the same may be further amended, replaced, renewed,
supplemented or otherwise modified from time to time.
Interest Coverage Ratio: the ratio, determined on a consolidated basis for US Concrete
and Subsidiaries for the most recently ended trailing twelve month period for which financial
statements were, or were required to be, delivered hereunder, of (a) EBITDA to (b) total interest
expense in accordance with GAAP (including that portion attributable to Capital Leases) payable
in cash in such period, net of cash interest income received in such period.
Interest Period: as defined in Section 3.1.3.
Inventory: as defined in the UCC, including all goods intended for sale, lease, display or
demonstration; all work in process; and all raw materials, and other materials and supplies of any
kind that are or could be used in connection with the manufacture, printing, packing, shipping,
advertising, sale, lease or furnishing of such goods, or otherwise used or consumed in a
Borrower’s business (but excluding Equipment).
Inventory Formula Amount: the lesser of (i) 70% of the Value of Eligible Inventory, or
(ii) 90% of the product of (A) NOLV Percentage multiplied by (B) Value of Eligible Inventory.
Inventory Reserve: reserves established by Agent from time to time in its Permitted
Discretion to reflect factors that may negatively impact the Value of Inventory, including change
in salability, obsolescence, seasonality, theft, shrinkage, imbalance, change in composition or
mix, markdowns and vendor chargebacks (but no Inventory Reserve shall be established with
respect to the NOLV Percentage of the Value of Eligible Inventory based on factors taken into
account in determining the Net Orderly Liquidation Value of such Inventory).
Investment: an Acquisition; an acquisition of record or beneficial ownership of any
Equity Interests of a Person; or an advance or capital contribution to or other investment in a
Person.
Investment Conditions: with respect to any Investment in a non-wholly owned
Subsidiary that is not an Obligor hereunder pursuant to clause (a) of the definition of Restricted
Investment, the following conditions: (a) no Default or Event of Default exists and is continuing
or would result on a pro forma basis immediately after giving effect to such Investment; and (b)
either one of the following conditions: (i)(A) Availability (1) for each of the thirty (30) days
preceding the date of such Investment and (2) as of the date of such Investment after giving
effect to such Investment is greater than or equal to the greater of (I) $37,500,000 or (II) the
lesser of fifteen percent (15%) of (a) the Borrowing Base or (b) the aggregate amount of
Revolver Commitments and (B) the Fixed Charge Coverage Ratio, determined on a pro forma
basis immediately after giving effect to such Investment for the most recent trailing twelve
month period for which financial statements were, or were required to be, delivered hereunder, is
not less than 1.0 to 1.0 or (ii) Availability (A) for each of the thirty (30) days preceding the date
of such Investment and (B) as of the date of such Investment after giving effect to such
Investment is greater than or equal to the greater of (1) $50,000,000 or (2) the lesser of twenty
percent (20%) of (I) the Borrowing Base or (II) the aggregate amount of Revolver Commitments;
provided, upon the occurrence of a Revolver Commitments Increase Event, the $37,500,000
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amount referenced in subclause (i)(A) of clause (b) above and the $50,000,000 amount
referenced in subclause (ii) of clause (b) above (or, in each case, such amounts as increased
pursuant to this proviso after a Revolver Commitments Increase Event), shall automatically,
without any further action or documentation required, increase by the same percentage amount as
the Revolver Commitments upon such Revolver Commitments Increase Event, such that, by way
of example, if the Revolver Commitments increase by twenty percent (20%) upon the Revolver
Commitments Increase Event, then the $37,500,000 amount and the $50,000,000 amount herein
referenced (or such amounts as increased pursuant to this proviso after a Revolver Commitments
Increase Event) shall increase by twenty percent (20%).
IP Assignment: a collateral assignment or security agreement pursuant to which an
Obligor assigns or grants a security interest in its interests in patents, trademarks or other
intellectual property to Agent, as security for the Obligations.
IRS: the United States Internal Revenue Service.
Issuing Bank: Bank of America or any Affiliate of Bank of America, or any replacement
issuer appointed pursuant to Section 2.2.4.
Issuing Bank Indemnitees: Issuing Bank and its officers, directors, employees, Affiliates,
agents and attorneys.
LC Application: an application by Borrower Agent to Issuing Bank for issuance of a
Letter of Credit, in form and substance satisfactory to Issuing Bank.
LC Conditions: the following conditions necessary for issuance of a Letter of Credit:
(a) each of the conditions set forth in Section 6; (b) after giving effect to such issuance, total LC
Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no
Revolver Loans are outstanding, the LC Obligations do not exceed the Borrowing Base (without
giving effect to the LC Reserve for purposes of this calculation); (c) the expiration date of such
Letter of Credit is (i) no more than 365 days from issuance, in the case of standby Letters of
Credit, and (ii) no more than 120 days from issuance, in the case of documentary Letters of
Credit; (d) the Letter of Credit and payments thereunder are denominated in Dollars or any
Alternate Currency; and (e) the purpose and form of the proposed Letter of Credit is satisfactory
to Agent and Issuing Bank in their discretion.
LC Documents: all documents, instruments and agreements (including LC Requests and
LC Applications) delivered by Borrowers or any other Person to Issuing Bank or Agent in
connection with any Letter of Credit.
LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrowers
for any drawings under Letters of Credit; and (b) the stated amount of all outstanding Letters of
Credit.
LC Request: a request for issuance of a Letter of Credit, to be provided by Borrower
Agent to Issuing Bank, in form satisfactory to Agent and Issuing Bank.
LC Reserve: the aggregate of all LC Obligations, other than those that have been Cash
Collateralized by Borrowers.
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Lender Indemnitees: Lenders and their officers, directors, employees, Affiliates, agents
and attorneys.
Lenders: as defined in the preamble to this Agreement, including Agent in its capacity as
a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant
to an Assignment and Acceptance.
Lending Office: the office designated as such by the applicable Lender at the time it
becomes party to this Agreement or thereafter by notice to Agent and Borrower Agent.
Letter of Credit: any standby or documentary letter of credit issued by Issuing Bank for
the account of a Borrower, or any indemnity, guarantee, exposure transmittal memorandum or
similar form of credit support issued by Agent or Issuing Bank for the benefit of a Borrower.
Letter of Credit Subline: $50,000,000.
LIBOR: for any Interest Period for a LIBOR Loan, the per annum rate of interest
(rounded, if necessary, to the nearest 1/100th of 1% and in no event less than zero) determined
by Agent at approximately 11:00 a.m. (London time) two Business Days prior to commencement
of such Interest Period, for a term comparable to such Interest Period, equal to (a) the London
Interbank Offered Rate, as published by Reuters (or other commercially available source
designated by Agent); or (b) if London Interbank Offered Rate is unavailable for any reason, the
interest rate at which Dollar deposits in the approximate amount of the LIBOR Loan would be
offered by Agent’s London branch to major banks in the London interbank Eurodollar market. If
the Board of Governors imposes a Reserve Percentage with respect to LIBOR deposits, then
LIBOR shall be the foregoing rate, divided by 1 minus the Reserve Percentage.
LIBOR Loan: each set of LIBOR Revolver Loans having a common length and
commencement of Interest Period.
LIBOR Revolver Loan: a Revolver Loan that bears interest based on LIBOR.
License: any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or disposition
of Collateral, any use of Property or any other conduct of its business.
Licensor: any Person from whom an Obligor obtains the right to use any Intellectual
Property.
Lien: any Person’s interest in Property securing an obligation owed to, or a claim by,
such Person, including any lien, security interest, pledge, hypothecation, trust, reservation,
encroachment, easement, right-of-way, covenant, condition, restriction, leases, or other title
exception or encumbrance.
Lien Waiver: an agreement, in form and substance satisfactory to Agent, by which
(a) for any material Collateral located on leased premises, the lessor waives or subordinates any
Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and
remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any
Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder,
such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any
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Documents in its possession relating to the Collateral as agent for Agent, and agrees to deliver
the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or
bailee, such Person acknowledges Agent’s Lien, waives or subordinates any Lien it may have on
the Collateral, and agrees to deliver the Collateral to Agent upon request; and (d) for any
Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Agent the
right, vis-à-vis such Licensor, to enforce Agent’s Liens with respect to the Collateral, including
the right to dispose of it with the benefit of the Intellectual Property, whether or not a default
exists under any applicable License.
Loan: a Revolver Loan.
Loan Documents: this Agreement, Other Agreements and Security Documents.
Loan Year: each 12 month period commencing on the Closing Date and on each
anniversary of the Closing Date.
Machinery: with respect to each Borrower, the bulldozers, trailers, haul trucks, loaders,
excavators, earth moving Equipment and related wheeled and/or tracked Equipment (other than
Trucks) owned by such Borrower.
Machinery Appraisal Date: each date on which the Agent receives an Appraisal
calculating the Net Orderly Liquidation Value of all Eligible Machinery.
Machinery Formula Amount: the sum of (a) 85% of the Net Orderly Liquidation Value of
Eligible Machinery as of the latest Machinery Appraisal Date, minus (b) 85% of the Net Orderly
Liquidation Value of Eligible Machinery that have been sold since the latest Machinery
Appraisal Date, minus (c) 85% of the Depreciation Amount applicable to Eligible Machinery.
Margin Stock: as defined in Regulation U of the Board of Governors.
Material Adverse Effect: the effect of any event or circumstance that, taken in
conjunction with other events or circumstances, (a) has a material adverse effect on the business,
operations, Properties, or condition (financial or otherwise) of the Obligors and the Subsidiaries,
taken as a whole, on the value of any material Collateral, on the enforceability of any Loan
Documents, or on the validity or priority of Agent’s Liens on any material portion of the
Collateral; (b) creates a material impairment on the ability of an Obligor to perform its
obligations under the Loan Documents, including repayment of any Obligations; or (c) has a
material adverse effect on the ability of Agent or any Lender to enforce or collect the Obligations
or to realize upon any material portion of the Collateral.
Material Contract: any agreement or arrangement to which an Obligor or Subsidiary is
party (other than the Loan Documents) (a) for which breach, termination, nonperformance or
failure to renew could reasonably be expected to have a Material Adverse Effect; (b) that relates
to the Senior Notes or any Permitted Secured Debt; (c) that relates to Subordinated Debt; or (d)
that relates to Debt in an aggregate amount of $7,500,000 or more.
Moody’s: ▇▇▇▇▇’▇ Investors Service, Inc., and its successors.
Multiemployer Plan: any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Obligor, Subsidiary or ERISA Affiliate makes or is obligated
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to make contributions, or during the preceding five plan years, has made or been obligated to
make contributions with respect to which an Obligor or Subsidiary could incur liability.
Net Capital Expenditures: the result, determined on a consolidated basis for US Concrete
and its Subsidiaries for the most recently ended trailing twelve month period, without
duplication, of: (a) the sum of all liabilities incurred or expenditures made by an Obligor or
Subsidiary for the acquisition of fixed assets, or any improvements, replacements, substitutions
or additions thereto with a useful life of more than one year, excluding, without duplication, (i)
those financed with Borrowed Money other than Revolver Loans, (ii) any trade-in allowances,
(iii) expenditures of insurance proceeds to acquire or repair any asset, (iv) leasehold
improvement expenditures for which an Obligor or a Subsidiary is reimbursed by the lessor,
sublessor or sublessee, and (v) consideration paid for Permitted Acquisitions; minus (b) the
aggregate amount of cash and Cash Equivalents received in connection with Asset Dispositions
in the ordinary course of business (which for the avoidance of doubt shall not include the
disposition of any Subsidiary, business division or business unit), excluding, without duplication,
(i) any cash proceeds of any such Asset Disposition that are escrowed in accordance with the
provisions of any document relating to Debt and (ii) any cash proceeds of any such Asset
Disposition used to retire Debt other than the Obligations.
Net Income: for any period the consolidated net income (or loss) of US Concrete and its
Subsidiaries determined on a consolidated basis in accordance with GAAP (for the avoidance of
doubt, with respect to any Subsidiary that is not a wholly-owned Subsidiary, the net income of
such Subsidiary shall be accounted for under the proportional consolidation method of
accounting); provided that there shall be excluded (without duplication) (a) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with US Concrete or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary) in which US Concrete or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually received by US Concrete
or such Subsidiary in the form of dividends or similar distributions, (c) the undistributed earnings
of any Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of any contractual
obligation (other than under any Loan Document) or Applicable Law applicable to such
Subsidiary, and (d) the non-cash income (or non-cash losses) of any Person attributable to
discontinued operations.
Net Orderly Liquidation Value: the net orderly liquidation value of Trucks, Inventory or
Machinery, as the case may be, expected to be realized at an orderly, negotiated sale held within
a reasonable period of time, net of all liquidation expenses, as determined from the most recent
Appraisal of Borrowers’ Inventory, Trucks or Machinery, as applicable, performed by an
appraiser and on terms satisfactory to Agent in its Permitted Discretion.
Net Proceeds: with respect to an Asset Disposition, proceeds (including, when received,
any deferred or escrowed payments) received by an Obligor or a Subsidiary in cash from such
disposition, net of (a) reasonable and customary costs and expenses actually incurred in
connection therewith, including legal fees and sales commissions; (b) amounts applied to
repayment of Debt secured by a Permitted Lien (other than a Lien contractually subordinated to
Agent’s Lien) on Collateral sold (or applied to fund a mandatory cash collateral or escrow
account in respect of such Debt to the extent such repayment or cash collateral or escrow account
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funding is required in connection with such sale); (c) transfer or similar taxes; and (d) reserves
for indemnities, taxes and purchase price adjustments, until such reserves are no longer needed.
NOLV Percentage: (i) the Net Orderly Liquidation Value of Inventory, divided by
(ii) the Value of Inventory, expressed as a percentage, as determined from the most recent
Appraisal of Borrower’s Inventory.
Notice of Borrowing: a Notice of Borrowing to be provided by Borrower Agent to
request a Borrowing of Revolver Loans, in form satisfactory to Agent.
Notice of Conversion/Continuation: a Notice of Conversion/Continuation to be provided
by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in
form satisfactory to Agent.
Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC Obligations
and other obligations of Obligors with respect to Letters of Credit, (c) interest, expenses, fees,
indemnification obligations, Extraordinary Expenses and other amounts payable by Obligors
under Loan Documents, (d) Secured Bank Product Obligations, and (e) other Debts, obligations
and liabilities of any kind owing by Obligors pursuant to the Loan Documents, whether now
existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in
any Insolvency Proceeding, whether arising from an extension of credit, issuance of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect,
absolute or contingent, due or to become due, primary or secondary, or joint or several; provided,
that Obligations of an Obligor shall not include its Excluded Swap Obligations.
Obligor: each Borrower, Guarantor, or other Person that is liable for payment of any
Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations.
OFAC: Office of Foreign Assets Control of the U.S. Treasury Department.
Ordinary Course of Business: the ordinary course of business of any Obligor or
Subsidiary, consistent with past practices or modifications to such practices consistent with the
practices of similarly situated Persons in the same industry of established reputation, and
undertaken in good faith.
Organic Documents: with respect to any Person, its charter, certificate or articles of
incorporation, bylaws, articles of organization, limited liability agreement, operating agreement,
members agreement, shareholders agreement, partnership agreement, certificate of partnership,
certificate of formation, voting trust agreement, or similar agreement or instrument governing the
formation or operation of such Person.
OSHA: the Occupational Safety and Hazard Act of 1970.
Other Agreement: each LC Document, fee letter, Lien Waiver, Intercreditor Agreement,
Borrowing Base Certificate, Compliance Certificate, Borrower Materials, or other note,
document, instrument or agreement (other than this Agreement or a Security Document) now or
hereafter delivered by an Obligor or other Person to Agent or a Lender in connection with any
transactions relating hereto.
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Other Taxes: all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.
Overadvance: as defined in Section 2.1.5.
Overadvance Loan: a Base Rate Revolver Loan made when an Overadvance exists or is
caused by the funding thereof.
Participant: as defined in Section 13.2.1.
Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(2001).
Payment Item: each check, draft or other item of payment payable to a Borrower,
including those constituting proceeds of any Collateral.
PBGC: the Pension Benefit Guaranty Corporation.
Pension Plan: any employee pension benefit plan (as defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by any Obligor, Subsidiary or ERISA Affiliate or to which the Obligor, Subsidiary or
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the preceding five plan years.
Permitted Acquisition: any Acquisition as long as (a) no Default or Event of Default
exists or is caused thereby; (b) the Acquisition is consensual; (c) the assets, business or Person
being acquired is useful or engaged in the business of Borrowers and Subsidiaries, or a business
that is similar, related, incidental, complementary or corollary thereto or a reasonable extension
thereof; (d) in the case of an Acquisition in which the purchase price exceeds $20,000,000, other
than as specified in the last sentence of the definition of “Borrowing Base,” prior to inclusion of
the Accounts, Inventory, Trucks and Machinery acquired in connection with such Acquisition in
the determination of the Borrowing Base, the Agent shall have conducted an Appraisal of such
Inventory and, if required by the Agent, of such Trucks and Machinery, and Agent shall have
conducted an audit and field examination of such Accounts, in each case to Agent’s satisfaction,
Agent shall have implemented any applicable reserves in accordance with the provisions of the
Loan Documents, and all appropriate lien filings and collateral documentation have been duly
completed, executed and delivered to the Agent; (e) no Obligor shall, as a result of or in
connection with any such Acquisition, assume or incur any direct or contingent liabilities
(whether relating to environmental, tax, litigation, or other matters) that could reasonably be
expected to have a Material Adverse Effect; (f) if such Acquisition is an Acquisition of the
Equity Interests of a Person, such Acquisition (i) is structured so that the acquired Person shall
become a wholly-owned subsidiary of a Borrower or a Guarantor (other than (x) non-voting
Equity Interests of such subsidiary that are issued to the seller or the management thereof, (y)
nominal Equity Interests of a foreign subsidiary to satisfy the requirements of local law in such
foreign jurisdiction or (z) Equity Interests of a non-wholly owned Subsidiary of such acquired
Person that is in existence at the time of such Permitted Acquisition and have not been issued in
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contemplation of such Acquisition or such Person becoming a Subsidiary) pursuant to the terms
of this Agreement, and (ii) will not result in any violation of Regulation U; (g) no Debt or Liens
are incurred, assumed or result from the Acquisition, except Debt permitted under Section 10.2.1
and Liens permitted under Section 10.2.2; (h) either one of the following conditions are satisfied:
(i)(A) Availability determined on a pro forma basis immediately before and after giving effect to
the Acquisition is greater than or equal to the greater of (1) $31,250,000 or (2) the lesser of
twelve and one-half percent (12.5%) of (I) the Borrowing Base or (II) the aggregate amount of
Revolver Commitments and (B) the Fixed Charge Coverage Ratio, determined on a pro forma
basis immediately after giving effect to the Acquisition for the most recent trailing twelve month
period for which financial statements were, or were required to be, delivered hereunder, is not
less than 1.0 to 1.0, whether or not a FCCR Trigger Period exists or (ii) Availability determined
on a pro forma basis immediately before and after giving effect to the Acquisition is greater than
or equal to the greater of (A) $43,750,000 or (B) the lesser of seventeen and one-half percent
(17.5%) of (1) the Borrowing Base or (2) the aggregate amount of Revolver Commitments; and
(i) in the case of an Acquisition in which the purchase price exceeds $10,000,000, Borrowers
deliver to Agent, at least 10 (or such shorter period as agreed to by the Agent at its sole option
but in no case shorter than 5) Business Days prior to the Acquisition, current drafts of all
material agreements relating thereto (and subsequent thereto any changes thereto) and a
certificate, in form and substance satisfactory to Agent, stating that the Acquisition is a
“Permitted Acquisition” and demonstrating compliance with the foregoing requirements;
provided, upon the occurrence of a Revolver Commitments Increase Event, the $31,250,000
amount referenced in subclause (i)(A) of clause (h) above and the $43,750,000 amount
referenced in subclause (ii) of clause (h) above (or, in each case, such amounts as increased
pursuant to this proviso after a Revolver Commitments Increase Event), shall automatically,
without any further action or documentation required, increase by the same percentage amount as
the Revolver Commitments upon such Revolver Commitments Increase Event, such that, by way
of example, if the Revolver Commitments increase by twenty percent (20%) upon the Revolver
Commitments Increase Event, then the $31,250,000 amount and $43,750,000 amount herein
referenced (or such amounts as increased pursuant to this proviso after a Revolver Commitments
Increase Event) shall increase by twenty percent (20%).
Permitted Asset Disposition: as long as no Default or Event of Default exists and all Net
Proceeds are remitted to Agent to the extent required by Section 5.2 hereof or any other
provision of any other Loan Document, any Asset Disposition that is (a) a sale of Inventory in
the Ordinary Course of Business; (b) a disposition of Property that, in the aggregate during any
12-month period, has a fair market or book value (whichever is more) of $50,000,000 or less
(provided that, if any such Property disposed of pursuant to this clause (b) is Property that was
reflected on the Borrowing Base Certificate most recently delivered pursuant to Section 8.1, then
the Borrower shall promptly thereafter deliver an updated Borrowing Base Certificate reflecting
and giving effect to such disposition); (c) a disposition of Inventory that is obsolete,
unmerchantable or otherwise unsalable in the Ordinary Course of Business; (d) the termination
of any lease of real or personal Property that is not necessary for the Ordinary Course of
Business, could not reasonably be expected to have a Material Adverse Effect and does not result
from an Obligor’s default; (e) a disposition of non-core assets acquired in a Permitted
Acquisition; provided such disposition shall be made for fair market value if and only if the fair
market value of the non-core assets subject to such disposition exceeds $750,000; (f) a sale,
transfer or disposition of an account receivable in connection with the compromise, settlement or
collection thereof in the Ordinary Course of Business and in accordance with regular collection
procedures; (g) a disposition of cash or Cash Equivalents; (h) a sale, transfer or disposition of
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Real Estate that is no longer necessary in or useful to the business of US Concrete or any of its
Subsidiaries in the Ordinary Course of Business; (i) a disposition resulting from any casualty or
other insured damage to, or any taking under power of eminent domain or by condemnation or
similar proceeding of, any Property of US Concrete or any Subsidiary; (j) a true lease or sublease
of Real Estate in the Ordinary Course of Business; (k) a lease (as lessee or lessor), sublease, non-
exclusive license (as licensee or licensor) or sublicense of real or personal property and a
termination of such lease or license, in each case, in the Ordinary Course of Business; (l) an
expiration or abandonment of Intellectual Property in the Ordinary Course of Business; or (m)
approved in writing by Agent and Required Lenders.
Permitted Consignment Inventory: as defined in Section 8.3.3.
Permitted Contingent Obligations: Contingent Obligations (a) arising from endorsements
of Payment Items for collection or deposit in the Ordinary Course of Business; (b) arising from
Hedging Agreements permitted hereunder; (c) existing on the Closing Date, and any extension or
renewal thereof that does not increase the amount of such Contingent Obligation when extended
or renewed; (d) incurred in the Ordinary Course of Business with respect to surety, appeal or
performance bonds, or other similar obligations; (e) arising from customary indemnification and
purchase price adjustment obligations in favor of purchasers or sellers in connection with
dispositions or acquisitions of Property permitted hereunder; (f) arising under the Loan
Documents; or (g) in an aggregate amount of $1,000,000 or less at any time.
Permitted Discretion: a determination made in the exercise, in good faith, of reasonable
business judgment (from the perspective of a secured, asset-based lender).
Permitted Lien: as defined in Section 10.2.2.
Permitted Purchase Money Debt: Purchase Money Debt of Obligors and Subsidiaries
that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount
outstanding at any one time does not exceed the greater of $60,000,000 or 20% of Consolidated
Net Tangible Assets.
Permitted Secured Debt: has the meaning set forth in clause (t) of Section 10.2.1.
Person: any individual, corporation, limited liability company, partnership, joint venture,
association, trust, unincorporated organization, Governmental Authority or other entity.
Plan: any employee benefit plan (as defined in Section 3(3) of ERISA) established and
currently maintained by an Obligor or, with respect to any such plan that is subject to Section
412 of the Code or Title IV of ERISA, an ERISA Affiliate.
Platform: as defined in Section 15.3.3.
Prepayment Conditions: with respect to any payment pursuant to clause (iii) of Section
10.2.7, the following conditions: (a) no Default or Event of Default exists and is continuing or
would result on a pro forma basis immediately after giving effect to such payment; and (b) either
one of the following conditions: (i)(A) Availability (1) for each of the thirty (30) days preceding
the date of such prepayment and (2) as of the date of such payment after giving effect to such
payment is greater than or equal to the greater of (I) $37,500,000 or (II) the lesser of fifteen
percent (15%) of (a) the Borrowing Base or (b) the aggregate amount of Revolver Commitments
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and (B) the Fixed Charge Coverage Ratio, determined on a pro forma basis immediately after
giving effect to such payment for the most recent trailing twelve month period for which
financial statements were, or were required to be, delivered hereunder, is not less than 1.0 to 1.0
or (ii) Availability (A) for each of the thirty (30) days preceding the date of such prepayment and
(B) as of the date of such payment after giving effect to such payment is greater than or equal to
the greater of (1) $50,000,000 or (2) the lesser of twenty percent (20%) of (I) the Borrowing
Base or (II) the aggregate amount of Revolver Commitments; provided, upon the occurrence of a
Revolver Commitments Increase Event, the $37,500,000 amount referenced in subclause (i)(A)
of clause (b) above and the $50,000,000 amount referenced in subclause (ii) of clause (b) above
(or, in each case, such amounts as increased pursuant to this proviso after a Revolver
Commitments Increase Event), shall automatically, without any further action or documentation
required, increase by the same percentage amount as the Revolver Commitments upon such
Revolver Commitments Increase Event, such that, by way of example, if the Revolver
Commitments increase by twenty percent (20%) upon the Revolver Commitments Increase
Event, then the $37,500,000 amount and the $50,000,000 amount herein referenced (or such
amounts as increased pursuant to this proviso after a Revolver Commitments Increase Event)
shall increase by twenty percent (20%).
Prime Rate: the rate of interest announced by Bank of America from time to time as its
prime rate. Such rate is set by Bank of America on the basis of various factors, including its
costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above or below such rate. Any
change in such rate publicly announced by Bank of America shall take effect at the opening of
business on the day specified in the announcement.
Pro Rata: with respect to any Lender, a percentage (rounded to the ninth decimal place)
determined (a) while Revolver Commitments are outstanding, by dividing the amount of such
Lender’s Revolver Commitment by the aggregate amount of all Revolver Commitments; and
(b) at any other time, by dividing the amount of such Lender’s Loans and LC Obligations by the
aggregate amount of all outstanding Loans and LC Obligations.
Properly Contested: with respect to any obligation of an Obligor, (a) the obligation is
subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the
obligation is being properly contested in good faith by appropriate proceedings promptly
instituted and diligently pursued; (c) appropriate reserves have been established in accordance
with GAAP; (d) non-payment will not have a Material Adverse Effect and will not result in
forfeiture or sale of any Accounts, Inventory, Trucks or Machinery of the Obligor; (e) no Lien is
imposed on any Accounts, Inventory, Trucks or Machinery of the Obligor, unless bonded and
stayed to the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or
other order, such judgment or order is stayed pending appeal or other judicial review.
Property: any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.
Protective Advances: as defined in Section 2.1.6.
Purchase Money Debt: (a) Debt (other than the Obligations) for payment of any of the
purchase price of fixed assets; (b) Debt (other than the Obligations) incurred within ninety (90)
days before or after acquisition of any fixed assets, for the purpose of financing any of the
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purchase price thereof (or the cost of design, construction, installation or improvement of such
assets); and (c) any renewals, extensions or refinancings thereof (but excluding increases other
than the amount of accrued and unpaid interest thereon and fees, costs, expenses and premiums
incurred in connection therewith).
Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the
fixed assets acquired with such Debt (and improvements, repairs, additions, attachments and
accessions thereto, parts, replacements and substitutions therefor, and products and proceeds
thereof) and constituting a Capital Lease or a purchase money security interest under the UCC.
Qualified ECP: an Obligor with total assets exceeding $10,000,000, or that constitutes an
“eligible contract participant” under the Commodity Exchange Act and can cause another Person
to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of the Commodity
Exchange Act.
RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i).
Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any real
Property or any buildings, structures, parking areas or other improvements thereon.
Refinancing Conditions: the following conditions for Refinancing Debt:
(a) it is in an aggregate principal amount that does not exceed the principal amount of the
Debt being extended, renewed or refinanced (plus the amount of accrued and unpaid interest
thereon and fees, costs, expenses and premiums incurred in connection therewith); (b) it has a
final maturity date no sooner than, and a weighted average life no less than, the Debt being
extended, renewed, refinanced, replaced, refunded, exchanged or converted; (c) if applicable, it
is subordinated to the Obligations at least to the same extent as the Debt being extended,
renewed, refinanced, replaced, refunded, exchanged or converted; (d) to the extent such Debt
being extended, renewed, refinanced, replaced, refunded, exchanged or converted is secured by
all or any portion of the Collateral and/or subject to intercreditor arrangements for the benefit of
the Lenders, such Refinancing Debt is either (1) unsecured or (2) secured and, if secured, subject
to intercreditor arrangements on terms at least as favorable (including with respect to priority) to
the Lenders as those contained in the documentation governing the Debt being extended,
renewed, refinanced, replaced, refunded, exchanged or converted and, in the case of any
Refinancing Debt, if secured by all or any portion of the Collateral, in respect of Permitted
Secured Debt, (x) the respective Lien priorities in the Collateral in favor of Agent, for the benefit
of the Secured Parties, and in favor of the holders of such Refinancing Debt shall be the same as
provided in the Intercreditor Agreement (i.e., the scope of the ABL Priority Collateral and
priority of Agent’s Lien therein shall not change) or shall be more favorable to Agent and
Secured Parties, and either the Intercreditor Agreement as in effect at such time remains in effect
or satisfactory executed intercreditor documents between Agent and the holders of such
Refinancing Debt (or a trustee, agent or other representative on their behalf) shall have been
agreed to by Agent and (y) to the extent the Intercreditor Agreement is then in effect and
applicable to such Refinancing Debt, the ABL Cap Amount (as defined in the Intercreditor
Agreement) is equal to at least 110% of the aggregate Revolver Commitments at such time or is
eliminated or any cap contained in the relevant executed satisfactory intercreditor documentation
(if any) between the holders of such Refinancing Debt (or a trustee, agent or other representative
on their behalf) and the Agent as to the aggregate outstanding principal amount of Loans and LC
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Obligations as to which the first priority Lien of Agent, for the benefit of the Secured Parties, in
the Collateral shall have priority over the Lien of the holders of such Refinancing Debt, shall be
no less than 110% of the aggregate Revolver Commitments; (e) if such Debt being extended,
renewed, refinanced, replaced, refunded, exchanged or converted is unsecured, such Debt being
extended, renewed, refinanced, replaced, refunded, exchanged or converted is either unsecured
or, if secured, subject to Liens only to the extent expressly permitted under this Agreement; (f)
no additional Person is obligated on such Debt; (g) upon giving effect to it, no Default or Event
of Default exists; (h) in the case of Refinancing Debt in respect of the Senior Notes or any
Permitted Secured Debt, the Refinancing Debt shall not provide for or permit amortization or
similar scheduled principal payments in excess of 5% per annum prior to the Revolver
Termination Date; and (i) in the case of Refinancing Debt in respect of any Permitted Secured
Debt, such Refinancing Debt shall also satisfy each of the conditions for incurrence set forth in
Section 10.2.1(s).
Refinancing Debt: Borrowed Money that is the result of an extension, renewal,
refinancing, replacement, refunding, exchange or conversion of Debt incurred as permitted under
Section 10.2.1(b), (d), (f), (h), (q) or (s).
Reimbursement Date: as defined in Section 2.2.2(a).
Rent and Charges Reserve: a reserve established in Agent’s Permitted Discretion equal
to the aggregate of (a) all past due rent and other amounts owing by an Obligor to any landlord,
warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or other
Person who possesses any Collateral or could assert a Lien on any Collateral; and (b) a reserve at
least equal to three months’ rent and other charges that could be payable to any such Person (or
such other amount as determined by Agent in its Permitted Discretion), unless it has executed a
Lien Waiver.
Report: as defined in Section 12.2.3.
Reportable Event: any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.
Required Lenders: subject, in each case to Section 4.2, (a) if there are two or less
Lenders, all Lenders, and (b) if there are two or more Lenders, at least two Lenders, which
together have (i) Revolver Commitments in excess of 50% of the aggregate Revolver
Commitments, and (ii) if the Revolver Commitments have terminated, Loans in excess of 50% of
all outstanding Loans; provided, however, that, in each case the Commitments and Loans of any
Defaulting Lender shall be excluded from such calculation. For purposes of determining the
number of Lenders under this definition, a Lender and any other Lenders that are Affiliates or
Approved Funds of such Lender shall be counted as a single Lender.
Required Reserve Notice: (a) so long as no Event of Default has occurred and is
continuing, at least three days’ advance notice to Borrower Agent, (b) if an Event of Default has
occurred and is continuing, one days’ advance notice to Borrower Agent; and (c) if determined to
be appropriate by the Agent in its Permitted Discretion to protect the interests of the Lenders, no
advance notice to Borrower Agent.
Reserve Percentage: the reserve percentage (expressed as a decimal, rounded if
necessary, to the nearest 1/100th of 1%) applicable to member banks under regulations issued by
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the Board of Governors for determining the maximum reserve requirement for Eurocurrency
liabilities.
Restricted Investment: any Investment by an Obligor or Subsidiary, other than
(a) Investments in Subsidiaries existing on the Closing Date and Subsidiaries (other than Foreign
Subsidiaries) established thereafter in accordance with Section 10.1.9; provided, any Investment
hereafter in a non-wholly owned Subsidiary that is not an Obligor hereunder may be made only
so long as all of the Investment Conditions are satisfied with respect thereto; (b) Cash
Equivalents that are subject to Agent’s Lien and control, pursuant to documentation in form and
substance satisfactory to Agent; (c) loans and advances permitted under Section 10.2.6;
(d) Permitted Acquisitions; (e) Investments of any Person at the time such Person becomes a
Subsidiary of a Borrower or consolidates or merges with a Borrower (including in connection
with a Permitted Acquisition) as long as such Investments were not made in contemplation of
such Person becoming a Subsidiary of such Borrower or of such merger or consolidation;
(f) Investments in existence on the date of this Agreement and described in Schedule 1.1(b) and
any extensions, replacements or renewals thereof which do not result in an increase in the
amount thereof; (g) notes payable, or stock or other securities issued by Account Debtors to an
Obligor pursuant to negotiated agreements with respect to settlement of such Account Debtor’s
Accounts in the Ordinary Course of Business; (h) Investments received in connection with the
dispositions of assets permitted by Section 10.2.5; (i) Investments constituting deposits
described in Section 10.2.2(e); (j) ▇▇▇▇▇▇▇ money required in connection with and to the extent
permitted by Permitted Acquisitions; and (k) other Investments not to exceed in the aggregate
$15,000,000 at any time outstanding.
Restrictive Agreement: an agreement (other than a Loan Document) that conditions or
restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay Borrowed
Money, to grant Liens on any assets, to declare or make Distributions, to modify, extend or
renew any agreement evidencing Borrowed Money, or to repay any intercompany Debt.
Revolver Commitment: for any Lender, its obligation to make Revolver Loans and to
participate in LC Obligations up to the maximum principal amount shown on Schedule 1.1, as
hereafter modified pursuant to an Assignment and Acceptance to which it is a party. “Revolver
Commitments” means the aggregate amount of such commitments of all Lenders.
Revolver Commitments Increase Event: as defined in Section 2.1.7.
Revolver Loan: a loan made pursuant to Section 2.1, and any Swingline Loan,
Overadvance Loan or Protective Advance.
Revolver Termination Date: five (5) years from the Closing Date.
Royalties: all royalties, fees, expense reimbursement and other amounts payable by an
Obligor under a License.
S&P: Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC
business, and its successors.
Sanction: any international economic sanction administered or enforced by the United
States Government (including OFAC), the United Nations Security Council, the European
Union, Her Majesty’s Treasury or other relevant sanctions authority.
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Secured Bank Product Obligations: Debt, obligations and other liabilities with respect to
Bank Products owing by an Obligor or Subsidiary to a Secured Bank Product Provider; provided,
that Secured Bank Product Obligations of an Obligor shall not include its Excluded Swap
Obligations.
Secured Bank Product Provider: (a) Bank of America or any of its Affiliates; and (b) any
other Lender or Affiliate of a Lender that is providing a Bank Product, provided such provider
delivers written notice to Agent, in form and substance satisfactory to Agent, within 10 days
following the later of the Closing Date or creation of the Bank Product, (i) describing the Bank
Product and setting forth the maximum amount to be secured by the Collateral and the
methodology to be used in calculating such amount, and (ii) agreeing to be bound by Section
12.13.
Secured Parties: Agent, Issuing Bank, Lenders and Secured Bank Product Providers.
Securities Account Control Agreements: the securities account control agreements
(whether in the form of an agreement, notice and acknowledgment or like instrument) to be
executed by each institution maintaining a Securities Account for an Obligor, in favor of Agent,
as security for the Obligations.
Security Documents: the Guaranties, IP Assignments, Deposit Account Control
Agreements, Securities Account Control Agreements, Commodities Account Control
Agreements and all other documents, instruments and agreements now or hereafter securing (or
given with the intent to secure) any Obligations.
Senior Notes: the $600,000,000 in principal amount of 6.375% senior notes issued on
June 7, 2016 and January 9, 2017, as the same may be amended, replaced, renewed, refunded,
refinanced, exchanged, supplemented or otherwise modified from time to time, and including
increases from time to time in the principal amount thereof (including in conjunction with
refinancings) to the extent such amounts are in compliance with the provisions of the definition
of the term “Refinancing Conditions”.
Senior Notes Agreement: that certain Indenture by and among the Senior Notes Trustee
and the Obligors party thereto relating to the Senior Notes, as the same may be amended,
replaced, renewed, refunded, refinanced, exchanged, supplemented or otherwise modified from
time to time, and including increases from time to time in the principal amount thereof (including
in conjunction with refinancings) to the extent such amounts are in compliance with the
provisions of the definition of the term “Refinancing Conditions.
Senior Notes Documents: the Senior Notes Agreement and the documents and
supplements executed in connection therewith.
Senior Notes Trustee: U.S. Bank National Association in its capacity as trustee for the
holders of the Senior Notes (or Refinancing Debt in respect thereof to the extent such
Refinancing Debt is in compliance with the provisions of the definition of the term “Refinancing
Conditions”) and its successors and permitted assigns in such capacity.
Senior Officer: the chairman of the board, president, chief executive officer, chief
financial officer, or vice president of finance, controller, treasurer or similar officer of a
Borrower or, if the context requires, an Obligor.
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Senior Secured Leverage Ratio as of the end of the applicable period, the ratio of (a) the
aggregate amount of Debt (excluding any reimbursement obligations with respect to letters of
credit not drawn) of the Obligors that is secured by Liens on the Property of the Obligors as of
the end of such period to (b) EBITDA for such period.
Settlement Report: a report summarizing Revolver Loans and participations in LC
Obligations outstanding as of a given settlement date, allocated to Lenders on a Pro Rata basis in
accordance with their Revolver Commitments.
Solvent: as to any Person, such Person (a) owns Property whose fair salable value is
greater than the amount required to pay all of its debts (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as
defined below) is greater than the probable total liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of such Person as they become absolute and matured;
(c) is able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for
its business and is sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section
101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise)
any obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any
conveyance in connection therewith, with actual intent to hinder, delay or defraud either present
or future creditors of such Person or any of its Affiliates. “Fair salable value” means the amount
that could be obtained for assets within a reasonable time, either through collection or through
sale under ordinary selling conditions by a capable and diligent seller to an interested buyer who
is willing (but under no compulsion) to purchase.
Specified Obligor: an Obligor that is not then an “eligible contract participant” under the
Commodity Exchange Act (determined prior to giving effect to Section 5.10).
Spot Rate: on any day with respect to any Alternate Currency, the rate at which such
currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m. (Dallas, Texas
time) on such day on the Reuters World Currency Page for such currency or such other publicly
available service for displaying exchange rates as may be agreed upon by Agent and the
Borrower Agent, or, in the absence of such agreement, such Spot Rate shall instead be the
arithmetic average of the spot rates of exchange of Agent in the market where its foreign
currency exchange operations in respect of such currency are then being conducted, at or about
10:00 a.m. (Dallas, Texas time) on such date for the purchase of Dollars for delivery two
Business Days later. Once the Spot Rate is revalued by Agent or the Issuing Bank, as applicable,
it will advise the Borrower Agent of the new Spot Rate.
Stock Redemption Conditions: with respect to any Distribution pursuant to clause (viii)
of Section 10.2.3(a), the following conditions: (a) no Default or Event of Default exists and is
continuing or would result on a pro forma basis immediately after giving effect to such
Distribution; (b) such stock redemption is paid with cash on hand of US Concrete; (c) the
aggregate consideration of all stock redemptions permitted under clause (viii) of Section
10.2.3(a) shall not be greater than $50,000,000; and (d) there shall be no Revolver Loans
outstanding immediately prior to and after giving effect to such Distribution.
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Subordinated Debt: Debt incurred by a Borrower that is expressly subordinate and junior
in right of payment to Full Payment of all Obligations, and is on terms (including maturity,
interest, fees, repayment, covenants and subordination) satisfactory to Agent.
Subsidiary: shall mean, (i) as to any Obligor, any Person in which more than fifty
percent (50%) of all voting securities or Equity Interests is owned directly or indirectly by
such Obligor or one or more of its Subsidiaries, and (ii) as to any other Person, any Person in
which more than fifty percent (50%) of all voting securities or Equity Interests is owned directly
or indirectly by such Person or by one or more of such Person’s Subsidiaries.
Swap Obligation: with respect to any Obligor, any obligation to pay or perform under
any agreement, contract or transaction that constitutes a “swap” within the meaning of Section
1a(47) of the Commodity Exchange Act.
Swingline Loan: any Borrowing of Base Rate Revolver Loans funded with Agent’s
funds, until such Borrowing is settled among Lenders or repaid by Borrowers.
Tax Amount: the amount established by Agent from time to time in its Permitted
Discretion for the amount of all the Borrowers’ accrued and unpaid sales, use, fuel and excise
taxes.
Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Transferee: any actual or potential Eligible Assignee, Participant or other Person
acquiring an interest in any Obligations.
Trigger Period: the period (a) commencing on the earlier of the day that an Event of
Default occurs, or the day Availability is less than the greater of (i) $31,250,000 or (ii) the lesser
of twelve and one-half percent (12.5%) of (A) the Borrowing Base or (B) the aggregate amount
of Revolver Commitments, and (b) continuing until, the first date on which, during the preceding
thirty (30) consecutive days, no Event of Default has existed and Availability has been greater
than the greater of (i) $31,250,000 or (ii) the lesser of twelve and one-half percent (12.5%) of (A)
the Borrowing Base or (B) the aggregate amount of Revolver Commitments; provided, upon the
occurrence of a Revolver Commitments Increase Event, the $31,250,000 amount referenced in
subclause (i) of clause (a) above and subclause (i) of clause (b) above (or such amounts as
increased pursuant to this proviso after a Revolver Commitments Increase Event), shall
automatically, without any further action or documentation required, increase by the same
percentage amount as the Revolver Commitments upon such Revolver Commitments Increase
Event, such that, by way of example, if the Revolver Commitments increase by twenty percent
(20%) upon the Revolver Commitments Increase Event, then the $31,250,000 amount herein
referenced (or such amount as increased pursuant to this proviso after a Revolver Commitments
Increase Event) shall increase by twenty percent (20%).
Truck Appraisal Date: each date on which the Agent receives an Appraisal calculating
the Net Orderly Liquidation Value of all Eligible Trucks.
Truck Formula Amount: the sum of (a) 85% of the Net Orderly Liquidation Value of
Eligible Trucks as of the latest Truck Appraisal Date, plus (b) 80% of the cost of Eligible Trucks
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(net of any discounts, rebates or credits and excluding any fees, expenses, sales taxes, other taxes
and delivery charges) acquired since the latest Truck Appraisal Date minus (c) 85% of the Net
Orderly Liquidation Value of Eligible Trucks that have been sold since the latest Truck
Appraisal Date, minus (d) 85% of the Depreciation Amount applicable to Eligible Trucks.
Trucks: with respect to each Borrower, the ready-mix concrete trucks and the mixing
drums affixed thereto owned by such Borrower.
Type: any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the same
interest option and, in the case of LIBOR Loans, the same Interest Period.
UCC: the Uniform Commercial Code as in effect in the State of Texas or, when the laws
of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code of such jurisdiction.
Unfunded Pension Liability: the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined
in accordance with the assumptions used for funding the Pension Plan pursuant to the Code,
ERISA or the Pension Protection Act of 2006 for the applicable plan year.
Unused Line Fee Rate: a per annum rate equal to (i) 0.375% if the sum of the average
daily balance of Revolver Loans and stated amount of Letters of Credit for the most recent
month is less than the amount equal to 50% of the aggregate Revolver Commitments or (ii)
0.250% if the sum of the average daily balance of Revolver Loans and stated amount of Letters
of Credit for the most recent month is greater than or equal to the amount equal to 50% of the
aggregate Revolver Commitments.
Upstream Payment: a Distribution by a Subsidiary of an Obligor to such Obligor.
Value: (a) for Inventory, its value determined on the basis of the lower of cost or market,
calculated on a first-in, first-out basis or average cost basis consistent with the most recent
audited financial statements of the Borrowers, and excluding any portion of cost attributable to
intercompany profit among Borrowers and their Affiliates; (b) for an Account, its face amount,
net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or
Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account
Debtor or any other Person; and (c) for a Truck or a Machinery, its value determined on the basis
of fair market or book value (whichever is more).
Write-Down and Conversion Powers: with respect to any EEA Resolution Authority, the
write-down and conversion powers of such EEA Resolution Authority from time to time under
the Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule.
1.2. Accounting Terms. Under the Loan Documents (except as otherwise specified
herein), all accounting terms shall be interpreted, all accounting determinations shall be made,
and all financial statements shall be prepared, in accordance with generally accepted accounting
principles in effect in the United States applied on a basis consistent with the most recent audited
financial statements of Borrowers delivered to Agent before the Closing Date and using the same
inventory valuation method as used in such financial statements, except for any change required
or permitted by such generally accepted accounting principles if Borrowers’ certified public
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accountants concur in such change, the change is disclosed to Agent, and Sections 10.2 and 10.3
are amended in a manner satisfactory to Required Lenders and Borrower Agent to take into
account the effects of the change. For purposes of determining any “extraordinary” item,
extraordinary shall be determined in accordance with GAAP as in effect prior to Accounting
Standards Update No. 2015-01
1.3. Uniform Commercial Code. As used herein, the following terms are defined in
accordance with the UCC in effect in the State of Texas from time to time: “As-Extracted
Collateral,” “Chattel Paper,” “Commercial Tort Claim,” “Commodity Account,” “Deposit
Account,” “Document,” “Equipment,” “Fixtures,” “General Intangibles,” “Goods,”
“Instrument,” “Investment Property,” “Letter-of-Credit Right” “Securities Account” and
“Supporting Obligation.”
1.4. Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder”
and other words of similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In
the computation of periods of time from a specified date to a later specified date, “from” means
“from and including,” and “to” and “until” each mean “to but excluding.” The terms “including”
and “include” shall mean “including, without limitation” and, for purposes of each Loan
Document, the parties agree that the rule of ejusdem generis shall not be applicable to limit any
provision. Section titles appear as a matter of convenience only and shall not affect the
interpretation of any Loan Document. All references to (a) laws or statutes include all related
rules, regulations, interpretations, amendments and successor provisions; (b) any document,
instrument or agreement include any amendments, waivers and other modifications, extensions
or renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the
context otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean,
unless the context otherwise requires, exhibits and schedules attached hereto, which are hereby
incorporated by reference; (e) any Person include successors and assigns; (f) time of day mean
time of day at Agent’s notice address under Section 15.3.1; or (g) discretion of Agent, Issuing
Bank or any Lender mean the sole discretion of such Person exercised in good faith. All
references to Value, Borrowing Base components, Loans, Letters of Credit, Obligations and
other amounts herein shall be denominated in Dollars, unless expressly provided otherwise, and
(subject to Section 1.2) all determinations (including calculations of Borrowing Base and
financial covenants) made from time to time under the Loan Documents shall be made in light of
the circumstances existing at such time. Borrowing Base calculations shall be consistent with
historical methods of valuation and calculation, and otherwise satisfactory to Agent (and not
necessarily calculated in accordance with GAAP). Borrowers shall have the burden of
establishing any alleged negligence, misconduct or lack of good faith by Agent, Issuing Bank or
any Lender under any Loan Documents. No provision of any Loan Documents shall be
construed against any party by reason of such party having, or being deemed to have, drafted the
provision. A reference to Borrowers’ “knowledge” or similar concept means actual knowledge
of a Senior Officer, or knowledge that a Senior Officer would have obtained if he or she had
engaged in good faith and diligent performance of his or her duties, including reasonably specific
inquiries of employees or agents and a good faith attempt to ascertain the matter.
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SECTION 2. CREDIT FACILITIES
2.1. Revolver Commitment.
2.1.1. Revolver Loans. On the Closing Date, the “Revolver Loans” and
“Revolver Commitments” (each as defined in the Initial Loan Agreement) held by the Lenders
shall be deemed to be Revolver Loans and Revolver Commitments under this Agreement. Each
Lender hereby agrees, subject to its Revolver Commitment, on the terms set forth herein, to
make Revolver Loans to Borrowers from time to time through the Commitment Termination
Date. The Revolver Loans may be repaid and reborrowed as provided herein. In no event shall
Lenders have any obligation to honor a request for a Revolver Loan if the unpaid balance of
Revolver Loans outstanding at such time (including the requested Loan) would exceed the
Borrowing Base.
2.1.2. Revolver Notes. The Revolver Loans made by each Lender and interest
accruing thereon shall be evidenced by the records of Agent and such Lender. At the request of
any Lender, Borrowers shall deliver to such Lender a promissory note evidencing its Revolver
Loans.
2.1.3. Use of Proceeds. The proceeds of Revolver Loans shall be used by
Borrowers solely (a) to pay fees and transaction expenses associated with the closing of this
credit facility; (b) to pay Obligations in accordance with this Agreement; and (c) for lawful
corporate purposes of Borrowers, including working capital.
2.1.4. Voluntary Reduction or Termination of Revolver Commitments.
(a) The Revolver Commitments shall terminate on the Revolver Termination
Date, unless sooner terminated in accordance with this Agreement. Upon at least 5 Business
Days’ prior written notice to Agent, Borrowers may, at their option, terminate the Revolver
Commitments and this credit facility. Any notice of termination given by Borrowers shall be
irrevocable. On the termination date, Borrowers shall make Full Payment of all Obligations.
(b) Borrowers may permanently reduce the Revolver Commitments, on a Pro
Rata basis for each Lender, upon at least 5 Business Days’ prior written notice to Agent, which
notice shall specify the amount of the reduction and shall be irrevocable once given. Each
reduction (in the aggregate for all Lenders) shall be in a minimum amount of $5,000,000, or an
increment of $1,000,000 in excess thereof.
2.1.5. Overadvances. If the aggregate Revolver Loans exceed the Borrowing
Base (“Overadvance”) at any time, the excess amount shall be payable by Borrowers on demand
by Agent, but all such Revolver Loans shall nevertheless constitute Obligations secured by the
Collateral and entitled to all benefits of the Loan Documents. Agent may require Lenders to
honor requests for Overadvance Loans and to forbear from requiring Borrowers to cure an
Overadvance, either if (a) no other Event of Default is known to Agent, as long as (i) the
Overadvance does not continue for more than 30 consecutive days and (ii) the Overadvance is
not known by Agent to exceed $25,000,000, or (b) regardless of whether an Event of Default
exists, Agent discovers an Overadvance not previously known by it to exist, as long as from the
date of such discovery the Overadvance (i) is not increased by more than $2,500,000, and
(ii) does not continue for more than 30 consecutive days. In no event shall Overadvance Loans
be required that would cause the outstanding Revolver Loans and LC Obligations to exceed the
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aggregate Revolver Commitments. Any funding of an Overadvance Loan or sufferance of an
Overadvance shall not constitute a waiver by Agent or Lenders of the Event of Default caused
thereby. In no event shall any Borrower or other Obligor be deemed a beneficiary of this Section
nor authorized to enforce any of its terms.
2.1.6. Protective Advances. Agent shall be authorized, in its discretion, at any
time that any conditions in Section 6 are not satisfied to make Base Rate Revolver Loans
(“Protective Advances”) (a) up to an aggregate amount of $25,000,000 outstanding at any time,
if Agent deems such Loans necessary or desirable to preserve or protect Collateral, or to enhance
the collectability or repayment of Obligations, as long as such Loans do not cause the
outstanding Revolver Loans and LC Obligations to exceed the aggregate Revolver
Commitments; or (b) to pay any other amounts chargeable to Obligors under any Loan
Documents, including interest, costs, fees and expenses. Each Lender shall participate in each
Protective Advance on a Pro Rata basis. Required Lenders may at any time revoke Agent’s
authority to make further Protective Advances under clause (a) by written notice to Agent.
Absent such revocation, Agent’s determination that funding of a Protective Advance is
appropriate shall be conclusive.
2.1.7. Increase in Revolver Commitments. Borrowers may request an increase
in Revolver Commitments from time to time upon notice to Agent (a “Revolver Commitments
Increase Event”), as long as (i) the requested increase is in a minimum amount of $10,000,000
and is offered on the same terms as existing Revolver Commitments, except for a closing fee
specified by Agent, (ii) increases under this Section 2.1.7 after the Closing Date do not exceed
$150,000,000 in the aggregate and no more than three increases are made, (iii) no reduction in
Revolver Commitments pursuant to Section 2.1.4 has occurred prior to the requested increase,
and (iv) the requested increase does not cause (1) this Agreement to cease being an “ABL
Agreement” pursuant to any Intercreditor Agreement (if then in effect) or enjoy similar rights
and benefits under any intercreditor agreement (if any) relating to any Refinancing Debt
refinancing or refunding the Senior Notes or any Permitted Secured Debt, or (2) the Revolver
Commitments to cease being “Permitted Indebtedness” (or similar term) under the Senior Notes
Agreement, any Permitted Secured Debt or under any comparable agreement relating to any
Refinancing Debt in respect of the Senior Notes or any Permitted Secured Debt. Agent shall
promptly notify the Lenders of the requested increase and, within ten (10) Business Days
thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase
its Revolver Commitment. Any Lender not responding within such period shall be deemed to
have declined an increase. If Lenders fail to commit to the full requested increase, Eligible
Assignees may issue additional Revolver Commitments and become Lenders hereunder. Agent
may allocate, in consultation with Borrower Agent, the increased Revolver Commitments among
committing Lenders and, if necessary, Eligible Assignees. Provided the conditions set forth in
Section 6.2 are satisfied, total Revolver Commitments shall be increased by the requested
amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed
upon by Agent and Borrower Agent, but no later than 45 days following Borrowers’ increase
request. Agent, Obligors, and new and existing Lenders shall execute and deliver such
documents and agreements as Agent deems appropriate to evidence the increase in and
allocations of Revolver Commitments. On the effective date of an increase, all outstanding
Revolver Loans, LC Obligations and other exposures under the Revolver Commitments shall be
reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’
adjusted shares of such Revolver Commitments. In no event shall the provisions of this
Section 2.1.7 or any other provision of this Agreement or any other Loan Document be deemed
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to create any obligation on the part of any Lender to agree to any increase in the Revolver
Commitments and Borrowers agree that any such increase shall be at the sole option of each
Lender.
2.2. Letter of Credit Facility.
2.2.1. Issuance of Letters of Credit. Borrowers acknowledge and agree that, as
of the Closing Date, the “Letters of Credit” listed on Schedule 2.2.1 have been issued and are
outstanding under the Initial Loan Agreement. On the Closing Date, such “Letters of Credit”
automatically, and without any action on the part of any Person, shall be deemed to be Letters of
Credit issued hereunder for all purposes. Issuing Bank shall issue Letters of Credit from time to
time until 30 days prior to the Revolver Termination Date (or until the Commitment Termination
Date, if earlier), on the terms set forth herein, including the following:
(a) Each Borrower acknowledges that Issuing Bank’s issuance of any
Letter of Credit is conditioned upon Issuing Bank’s receipt of a LC Application with respect to
the requested Letter of Credit, as well as such other instruments and agreements as Issuing Bank
may customarily require for issuance of a letter of credit of similar type and amount. Issuing
Bank shall have no obligation to issue any Letter of Credit unless (i) Issuing Bank receives a LC
Request and LC Application at least three Business Days prior to the requested date of issuance;
(ii) each LC Condition is satisfied; and (iii) if a Defaulting Lender exists, such Lender or
Borrowers have entered into arrangements satisfactory to Agent and Issuing Bank to eliminate
any Fronting Exposure associated with such Lender. If, in sufficient time to act, Issuing Bank
receives written notice from Required Lenders that a LC Condition has not been satisfied,
Issuing Bank shall not issue the requested Letter of Credit. Prior to receipt of any such notice,
Issuing Bank shall not be deemed to have knowledge of any failure of LC Conditions.
(b) Letters of Credit may be requested by a Borrower to support
obligations incurred in the Ordinary Course of Business, or as otherwise approved by Agent.
The renewal or extension of any Letter of Credit shall be treated as the issuance of a new Letter
of Credit, except that delivery of a new LC Application shall be required at the discretion of
Issuing Bank.
(c) Borrowers assume all risks of the acts, omissions or misuses of any
Letter of Credit by the beneficiary. In connection with issuance of any Letter of Credit, none of
Agent, Issuing Bank or any Lender shall be responsible for the existence, character, quality,
quantity, condition, packing, value or delivery of any goods purported to be represented by any
Documents; any differences or variation in the character, quality, quantity, condition, packing,
value or delivery of any goods from that expressed in any Documents; the form, validity,
sufficiency, accuracy, genuineness or legal effect of any Documents or of any endorsements
thereon; the time, place, manner or order in which shipment of goods is made; partial or
incomplete shipment of, or failure to ship, any goods referred to in a Letter of Credit or
Documents; any deviation from instructions, delay, default or fraud by any shipper or other
Person in connection with any goods, shipment or delivery; any breach of contract between a
shipper or vendor and a Borrower; errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex, telecopy, e-mail, telephone or
otherwise; errors in interpretation of technical terms; the misapplication by a beneficiary of any
Letter of Credit or the proceeds thereof; or any consequences arising from causes beyond the
control of Issuing Bank, Agent or any Lender, including any act or omission of a Governmental
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Authority. The rights and remedies of Issuing Bank under the Loan Documents shall be
cumulative. Issuing Bank shall be fully subrogated to the rights and remedies of each
beneficiary whose claims against Borrowers are discharged with proceeds of any Letter of
Credit.
(d) In connection with its administration of and enforcement of rights
or remedies under any Letters of Credit or LC Documents, Issuing Bank shall be entitled to act,
and shall be fully protected in acting, upon any certification, documentation or communication in
whatever form believed by Issuing Bank, in good faith, to be genuine and correct and to have
been signed, sent or made by a proper Person. Issuing Bank may consult with and employ legal
counsel, accountants and other experts to advise it concerning its obligations, rights and
remedies, and shall be entitled to act upon, and shall be fully protected in any action taken in
good faith reliance upon, any advice given by such experts. Issuing Bank may employ agents
and attorneys-in-fact in connection with any matter relating to Letters of Credit or LC
Documents, and shall not be liable for the gross negligence or willful misconduct of agents and
attorneys-in-fact selected with reasonable care.
2.2.2. Reimbursement; Participations.
(a) If Issuing Bank honors any request for payment under a Letter of
Credit, Borrowers shall pay to Issuing Bank, on the same day (“Reimbursement Date”), the
amount paid by Issuing Bank under such Letter of Credit, together with interest at the interest
rate for Base Rate Revolver Loans from the Reimbursement Date until payment by Borrowers.
The obligation of Borrowers to reimburse Issuing Bank for any payment made under a Letter of
Credit shall be absolute, unconditional, irrevocable, and joint and several, and shall be paid
without regard to any lack of validity or enforceability of any Letter of Credit or the existence of
any claim, setoff, defense or other right that Borrowers may have at any time against the
beneficiary. Whether or not Borrower Agent submits a Notice of Borrowing, Borrowers shall be
deemed to have requested a Borrowing of Base Rate Revolver Loans in an amount necessary to
pay all amounts due Issuing Bank on any Reimbursement Date and each Lender agrees to fund
its Pro Rata share of such Borrowing whether or not the Commitments have terminated, an
Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied. It being
understood that in the case of a Letter of Credit denominated in an Alternate Currency, the
amount of such Letter of Credit to be reimbursed by the Borrowers under this Section 2.2.2 shall
be determined by taking the Dollar Amount of such Letter of Credit.
(b) Upon issuance of a Letter of Credit, each Lender shall be deemed
to have irrevocably and unconditionally purchased from Issuing Bank, without recourse or
warranty, an undivided Pro Rata interest and participation in all LC Obligations relating to the
Letter of Credit. If Issuing Bank makes any payment under a Letter of Credit and Borrowers do
not reimburse such payment on the Reimbursement Date, Agent shall promptly notify Lenders
and each Lender shall promptly (within one Business Day) and unconditionally pay to Agent, for
the benefit of Issuing Bank, the Lender’s Pro Rata share of such payment. Upon request by a
Lender, Issuing Bank shall furnish copies of any Letters of Credit and LC Documents in its
possession at such time. It being understood that in the case of a Letter of Credit denominated in
an Alternate Currency, the amount of such Lender’s payment in respect of such Letter of Credit
under this Section 2.2.2 shall be determined by taking the Dollar Amount of such Letter of
Credit.
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(c) The obligation of each Lender to make payments to Agent for the
account of Issuing Bank in connection with Issuing Bank’s payment under a Letter of Credit
shall be absolute, unconditional and irrevocable, not subject to any counterclaim, setoff,
qualification or exception whatsoever, and shall be made in accordance with this Agreement
under all circumstances, irrespective of any lack of validity or unenforceability of any Loan
Documents; any draft, certificate or other document presented under a Letter of Credit having
been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or the existence of any setoff or defense that
any Obligor may have with respect to any Obligations. Issuing Bank does not assume any
responsibility for any failure or delay in performance or any breach by any Borrower or other
Person of any obligations under any LC Documents. Issuing Bank does not make to Lenders any
express or implied warranty, representation or guaranty with respect to the Collateral, LC
Documents or any Obligor. Issuing Bank shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties contained in, or for the execution, validity,
genuineness, effectiveness or enforceability of any LC Documents; the validity, genuineness,
enforceability, collectability, value or sufficiency of any Collateral or the perfection of any Lien
therein; or the assets, liabilities, financial condition, results of operations, business,
creditworthiness or legal status of any Obligor.
(d) No Issuing Bank Indemnitee shall be liable to any Lender or other
Person for any action taken or omitted to be taken in connection with any Letter of Credit or LC
Document except as a result of its gross negligence or willful misconduct. Issuing Bank may
refrain from taking any action with respect to a Letter of Credit until it receives written
instructions from Required Lenders.
2.2.3. Cash Collateral. If any LC Obligations, whether or not then due or
payable, shall for any reason be outstanding at any time (a) that an Event of Default exists,
(b) that Availability is less than zero, (c) after the Commitment Termination Date, or (d) within
20 Business Days prior to the Revolver Termination Date, then Borrowers shall, at Issuing
Bank’s or Agent’s request, Cash Collateralize the stated amount of all outstanding Letters of
Credit and pay to Issuing Bank the amount of all other LC Obligations. Borrowers shall, on
demand by Issuing Bank or Agent from time to time, Cash Collateralize the Fronting Exposure
of any Defaulting Lender. In addition, following any such Cash Collateralization, the Agent may
request at any time and from time to time that the relevant Borrower provide additional Cash
Collateral to ensure that the amount deposited as Cash Collateral is in an amount equal to 105%
of the Fronting Exposure after giving effect to any exchange rate fluctuation with respect to
Letters of Credit denominated in a currency other than Dollars. If Borrowers fail to provide any
Cash Collateral as required hereunder, Lenders may (and shall upon direction of Agent) advance,
as Revolver Loans, the amount of the Cash Collateral required (whether or not the Commitments
have terminated, an Overadvance exists or the conditions in Section 6 are satisfied).
2.2.4. Resignation of Issuing Bank. Issuing Bank may resign at any time upon
notice to Agent and Borrowers. On and after the effective date of such resignation, Issuing Bank
shall have no obligation to issue, amend, renew, extend or otherwise modify any Letter of Credit,
but shall continue to have all rights and other obligations of an Issuing Bank hereunder relating
to any Letter of Credit issued by it prior to such date. Agent shall promptly appoint a
replacement Issuing Bank, which (i) accepts such appointment and (ii) as long as no Default or
Event of Default exists, shall be reasonably acceptable to Borrowers.
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SECTION 3. INTEREST, FEES AND CHARGES
3.1. Interest.
3.1.1. Rates and Payment of Interest.
(a) The Obligations shall bear interest (i) if a Base Rate Loan, at the
Base Rate in effect from time to time, plus the Applicable Margin for such Base Rate Loan;
(ii) if a LIBOR Loan, at LIBOR for the applicable Interest Period, plus the Applicable Margin
for LIBOR Loans; and (iii) if any other Obligation (including, to the extent permitted by law,
interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable
Margin for the related Base Rate Loans.
(b) During an Insolvency Proceeding with respect to any Borrower, or
during any other Event of Default if Agent or Required Lenders in their discretion so elect,
Obligations shall bear interest at the Default Rate (whether before or after any judgment). Each
Borrower acknowledges that the cost and expense to Agent and Lenders due to an Event of
Default are difficult to ascertain and that the Default Rate is fair and reasonable compensation
for this.
(c) Interest shall accrue from the date a Loan is advanced or
Obligation is incurred or payable, until paid in full by Borrowers. Interest accrued on the Loans
shall be due and payable in arrears, (i) on the first day of each month; (ii) on any date of
prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the
Commitment Termination Date. Interest accrued on any other Obligations shall be due and
payable as provided in the Loan Documents and, if no payment date is specified, shall be due
and payable on demand. Notwithstanding the foregoing, interest accrued at the Default Rate
shall be due and payable on demand.
3.1.2. Application of LIBOR to Outstanding Loans.
(a) Borrowers may on any Business Day, subject to delivery of a
Notice of Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to
continue any LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any
Default or Event of Default, Agent may (and shall at the direction of Required Lenders) declare
that no Loan may be made, converted or continued as a LIBOR Loan.
(b) Whenever Borrowers desire to convert or continue Loans as
LIBOR Loans, Borrower Agent shall give Agent a Notice of Conversion/Continuation, no later
than 11:00 a.m. at least three Business Days before the requested conversion or continuation
date. Promptly after receiving any such notice, Agent shall notify each Lender thereof. Each
Notice of Conversion/Continuation shall be irrevocable, and shall specify the amount of Loans to
be converted or continued, the conversion or continuation date (which shall be a Business Day),
and the duration of the Interest Period (which shall be deemed to be 30 days if not specified). If,
upon the expiration of any Interest Period in respect of any LIBOR Loans, Borrowers shall have
failed to deliver a Notice of Conversion/Continuation, they shall be deemed to have elected to
convert such Loans into Base Rate Loans.
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3.1.3. Interest Periods. In connection with the making, conversion or
continuation of any LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to
apply, which interest period shall be 30, 60, 90 or 180 days; provided, however, that:
(a) the Interest Period shall begin on the date the Loan is made or
continued as, or converted into, a LIBOR Loan, and shall expire on the numerically
corresponding day in the calendar month at its end;
(b) if any Interest Period begins on a day for which there is no
corresponding day in the calendar month at its end or if such corresponding day falls after the
last Business Day of such month, then the Interest Period shall expire on the last Business Day of
such month; and if any Interest Period would otherwise expire on a day that is not a Business
Day, the period shall expire on the next Business Day; and
(c) no Interest Period shall extend beyond the Revolver Termination
Date.
3.1.4. Interest Rate Not Ascertainable. If Agent shall determine that on any
date for determining LIBOR, due to any circumstance affecting the London interbank market,
adequate and fair means do not exist for ascertaining such rate on the basis provided herein, then
Agent shall immediately notify Borrowers of such determination. Until Agent notifies
Borrowers that such circumstance no longer exists, the obligation of Lenders to make LIBOR
Loans shall be suspended, and no further Loans may be converted into or continued as LIBOR
Loans.
3.2. Fees.
3.2.1. Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata
benefit of Lenders, a fee equal to the Unused Line Fee Rate times the amount by which the
Revolver Commitments exceed the average daily balance of Revolver Loans and stated amount
of Letters of Credit during any month. Such fee shall be payable in arrears, on the first day of
each month and on the Commitment Termination Date.
3.2.2. LC Facility Fees. Borrowers shall pay (a) to Agent, for the Pro Rata
benefit of Lenders, a fee equal to the Applicable Margin in effect for LIBOR Loans times the
average daily stated amount of Letters of Credit, which fee shall be payable monthly in arrears,
on the first day of each month; (b) to Agent, for its own account, a fronting fee equal to 0.125%
per annum on the stated amount of each Letter of Credit, which fee shall be payable monthly in
arrears, on the first day of each month; and (c) to Issuing Bank, for its own account, all
customary charges associated with the issuance, amending, negotiating, payment, processing,
transfer and administration of Letters of Credit, which charges shall be paid as and when
incurred. During an Event of Default, the fee payable under clause (a) shall be increased by 2%
per annum.
3.2.3. Fee Letters. Borrowers shall pay all fees set forth in any fee letter
executed in connection with this Agreement.
3.3. Computation of Interest, Fees, Yield Protection. All interest, as well as fees
and other charges calculated on a per annum basis, shall be computed for the actual days elapsed,
based on a year of 360 days. Each determination by Agent of any interest, fees or interest rate
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hereunder shall be final, conclusive and binding for all purposes, absent manifest error. All fees
shall be fully earned when due and shall not be subject to rebate, refund or proration. All fees
payable under Section 3.2 are compensation for services and are not, and shall not be deemed to
be, interest or any other charge for the use, forbearance or detention of money. A certificate as
to amounts payable by Borrowers under Section 3.4, 3.7, 3.9 or 5.9, submitted to Borrower
Agent by Agent or the affected Lender, as applicable, shall be final, conclusive and binding for
all purposes, absent manifest error, and Borrowers shall pay such amounts to the appropriate
party within 10 days following receipt of the certificate.
3.4. Reimbursement Obligations. Borrowers shall reimburse Agent for all
Extraordinary Expenses. Borrowers shall also reimburse Agent for all reasonable legal,
accounting, appraisal, consulting, and other fees, costs and expenses incurred by it in connection
with (a) negotiation and preparation of any Loan Documents, including any amendment or other
modification thereof; (b) administration of and actions relating to any Collateral, Loan
Documents and transactions contemplated thereby, including any actions taken to perfect or
maintain priority of Agent’s Liens on any Collateral, to maintain any insurance required
hereunder or to verify Collateral; and (c) subject to the limits of Section 10.1.1(b), each
inspection, audit or appraisal with respect to any Obligor or Collateral, whether prepared by
Agent’s personnel or a third party. Unless specifically provided for otherwise in this Agreement
or any other Loan Document, amounts payable under clauses (a) and (b) of the preceding
sentence shall be limited to out-of-pocket amounts paid by the Agent. All legal, accounting and
consulting fees shall be charged to Borrowers by Agent’s professionals at their full hourly rates,
after giving effect to any applicable reduced or alternative fee billing arrangements that Agent
may have with such professionals with respect to this transaction. In addition to the
Extraordinary Expenses of Agent, upon the occurrence and during the continuance of an Event
Default, Borrowers shall reimburse Lenders for the reasonable and documented fees, charges and
disbursements of one counsel (and if necessary, of one local counsel in each other relevant
jurisdiction (which may include a local counsel acting in each of multiple jurisdictions)) for the
Lenders, as a whole, in connection with the enforcement, collection or protection of their
respective rights under the Loan Documents, including all such expenses incurred during any
workout, restructuring or Insolvency Proceeding; provided, that, notwithstanding anything to the
contrary herein, in the event that there is a conflict of interest amongst the Lenders on the one
hand or the Agent and the Lenders on the other hand, the Lenders may engage and be reimbursed
for one additional counsel, subject to the foregoing limitations. If, for any reason (including
inaccurate reporting on financial statements or a Compliance Certificate), it is determined that a
higher Applicable Margin should have applied to a period than was actually applied, then the
proper margin shall be applied retroactively and Borrowers shall immediately pay to Agent, for
the Pro Rata benefit of Lenders, an amount equal to the difference between the amount of
interest and fees that would have accrued using the proper margin and the amount actually paid.
All amounts payable by Borrowers under this Section shall be due five (5) Business Days after
demand.
3.5. Illegality. If any Lender determines that any Applicable Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge
interest rates based upon LIBOR, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or
any Alternate Currency in the London interbank market, then, on notice thereof by such Lender
to Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base
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Rate Loans to LIBOR Loans shall be suspended until such Lender notifies Agent that the
circumstances giving rise to such determination no longer exist. Upon delivery of such notice,
Borrowers shall prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate
Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue
to maintain such LIBOR Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, Borrowers
shall also pay accrued interest on the amount so prepaid or converted.
3.6. Inability to Determine Rates. If Required Lenders notify Agent in connection
with a request for a Borrowing of, or conversion to or continuation of, a LIBOR Loan that
(a) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for
the applicable amount and Interest Period of such Loan, (b) adequate and reasonable means do
not exist for determining LIBOR for the requested Interest Period, or (c) LIBOR for the
requested Interest Period does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, then Agent will promptly so notify Borrower Agent and each Lender.
Thereafter, the obligation of Lenders to make or maintain LIBOR Loans shall be suspended until
Agent (upon instruction by Required Lenders) revokes such notice. Upon receipt of such notice,
Borrower Agent may revoke any pending request for a Borrowing of, conversion to or
continuation of a LIBOR Loan or, failing that, will be deemed to have submitted a request for a
Base Rate Loan.
3.7. Increased Costs; Capital Adequacy.
3.7.1. Change in Law. If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, liquidity, special
deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits
with or for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in LIBOR) or Issuing Bank;
(b) subject any Lender or Issuing Bank to any Tax with respect to any
Loan, Loan Document, Letter of Credit or participation in LC Obligations, or change the basis of
taxation of payments to such Lender or Issuing Bank in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 5.9 and the imposition of, or any change in the rate of,
any Excluded Tax payable by such Lender or Issuing Bank); or
(c) impose on any Lender, Issuing Bank or interbank market any other
condition, cost or expense affecting any Loan, Loan Document, Letter of Credit, participation in
LC Obligations, or Commitment;
and the result thereof shall be to increase the cost to such Lender of making or maintaining any
Loan or Commitment, or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining any Letter of Credit, or to reduce the amount of any sum received or
receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or any other
amount) then, upon request of such Lender or Issuing Bank, Borrowers will pay to such Lender
or Issuing Bank, as applicable, such additional amount or amounts as will compensate such
Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered.
3.7.2. Capital Adequacy. If any Lender or Issuing Bank determines that any
Change in Law affecting such Lender or Issuing Bank or any Lending Office of such Lender or
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such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity
requirements has or would have the effect of reducing the rate of return on such Lender’s,
Issuing Bank’s or holding company’s capital as a consequence of this Agreement, or such
Lender’s or Issuing Bank’s Commitments, Loans, Letters of Credit or participations in LC
Obligations, to a level below that which such Lender, Issuing Bank or holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s, Issuing
Bank’s and holding company’s policies with respect to capital adequacy and liquidity), then from
time to time Borrowers will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate it or its holding company for any such
reduction suffered.
3.7.3. Compensation. Failure or delay on the part of any Lender or Issuing
Bank to demand compensation pursuant to this Section shall not constitute a waiver of its right to
demand such compensation, but Borrowers shall not be required to compensate a Lender or
Issuing Bank for any increased costs incurred or reductions suffered more than nine months prior
to the date that the Lender or Issuing Bank notifies Borrower Agent of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the nine-month period referred to above shall be extended
to include the period of retroactive effect thereof).
3.8. Mitigation; Replacement of Lenders under Certain Circumstances. If any
Lender gives a notice under Section 3.5 or requests compensation under Section 3.7, or if
Borrowers are required to pay additional amounts with respect to a Lender under Section 5.9,
then such Lender shall use reasonable efforts to designate a different Lending Office or to assign
its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the
judgment of such Lender, such designation or assignment (a) would eliminate the need for such
notice or reduce amounts payable or to be withheld in the future, as applicable; and (b) would not
subject the Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to it or unlawful. Borrowers shall pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment. Borrowers shall
be permitted to replace any Lender that gives a notice under Section 3.5 or 3.6 or requests
compensation under Section 3.7, or if Borrowers are required to pay additional amounts with
respect to a Lender under Section 5.9, with a replacement lender; provided that (i) no Event of
Default shall have occurred and be continuing at the time of such replacement, (ii) the
replacement lender shall purchase, at par, all Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement, (iii) the replacement lender, if not an Eligible
Assignee, shall be satisfactory to the Agent, (iv) the replaced Lender shall be obligated to make
such replacement in accordance with the provisions of Section 13.3, (v) the Borrowers shall pay
all additional amounts (if any) required pursuant to Section 3.5 or 3.7, as the case may be, in
respect of any period prior to the date on which such replacement shall be consummated, and (vi)
any such replacement shall not be deemed to be a waiver of any rights that the Borrowers, the
Agent or any other Lender shall have against the replaced Lender.
3.9. Funding Losses. If for any reason (other than default by a Lender) (a) any
Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or
not withdrawn), (b) any repayment or conversion of a LIBOR Loan occurs on a day other than
the end of its Interest Period, (c) Borrowers fail to repay a LIBOR Loan when required
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hereunder, or (d) a Lender (other than a Defaulting Lender) is required to assign a LIBOR Loan
prior to the end of its Interest Period pursuant to Section 3.8 or 13.4, then Borrowers shall pay to
Agent its customary administrative charge and to each Lender all resulting losses and expenses,
including loss of anticipated profits and any loss or expense arising from liquidation or
redeployment of funds or from fees payable to terminate deposits of matching funds. Lenders
shall not be required to purchase Dollar deposits in any interbank or offshore Dollar market to
fund any LIBOR Loan, but this Section shall apply as if each Lender had purchased such
deposits.
3.10. Maximum Interest. Regardless of any provision contained in any of the Loan
Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are
contracted for, charged or received by Agent or any Lender pursuant to the terms of this
Agreement or any of the other Loan Documents and that are deemed interest under Applicable
Law exceed the highest rate permissible under any Applicable Law (the “Maximum Rate”). No
agreements, conditions, provisions or stipulations contained in this Agreement or any of the
other Loan Documents or the exercise by Agent of the right to accelerate the payment or the
maturity of all or any portion of the Obligations, or the exercise of any option whatsoever
contained in any of the Loan Documents, or the prepayment by any Obligor of any of the
Obligations, or the occurrence of any contingency whatsoever, shall entitle Agent or Lenders to
charge or receive in any event, interest or any charges, amounts, premiums or fees deemed
interest by Applicable Law (such interest, charges, amounts, premiums and fees referred to
herein collectively as “Interest”) in excess of the Maximum Rate and in no event shall any
Obligor be obligated to pay Interest exceeding such Maximum Rate, and all agreements,
conditions or stipulations, if any, which may in any event or contingency whatsoever operate to
bind, obligate or compel any Obligor to pay Interest exceeding the Maximum Rate shall be
without binding force or effect, at law or in equity, to the extent only of the excess of Interest
over such Maximum Rate. If any Interest is charged or received with respect to the Obligations
in excess of the Maximum Rate (“Excess”), each Obligor stipulates that any such charge or
receipt shall be the result of an accident and bona fide error, and such Excess, to the extent
received, shall be applied first to reduce the principal Obligations and the balance, if any,
returned to the Obligors, it being the intent of the parties hereto not to enter into an usurious or
otherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does
not include the right to accelerate any Interest that has not otherwise accrued on the date of such
acceleration, and neither Agent nor any Lender intends to collect any unearned Interest in the
event of any such acceleration. Each Obligor recognizes that, with fluctuations in the rates of
interest set forth in this Agreement, and the Maximum Rate, such an unintentional result could
inadvertently occur. All monies paid to Agent or any Lender hereunder or under any of the other
Loan Documents, whether at maturity or by prepayment, shall be subject to any rebate of
unearned Interest as and to the extent required by Applicable Law. By the execution of this
Agreement, each Obligor covenants that (i) the credit or return of any Excess shall constitute the
acceptance by each Obligor of such Excess, and (ii) each Obligor shall not seek or pursue any
other remedy, legal or equitable, against Agent or any Lender, based in whole or in part upon
contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the
purpose of determining whether or not any Excess has been contracted for, charged or received
by Agent or any Lender, all Interest at any time contracted for, charged or received from any
Obligor in connection with any of the Loan Documents shall, to the extent permitted by
Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full
term of the Obligations. Obligors, Agent and Lenders shall, to the maximum extent permitted
under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium
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rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section 3.10 shall be deemed to be incorporated into every Loan Document
(whether or not any provision of this Section is referred to therein). All such Loan Documents
and communications relating to any Interest owed by any Obligor and all figures set forth therein
shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed
by the Obligors, and by any court considering the same, to give effect to the adjustments or
credits required by this Section 3.10.
SECTION 4. LOAN ADMINISTRATION
4.1. Manner of Borrowing and Funding Revolver Loans.
4.1.1. Notice of Borrowing.
(a) Whenever Borrowers desire funding of a Borrowing of Revolver
Loans, Borrower Agent shall give Agent a Notice of Borrowing. Such notice must be received
by Agent no later than 2:00 p.m. (i) on the Business Day of the requested funding date, in the
case of Base Rate Loans, and (ii) at least three Business Days prior to the requested funding date,
in the case of LIBOR Loans. Notices received after 2:00 p.m. shall be deemed received on the
next Business Day. Each Notice of Borrowing shall be irrevocable and shall specify (A) the
amount of the Borrowing, (B) the requested funding date (which must be a Business Day),
(C) whether the Borrowing is to be made as Base Rate Loans or LIBOR Loans, and (D) in the
case of LIBOR Loans, the duration of the applicable Interest Period (which shall be deemed to
be 30 days if not specified).
(b) Unless payment is otherwise timely made by Borrowers, the
becoming due of any Obligations (whether principal, interest, fees or other charges, including
Extraordinary Expenses, LC Obligations, Cash Collateral and Secured Bank Product
Obligations) shall be deemed to be a request for Base Rate Revolver Loans on the due date, in
the amount of such Obligations. The proceeds of such Revolver Loans shall be disbursed as
direct payment of the relevant Obligation. In addition, Agent may, at its option, charge such
Obligations against any operating, investment or other account of a Borrower maintained with
Agent or any of its Affiliates.
(c) If Borrowers maintain any disbursement account with Agent or
any Affiliate of Agent, then presentation for payment of any Payment Item when there are
insufficient funds to cover it shall be deemed to be a request for a Base Rate Revolver Loan on
the date of such presentation, in the amount of the Payment Item. The proceeds of such
Revolver Loan may be disbursed directly to the disbursement account.
4.1.2. Fundings by Lenders. Each Lender shall timely honor its Revolver
Commitment by funding its Pro Rata share of each Borrowing of Revolver Loans that is properly
requested hereunder. Except for Borrowings to be made as Swingline Loans, Agent shall
endeavor to notify Lenders of each Notice of Borrowing (or deemed request for a Borrowing) by
3:00 p.m. on the proposed funding date for Base Rate Loans or by 3:00 p.m. at least two
Business Days before any proposed funding of LIBOR Loans. Each Lender shall fund to Agent
such Lender’s Pro Rata share of the Borrowing to the account specified by Agent in immediately
available funds not later than 4:00 p.m. on the requested funding date, unless Agent’s notice is
received after the times provided above, in which case Lender shall fund its Pro Rata share by
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11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from Lenders,
Agent shall disburse the proceeds of the Revolver Loans as directed by Borrower Agent. Unless
Agent shall have received (in sufficient time to act) written notice from a Lender that it does not
intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has
deposited or promptly will deposit its share with Agent, and Agent may disburse a corresponding
amount to Borrowers. If a Lender’s share of any Borrowing or of any settlement pursuant to
Section 4.1.3(b) is not received by Agent, then Borrowers agree to repay to Agent on demand
the amount of such share, together with interest thereon from the date disbursed until repaid, at
the rate applicable to the Borrowing.
4.1.3. Swingline Loans; Settlement.
(a) Agent may, but shall not be obligated to, advance Swingline Loans
to Borrowers, up to an aggregate outstanding amount of $15,000,000, unless the funding is
specifically required to be made by all Lenders hereunder. Each Swingline Loan shall constitute
a Revolver Loan for all purposes, except that payments thereon shall be made to Agent for its
own account. The obligation of Borrowers to repay Swingline Loans shall be evidenced by the
records of Agent and need not be evidenced by any promissory note.
(b) Settlement of Swingline Loans and other Revolver Loans among
Lenders and Agent shall take place on a date determined from time to time by Agent (but at least
weekly), in accordance with the Settlement Report delivered by Agent to Lenders. Between
settlement dates, Agent may in its discretion apply payments on Revolver Loans to Swingline
Loans, regardless of any designation by Borrower or any provision herein to the contrary. Each
Lender’s obligation to make settlements with Agent is absolute and unconditional, without
offset, counterclaim or other defense, and whether or not the Commitments have terminated, an
Overadvance exists or the conditions in Section 6 are satisfied. If, due to an Insolvency
Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be settled
among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a
Pro Rata participation in such Loan and shall transfer the amount of such participation to Agent,
in immediately available funds, within one Business Day after Agent’s request therefor.
4.1.4. Notices. Borrowers may request, convert or continue Loans, select
interest rates and transfer funds based on telephonic or e-mailed instructions to Agent.
Borrowers shall confirm each such request by prompt delivery to Agent of a Notice of
Borrowing or Notice of Conversion/Continuation, if applicable, but if it differs materially from
the action taken by Agent or Lenders, the records of Agent and Lenders shall govern. Neither
Agent nor any Lender shall have any liability for any loss suffered by a Borrower as a result of
Agent or any Lender acting upon its understanding of telephonic or e-mailed instructions from a
person believed in good faith by Agent or any Lender to be a person authorized to give such
instructions on a Borrower’s behalf.
4.2. Defaulting Lender.
4.2.1. Reallocation of Pro Rata Share; Amendments. For purposes of
determining Lenders’ obligations to fund or participate in Loans or Letters of Credit, Agent may
exclude the Commitments and Loans of any Defaulting Lender(s) from the calculation of Pro
Rata shares; provided, however, that in no event will any Lender be required to fund or
participate in Loans or Letters of Credit if as a result of such funding or participation the
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aggregate amount of such Lender’s Revolving Loans and participations in LC Obligations would
exceed its Commitment. A Defaulting Lender shall have no right to vote on any amendment,
waiver or other modification of a Loan Document, except as provided in Section 15.1.1(c).
4.2.2. Payments; Fees. Agent may, in its discretion, receive and retain any
amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender
shall be deemed to have assigned to Agent such amounts until all Obligations owing to Agent,
non-Defaulting Lenders and other Secured Parties have been paid in full. Agent may apply such
amounts to the Defaulting Lender’s defaulted obligations, use the funds to Cash Collateralize
such Lender’s Fronting Exposure, or readvance the amounts to Borrowers hereunder. A Lender
shall not be entitled to receive any fees accruing hereunder during the period in which it is a
Defaulting Lender, and the unfunded portion of its Commitment shall be disregarded for
purposes of calculating the unused line fee under Section 3.2.1. If any LC Obligations owing to
a Defaulted Lender are reallocated to other Lenders, fees attributable to such LC Obligations
under Section 3.2.2 shall be paid to such Lenders. Agent shall be paid all fees attributable to LC
Obligations that are not reallocated.
4.2.3. Cure. Borrowers, Agent and Issuing Bank may agree in writing that a
Lender is no longer a Defaulting Lender. At such time, Pro Rata shares shall be reallocated
without exclusion of such Lender’s Commitments and Loans, and all outstanding Revolver
Loans, LC Obligations and other exposures under the Revolver Commitments shall be
reallocated among Lenders and settled by Agent (with appropriate payments by the reinstated
Lender) in accordance with the readjusted Pro Rata shares. Unless expressly agreed by
Borrowers, Agent and Issuing Bank, no reinstatement of a Defaulting Lender shall constitute a
waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to
make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder
shall not relieve any other Lender of its obligations, and no Lender shall be responsible for
default by another Lender.
4.3. Number and Amount of LIBOR Loans; Determination of Rate. Each
Borrowing of LIBOR Loans when made shall be in a minimum amount of $1,000,000, plus any
increment of $500,000 in excess thereof. No more than ten (10) Borrowings of LIBOR Loans
may be outstanding at any time, and all LIBOR Loans having the same length and beginning
date of their Interest Periods shall be aggregated together and considered one Borrowing for this
purpose. Upon determining LIBOR for any Interest Period requested by Borrowers, Agent shall
promptly notify Borrowers thereof by telephone or electronically and, if requested by Borrowers,
shall confirm any telephonic notice in writing.
4.4. Borrower Agent. Each Borrower hereby designates US Concrete (“Borrower
Agent”) as its representative and agent for all purposes under the Loan Documents, including
requests for Loans and Letters of Credit, designation of interest rates, delivery or receipt of
communications, preparation and delivery of Borrowing Base and financial reports, receipt and
payment of Obligations, requests for waivers, amendments or other accommodations, actions
under the Loan Documents (including in respect of compliance with covenants), and all other
dealings with Agent, Issuing Bank or any Lender. Borrower Agent hereby accepts such
appointment. Agent and Lenders shall be entitled to rely upon, and shall be fully protected in
relying upon, any notice or communication (including any notice of borrowing) delivered by
Borrower Agent on behalf of any Borrower. Agent and Lenders may give any notice or
communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower.
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Each of Agent, Issuing Bank and Lenders shall have the right, in its discretion, to deal
exclusively with Borrower Agent for any or all purposes under the Loan Documents. Each
Borrower agrees that any notice, election, communication, representation, agreement or
undertaking made on its behalf by Borrower Agent shall be binding upon and enforceable against
it.
4.5. One Obligation. The Loans, LC Obligations and other Obligations constitute
one general obligation of Borrowers and are secured by Agent’s Lien on all Collateral; provided,
however, that Agent and each Lender shall be deemed to be a creditor of, and the holder of a
separate claim against, each Borrower to the extent of any Obligations jointly or severally owed
by such Borrower.
4.6. Effect of Termination. On the effective date of the termination of all
Commitments, the outstanding Obligations shall be immediately due and payable, and any
Lender may terminate its and its Affiliates’ Bank Products (including, only with the consent of
Agent, any Cash Management Services). Until Full Payment of the outstanding Obligations, all
undertakings of Borrowers contained in the Loan Documents shall continue, and Agent shall
retain its Liens in the Collateral and all of its rights and remedies under the Loan Documents.
Agent shall not be required to terminate its Liens unless it receives Cash Collateral or a written
agreement, in each case satisfactory to it, protecting Agent and Lenders from the dishonor or
return of any Payment Items previously applied to the Obligations. Sections 3.4, 3.7, 3.9, 5.5,
5.9, 5.10, 12, 14.2, this Section, and each indemnity or waiver given by an Obligor or Lender in
any Loan Document, shall survive Full Payment of the Obligations.
SECTION 5. PAYMENTS
5.1. General Payment Provisions. All payments of Obligations shall be made in
Dollars, without offset, counterclaim or defense of any kind, free of (and without deduction for)
any Taxes, and in immediately available funds, not later than 1:00 p.m. on the due date. Any
payment after such time shall be deemed made on the next Business Day. Any payment of a
LIBOR Loan prior to the end of its Interest Period shall be accompanied by all amounts due
under Section 3.9. Borrowers agree that Agent shall have the continuing, exclusive right to
apply and reapply payments and proceeds of Collateral against the outstanding Obligations, in
such manner as Agent deems advisable, but whenever possible, any prepayment of Loans shall
be applied first to Base Rate Loans and then to LIBOR Loans. It being understood and agreed
that any LC Obligations denominated in an Alternate Currency shall be made in Dollars in the
Dollar Amount of the Alternate Currency.
5.2. Repayment of Revolver Loans. Revolver Loans shall be due and payable in full
on the Revolver Termination Date, unless payment is sooner required hereunder. Revolver
Loans may be prepaid from time to time, without penalty or premium. Concurrently with (a) any
Asset Disposition of ABL Priority Collateral (including any Machinery) (i) that occurs during a
Trigger Period or the immediate effect of which disposition will be the commencement of a
Trigger Period or (ii) which disposition is not permitted by the provisions of this Agreement or
(b) any other Asset Disposition of (i) Trucks that have a fair market or book value (whichever is
more) of at least $1,000,000 or (ii) Inventory that has a fair market or book value (whichever is
more) of at least $1,000,000, or (iii) Accounts that have a fair market or book value (whichever
is more) of at least $250,000 or (iv) Machinery that has a fair market or book value (whichever is
more) of at least $1,000,000, Borrowers shall prepay Revolver Loans in an amount equal to the
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Net Proceeds of such Asset Disposition, provided that any such prepayment shall not waive any
Default or Event of Default otherwise arising under this Agreement due to such Asset
Disposition. Subject to Section 2.1.5, notwithstanding anything herein to the contrary, if an
Overadvance exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day
after any Borrower has knowledge thereof, repay the outstanding Revolver Loans in an amount
sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base.
5.3. Payment of Other Obligations. Obligations other than Loans and LC
Obligations, shall be paid by Borrowers as provided in the Loan Documents or, if no payment
date is specified, within five (5) Business Days of demand.
5.4. Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of any Obligor or against any Obligations. If any
payment by or on behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or Agent,
Issuing Bank or any Lender exercises a right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by Agent, Issuing Bank or
such Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then to the
extent of such recovery, the Obligation originally intended to be satisfied, and all Liens, rights
and remedies relating thereto, shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred.
5.5. Application and Allocation of Payments.
5.5.1. Application. Payments made by Borrowers hereunder shall be applied
(a) first, as specifically required hereby; (b) second, to Obligations then due and owing; (c) third,
to other Obligations specified by Borrowers; and (d) fourth, as determined by Agent in its
Permitted Discretion.
5.5.2. Post-Default Allocation. Notwithstanding anything in any Loan
Document to the contrary, during an Event of Default, monies to be applied to the Obligations,
whether arising from payments by Obligors, realization on Collateral (subject to the Intercreditor
Agreement), setoff or otherwise, shall be allocated as follows:
(a) first, to all costs and expenses, including Extraordinary Expenses,
owing to Agent;
(b) second, to all amounts owing to Agent on Swingline Loans;
(c) third, to all amounts owing to Issuing Bank;
(d) fourth, to all Obligations constituting fees (other than Secured
Bank Product Obligations);
(e) fifth, to all Obligations constituting interest (other than Secured
Bank Product Obligations);
(f) sixth, to Cash Collateralization of LC Obligations;
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(g) seventh, to all Loans, and to Secured Bank Product Obligations
arising under Hedging Agreements (including Cash Collateralization thereof) up to the amount
of reserves existing therefor;
(h) eighth, to all other Secured Bank Product Obligations; and
(i) last, to all remaining Obligations.
Amounts shall be applied to payment of each category of Obligations only after Full Payment of
all preceding categories. If amounts are insufficient to satisfy a category, Obligations in the
category shall be paid on a pro rata basis. Monies and proceeds obtained from an Obligor shall
not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with
respect to amounts obtained from other Obligors to preserve the allocations in any applicable
category. Amounts distributed with respect to any Secured Bank Product Obligation shall be
calculated using the methodology reported to Agent for such Obligation (but no greater than the
maximum amount reported to Agent). Agent shall have no obligation to calculate the amount of
any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof
from the applicable Secured Bank Product Provider. If the provider fails to deliver the
calculation within five days following request, Agent may assume the amount is zero. The
allocations set forth in this Section are solely to determine the rights and priorities among
Secured Parties, and may be changed by agreement among them without the consent of any
Obligor. This Section is not for the benefit of or enforceable by any Obligor, and each Borrower
irrevocably waives the right to direct the application of any payments or Collateral proceeds
subject to this Section.
5.5.3. Erroneous Application. Agent shall not be liable for any application of
amounts made by it in good faith and, if any such application is subsequently determined to have
been made in error, the sole recourse of any Lender or other Person to which such amount should
have been made shall be to recover the amount from the Person that actually received it (and, if
such amount was received by any Lender, such Lender hereby agrees to return it).
5.6. Dominion Account. The ledger balance in the main Dominion Account as of the
end of a Business Day shall be applied to the Obligations at the beginning of the next Business
Day, during any FCCR Trigger Period. If, as a result of such application, a credit balance exists,
the balance shall not accrue interest in favor of Borrowers and shall be made available to
Borrowers as long as no Default or Event of Default exists.
5.7. Account Stated. The Agent shall maintain in accordance with its usual and
customary practices account(s) evidencing the Debt of Borrowers hereunder. Any failure of
Agent to record anything in a loan account, or any error in doing so, shall not limit or otherwise
affect the obligation of Borrowers to pay any amount owing hereunder. Entries made in a loan
account shall constitute presumptive evidence of the information contained therein. If any
information contained in a loan account is provided to or inspected by any Person, the
information shall be conclusive and binding on such Person for all purposes absent manifest
error, except to the extent such Person notifies Agent in writing within 30 days after receipt or
inspection that specific information is subject to dispute.
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5.8. Taxes.
5.8.1. Payments Free of Taxes. All payments by Obligors of Obligations shall
be free and clear of and without reduction for any Taxes. If Applicable Law requires any
Obligor or Agent to withhold or deduct any Tax (including backup withholding or withholding
Tax), the withholding or deduction shall be based on information provided pursuant to Section
5.9 and Agent shall pay the amount withheld or deducted to the relevant Governmental
Authority. If the withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by Borrowers shall be increased so that Agent, Lender or Issuing Bank,
as applicable, receives an amount equal to the sum it would have received if no such withholding
or deduction (including deductions applicable to additional sums payable under this Section) had
been made. Without limiting the foregoing, Borrowers shall timely pay all Other Taxes to the
relevant Governmental Authorities.
5.8.2. Payment. Borrowers shall indemnify, hold harmless and reimburse
(within 10 days after demand therefor) Agent, Lenders and Issuing Bank for any Indemnified
Taxes or Other Taxes (including those attributable to amounts payable under this Section but
excluding any amounts directly attributable to such indemnitee’s gross negligence or willful
misconduct) withheld or deducted by any Obligor or Agent, or paid by Agent, any Lender or
Issuing Bank, with respect to any Obligations, Letters of Credit or Loan Documents, whether or
not such Taxes were properly asserted by the relevant Governmental Authority, and including all
penalties, interest and reasonable expenses relating thereto, as well as any amount that a Lender
or Issuing Bank fails to pay indefeasibly to Agent under Section 5.9. A certificate as to the
amount of any such payment or liability delivered to Borrower Agent by Agent, or by a Lender
or Issuing Bank (with a copy to Agent), shall be conclusive, absent manifest error. As soon as
practicable after any payment of Taxes by a Borrower, Borrower Agent shall deliver to Agent a
receipt from the Governmental Authority or other evidence of payment satisfactory to Agent.
5.9. Lender Tax Information.
5.9.1. Status of Lenders. Each Lender shall deliver documentation and
information to Agent and Borrower Agent, at the times and in form required by Applicable Law
or reasonably requested by Agent or Borrower Agent, sufficient to permit Agent or Borrowers to
determine (a) whether or not payments made with respect to Obligations are subject to Taxes,
(b) if applicable, the required rate of withholding or deduction, and (c) such Lender’s entitlement
to any available exemption from, or reduction of, applicable Taxes for such payments or
otherwise to establish such Lender’s status for withholding tax purposes in the applicable
jurisdiction.
5.9.2. Documentation. If a Borrower is resident for tax purposes in the United
States, any Lender that is a “United States person” within the meaning of section 7701(a)(30) of
the Code shall deliver to Agent and Borrower Agent IRS Form W-9 or such other documentation
or information prescribed by Applicable Law or reasonably requested by Agent or Borrower
Agent to determine whether such Lender is subject to backup withholding or information
reporting requirements. If any Foreign Lender is entitled to any exemption from or reduction of
withholding tax for payments with respect to the Obligations, it shall deliver to Agent and
Borrower Agent, on or prior to the date on which it becomes a Lender hereunder (and from time
to time thereafter upon request by Agent or Borrower Agent, but only if such Foreign Lender is
legally entitled to do so), (a) IRS Form W-8BEN claiming eligibility for benefits of an income
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tax treaty to which the United States is a party; (b) IRS Form W-8ECI; (c) IRS Form W-8IMY
and all required supporting documentation; (d) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section 881(c) of the Code, IRS Form W-
8BEN and a certificate showing such Foreign Lender is not (i) a “bank” within the meaning of
section 881(c)(3)(A) of the Code, (ii) a “10 percent shareholder” of any Obligor within the
meaning of section 881(c)(3)(B) of the Code, or (iii) a “controlled foreign corporation” described
in section 881(c)(3)(C) of the Code; or (e) any other form prescribed by Applicable Law as a
basis for claiming exemption from or a reduction in withholding tax, together with such
supplementary documentation necessary to allow Agent and Borrowers to determine the
withholding or deduction required to be made.
5.9.3. Lender Obligations. Each Lender and Issuing Bank shall promptly
notify Borrowers and Agent of any change in circumstances that would change any claimed Tax
exemption or reduction. Each Lender and Issuing Bank shall indemnify, hold harmless and
reimburse (within 10 days after demand therefor) Borrowers and Agent for any Taxes, losses,
claims, liabilities, penalties, interest and expenses (including reasonable attorneys’ fees) incurred
by or asserted against a Borrower or Agent by any Governmental Authority due to such Lender’s
or Issuing Bank’s failure to deliver, or inaccuracy or deficiency in, any documentation required
to be delivered by it pursuant to this Section. Each Lender and Issuing Bank authorizes Agent to
set off any amounts due to Agent under this Section against any amounts payable to such Lender
or Issuing Bank under any Loan Document.
5.10. Nature and Extent of Each Borrower’s Liability.
5.10.1. Joint and Several Liability. Each Borrower agrees that it is jointly and
severally liable for, and absolutely and unconditionally guarantees to Agent and Lenders the
prompt payment and performance of, all Obligations and all agreements under the Loan
Documents, except its Excluded Swap Obligations. Each Borrower agrees that its guaranty
obligations hereunder constitute a continuing guaranty of payment and not of collection, that
such obligations shall not be discharged until Full Payment of the Obligations, and that such
obligations are absolute and unconditional, irrespective of (a) the genuineness, validity,
regularity, enforceability, subordination or any future modification of, or change in, any
Obligations or Loan Document, or any other document, instrument or agreement to which any
Obligor is or may become a party or be bound; (b) the absence of any action to enforce this
Agreement (including this Section) or any other Loan Document, or any waiver, consent or
indulgence of any kind by Agent or any Lender with respect thereto; (c) the existence, value or
condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for
the Obligations or any action, or the absence of any action, by Agent or any Lender in respect
thereof (including the release of any security or guaranty); (d) the insolvency of any Obligor;
(e) any election by Agent or any Lender in an Insolvency Proceeding for the application of
Section 1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other
Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise;
(g) the disallowance of any claims of Agent or any Lender against any Obligor for the repayment
of any Obligations under Section 502 of the Bankruptcy Code or otherwise; or (h) any other
action or circumstances that might otherwise constitute a legal or equitable discharge or defense
of a surety or guarantor, except Full Payment of all Obligations.
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5.10.2. Waivers.
(a) Each Borrower expressly waives all rights that it may have now or
in the future under any statute, at common law, in equity or otherwise, to compel Agent or
Lenders to marshal assets or to proceed against any Obligor, other Person or security for the
payment or performance of any Obligations before, or as a condition to, proceeding against such
Borrower. Each Borrower waives all defenses available to a surety, guarantor or accommodation
co-Obligor other than Full Payment of all Obligations and waives, to the maximum extent
permitted by law, any right to revoke any guaranty of any Obligations as long as it is a Borrower.
It is agreed among each Borrower, Agent and Lenders that the provisions of this Section 5.10 are
of the essence of the transaction contemplated by the Loan Documents and that, but for such
provisions, Agent and Lenders would decline to make Loans and issue Letters of Credit. Each
Borrower acknowledges that its guaranty pursuant to this Section is necessary to the conduct and
promotion of its business, and can be expected to benefit such business.
(b) Agent may, in its discretion, pursue such rights and remedies as it
deems appropriate, including realization upon Collateral by judicial foreclosure or nonjudicial
sale or enforcement, without affecting any rights and remedies under this Section 5.10. If, in
taking any action in connection with the exercise of any rights or remedies, Agent or any Lender
shall forfeit any other rights or remedies, including the right to enter a deficiency judgment
against any Borrower or other Person, whether because of any Applicable Laws pertaining to
“election of remedies” or otherwise, each Borrower consents to such action and waives any
claim based upon it, even if the action may result in loss of any rights of subrogation that any
Borrower might otherwise have had. Any election of remedies that results in denial or
impairment of the right of Agent or any Lender to seek a deficiency judgment against any
Borrower shall not impair any other Borrower’s obligation to pay the full amount of the
Obligations. Each Borrower waives all rights and defenses arising out of an election of
remedies, such as nonjudicial foreclosure with respect to any security for the Obligations, even
though that election of remedies destroys such Borrower’s rights of subrogation against any
other Person. Agent or any Lender may bid all or a portion of the Obligations at any foreclosure,
trustee or other sale, including any private sale, and the amount of such bid need not be paid by
Agent but shall be credited against the Obligations. The amount of the successful bid at any such
sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to
be the fair market value of the Collateral, and the difference between such bid amount and the
remaining balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Section 5.10, notwithstanding that any present or future law or
court decision may have the effect of reducing the amount of any deficiency claim to which
Agent or any Lender might otherwise be entitled but for such bidding at any such sale.
5.10.3. Extent of Liability; Contribution.
(a) Notwithstanding anything herein to the contrary, each Borrower’s
liability under this Section 5.10 shall be limited to the greater of (i) all amounts for which such
Borrower is primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.
(b) If any Borrower makes a payment under this Section 5.10 of any
Obligations (other than amounts for which such Borrower is primarily liable) (a “Guarantor
Payment”) that, taking into account all other Guarantor Payments previously or concurrently
made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid
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if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payments in the
same proportion that such Borrower’s Allocable Amount bore to the total Allocable Amounts of
all Borrowers, then such Borrower shall be entitled to receive contribution and indemnification
payments from, and to be reimbursed by, each other Borrower for the amount of such excess, pro
rata based upon their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment. The “Allocable Amount” for any Borrower shall be the maximum amount
that could then be recovered from such Borrower under this Section 5.10 without rendering such
payment voidable under Section 548 of the Bankruptcy Code or under any applicable state
fraudulent transfer or conveyance act, or similar statute or common law.
(c) Nothing contained in this Section 5.10 shall limit the liability of
any Borrower to pay Loans made directly or indirectly to that Borrower (including Loans
advanced to any other Borrower and then re-loaned or otherwise transferred to, or for the benefit
of, such Borrower), LC Obligations relating to Letters of Credit issued to support such
Borrower’s business, and all accrued interest, fees, expenses and other related Obligations with
respect thereto, for which such Borrower shall be primarily liable for all purposes hereunder.
Agent and Lenders shall have the right, at any time in their discretion, to condition Loans and
Letters of Credit upon a separate calculation of borrowing availability for each Borrower and to
restrict the disbursement and use of such Loans and Letters of Credit to such Borrower.
(d) Each Obligor that is a Qualified ECP when its guaranty of or grant
of Lien as security for a Swap Obligation becomes effective hereby jointly and severally,
absolutely, unconditionally and irrevocably undertakes to provide funds or other support to each
Specified Obligor with respect to such Swap Obligation as may be needed by such Specified
Obligor from time to time to honor all of its obligations under the Loan Documents in respect of
such Swap Obligation (but, in each case, only up to the maximum amount of such liability that
can be hereby incurred without rendering such Qualified ECP's obligations and undertakings
under this Section 5.10 voidable under any applicable fraudulent transfer or conveyance act).
The obligations and undertakings of each Qualified ECP under this Section shall remain in full
force and effect until Full Payment of all Obligations. Each Obligor intends this Section to
constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a
“keepwell, support or other agreement” for the benefit of, each Obligor for all purposes of the
Commodity Exchange Act.
5.10.4. Joint Enterprise. Each Borrower has requested that Agent and Lenders
make this credit facility available to Borrowers on a combined basis, in order to finance
Borrowers’ business most efficiently and economically. Borrowers’ business is a mutual and
collective enterprise, and the successful operation of each Borrower is dependent upon the
successful performance of the integrated group. Borrowers believe that consolidation of their
credit facility will enhance the borrowing power of each Borrower and ease administration of the
facility, all to their mutual advantage. Borrowers acknowledge that Agent’s and Lenders’
willingness to extend credit and to administer the Collateral on a combined basis hereunder is
done solely as an accommodation to Borrowers and at Borrowers’ request.
5.10.5. Subordination. Each Borrower hereby subordinates any claims,
including any rights at law or in equity to payment, subrogation, reimbursement, exoneration,
contribution, indemnification or set off, that it may have at any time against any other Obligor,
howsoever arising, to the Full Payment of all Obligations.
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SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions Precedent to Initial Loans. In addition to the conditions set forth in
Section 6.2, this Agreement and the Lenders obligations to fund any requested Loan, issue any
Letter of Credit, or otherwise extend credit to Borrowers hereunder shall become effective on the
date on which (such date, the “Closing Date”) each of the following conditions has been
satisfied:
(a) Each Loan Document shall have been duly executed and delivered
to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all
terms thereof.
(b) Agent shall have received acknowledgments of all filings or
recordations necessary to perfect its Liens in the Collateral, except with respect to Liens that are
not required under this Agreement and the other Loan Documents to be perfected, as well as
UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only
Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received certificates, in form and substance
satisfactory to it, from a knowledgeable Senior Officer of each Borrower certifying that, after
giving effect to any Loan funded on the date hereof and transactions hereunder, (i) such
Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and
warranties set forth in Section 9 are true and correct; and (iv) such Borrower has complied with
all agreements and conditions to be satisfied by it under the Loan Documents.
(d) Agent shall have received a certificate of a duly authorized officer
of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true
and complete, and in full force and effect, without amendment except as shown; (ii) that an
attached copy of resolutions authorizing execution and delivery of the Loan Documents is true
and complete, and that such resolutions are in full force and effect, were duly adopted, have not
been amended, modified or revoked, and constitute all resolutions adopted with respect to this
credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan
Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the
applicable Obligor in writing.
(e) Agent shall have received a written opinion of Akin Gump ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, as well as any local counsel to Borrowers or Agent reasonably requested by
Agent, in form and substance satisfactory to Agent.
(f) Agent shall have received copies of the charter documents of each
Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s
jurisdiction of organization. Agent shall have received good standing certificates for each
Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s
jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or
ownership of Property necessitates qualification.
(g) No material adverse change in the financial condition of any
Obligor or in the quality, quantity or value of any Collateral shall have occurred since December
31, 2016.
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(h) No action, suit, investigation or proceeding pending or, to the
knowledge of any Borrower, threatened in any court or before any arbitrator or governmental
authority that could reasonably be expected to have a Material Adverse Effect shall have
occurred.
(i) Borrowers shall have paid all fees and expenses to be paid to
Agent and Lenders on the Closing Date.
For purposes of determining compliance with the conditions specified in this Section 6.1, each
Lender that has delivered a signature page to this Agreement shall be deemed to have consented
to, approved or accepted, or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable to a Lender or Agent unless Agent
shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
6.2. Conditions Precedent to All Credit Extensions. Agent, Issuing Bank and
Lenders shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or
grant any other accommodation to or for the benefit of Borrowers, unless the following
conditions are satisfied:
(a) no Default or Event of Default shall exist at the time of, or result
from, such funding, issuance or grant;
(b) the representations and warranties of the Obligors in the Loan
Documents shall be true and correct in all material respects on the date of, and upon giving effect
to, such funding, issuance or grant (except for representations and warranties that expressly
relate to an earlier date);
(c) All conditions precedent in any other Loan Document shall be
satisfied;
(d) No event shall have occurred or circumstance exist that has or
could reasonably be expected to have a Material Adverse Effect; and
(e) With respect to issuance of a Letter of Credit, the LC Conditions
shall be satisfied.
Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of
Credit or grant of an accommodation shall constitute a representation by Borrowers that the
foregoing conditions are satisfied on the date of such request and on the date of such funding,
issuance or grant. As an additional condition to any funding, issuance or grant, Agent shall have
received such other information, documents, instruments and agreements as it deems appropriate
in connection therewith.
SECTION 7. COLLATERAL
7.1. Grant of Security Interest. To secure the prompt payment and performance of
all Obligations, each Obligor hereby grants to Agent, for the benefit of Secured Parties, a
continuing security interest in and Lien upon all Property of such Obligor, including all of the
following Property, whether now owned or hereafter acquired, and wherever located:
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(a) all Accounts;
(b) all Chattel Paper, including electronic chattel paper;
(c) all Commercial Tort Claims, including those shown on Schedule
9.1.16;
(d) all Commodities Accounts, Deposit Accounts and Securities
Accounts, including all cash, checks and other evidences of payment, marketable securities,
securities entitlements, financial assets and other funds or Property held in or on deposit in any
of the foregoing, in each case, to the extent any of the proceeds of Collateral are deposited
therein;
(e) all Documents;
(f) all General Intangibles, including Intellectual Property;
(g) all Goods, including Inventory (including As-Extracted Collateral),
Equipment (including all Trucks and Machinery), and Fixtures;
(h) all Instruments;
(i) all Investment Property;
(j) all Letter-of-Credit Rights;
(k) all Supporting Obligations;
(l) all As-Extracted Collateral;
(m) all monies, whether or not in the possession or under the control of
Agent, a Lender, or a bailee or Affiliate of Agent or a Lender, including any Cash Collateral;
(n) all accessions to, substitutions for, and all replacements, products,
and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums
with respect to insurance policies, and claims against any Person for loss, damage or destruction
of any Collateral; and
(o) all books and records (including customer lists, files,
correspondence, tapes, computer programs, print-outs and computer records) pertaining to the
foregoing.
Notwithstanding the foregoing or any other provision of this Agreement or any other Loan
Document, “Collateral” shall not include any Excluded Property, in each case only for so long as
such item of Property continues to constitute Excluded Property, and thereafter shall constitute
Collateral.
The security interests and Liens granted in the Collateral are given in renewal, confirmation,
extension and modification, but not in extinguishment, of the security interests and Liens
previously granted in the Collateral pursuant to the Loan and Security Agreement, dated as of
August 31, 2012, among US Concrete, the other Borrower party thereto, the Guarantors party
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thereto, the Lenders party thereto and Agent, the Initial Loan Agreement (as defined in the Initial
Loan Agreement) and the Initial Loan Agreement; such prior security interests and Liens are not
extinguished hereby; and the making, perfection and priority of such prior security interests and
Liens shall continue in full force and effect.
7.2. Liens on Deposit Accounts, Securities Accounts and Commodity Accounts;
Cash Collateral.
7.2.1. Deposit Accounts, Securities Accounts and Commodity Accounts. To
further secure the prompt payment and performance of all Obligations, each Obligor hereby
grants to Agent a continuing security interest in and Lien upon all amounts credited to any
Deposit Account (including any sums in any blocked or lockbox accounts or in any accounts into
which such sums are swept) and all amounts credited to, and all financial assets and other funds
or Property held in, any Securities Account and/or Commodities Account of such Obligor. Each
Obligor hereby authorizes and directs each bank or other depository, securities intermediary or
commodities intermediary, as applicable, to deliver to Agent, upon request, all balances in any
Deposit Account maintained by such Obligor (other than Excluded Deposit Accounts) and all
Investment Property, funds, commodity contracts and other Property credited to or held in any
Securities Account or Commodity Accounts, as applicable (other than Excluded Securities and
Commodities Accounts), without inquiry into the authority or right of Agent to make such
request.
7.2.2. Cash Collateral. Cash Collateral may be invested, at Agent’s discretion
(and with the consent of Obligors, as long as no Event of Default exists), but Agent shall have no
duty to do so, regardless of any agreement or course of dealing with any Obligor, and shall have
no responsibility for any investment or loss. Each Obligor hereby grants to Agent, as security for
the Obligations, a security interest in all Cash Collateral held from time to time and all proceeds
thereof, whether held in a Cash Collateral Account or otherwise. Agent may apply Cash
Collateral to the payment of Obligations as they become due, in such order as Agent may elect.
Each Cash Collateral Account and all Cash Collateral shall be under the sole dominion and
control of Agent, and no Obligor or other Person shall have any right to any Cash Collateral,
until Full Payment of all Obligations.
7.3. Real Estate Collateral.
7.3.1. [Reserved].
7.3.2. Collateral Assignment of Leases. To further secure the prompt payment
and performance of all Obligations, each Obligor hereby transfers and assigns to Agent all of
such Obligor’s right, title and interest in, to and under all now or hereafter existing leases of real
Property to which such Obligor is a party, whether as lessor or lessee, and all extensions,
renewals, modifications and proceeds thereof.
7.4. Other Collateral.
7.4.1. Commercial Tort Claims. Borrowers shall promptly notify Agent in
writing if any Obligor has a Commercial Tort Claim (other than, as long as no Default or Event
of Default exists, a Commercial Tort Claim for less than $500,000), shall promptly amend
Schedule 9.1.16 to include such claim, and shall take such actions as Agent reasonably deems
appropriate to subject such claim to a duly perfected, first priority (or second priority, to the
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extent such Property is “priority collateral” (or similar term) for Permitted Secured Debt under
the Intercreditor Agreement entered into upon the incurrence of such Permitted Secured Debt)
Lien in favor of Agent.
7.4.2. Certain After-Acquired Collateral. Borrowers shall promptly notify
Agent in writing if, after the Closing Date, any Obligor obtains any interest in any Collateral
consisting of Commodity Accounts, Deposit Accounts, Securities Accounts, Chattel Paper,
Documents, Instruments, Intellectual Property, Investment Property or Letter-of-Credit Rights, in
each case with a nominal value in excess of $100,000 and, upon Agent’s request, shall promptly
take such actions as Agent deems appropriate to effect Agent’s duly perfected, first priority (or
second priority, to the extent such Property is “priority collateral” (or similar term) for Permitted
Secured Debt under the Intercreditor Agreement entered into upon the incurrence of such
Permitted Secured Debt) Lien upon such Collateral, including obtaining any appropriate
possession, control agreement or Lien Waiver. If any Collateral is in the possession of a third
party, at Agent’s request, Borrowers shall obtain an acknowledgment that such third party holds
the Collateral for the benefit of Agent.
7.5. No Assumption of Liability. The Lien on Collateral granted hereunder is given
as security only and shall not subject Agent or any Lender to, or in any way modify, any
obligation or liability of Obligors relating to any Collateral. In no event shall the grant of any
Lien under any Loan Document secure an Excluded Swap Obligation of the granting Obligor.
7.6. Further Assurances. All Liens granted to Agent under the Loan Documents are
for the benefit of Secured Parties. Promptly upon request, Borrowers shall deliver such
instruments and agreements, and shall take such actions, as Agent deems appropriate under
Applicable Law to evidence or perfect its Lien on any Collateral, or otherwise to give effect to
the intent of this Agreement. Each Obligor authorizes Agent to file any financing statement that
describes the Collateral as “all assets” or “all personal property” of such Obligor, or words to
similar effect, and ratifies any action taken by Agent before the Closing Date to effect or perfect
its Lien on any Collateral.
7.7. Additional Borrowers. Borrower Agent may designate any Subsidiary as a
Borrower under this Agreement and the other Loan Documents upon satisfaction of each of the
following conditions, provided that such Subsidiary owns Eligible Accounts, Eligible Inventory,
Eligible Trucks or Eligible Machinery:
(a) Borrower Agent shall have delivered to the Agent a written notice
requesting that such Subsidiary be designated as a new Borrower.
(b) The Agent shall have received a duly executed supplement to this
Agreement and any other applicable Loan Documents joining such Subsidiary as a
Borrower hereunder (such supplement to be in form and substance reasonably
satisfactory to the Agent) and such other documents or agreements as Agent may request
in its Permitted Discretion.
(c) Such Subsidiary shall deliver to the Agent such documents and certificates
referred to in Section 6.1(e) as may be reasonably requested by the Agent (it being
agreed by US Concrete that, if the designation of such Subsidiary as a Borrower obligates
the Agent or any Lender to comply with “know your customer” or similar identification
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procedures in circumstances where the necessary information is not already available to
it, US Concrete shall, promptly upon the request of the Agent or any Lender, supply such
documentation and other evidence as is reasonably requested by the Agent or any Lender
in order for the Agent or such Lender to carry out, and be satisfied it has complied with
the results of, all necessary “know your customer” or other similar checks under all
Applicable Law).
(d) If not previously granted to the Agent under this Agreement, as so
supplemented, and the Security Documents, such Subsidiary shall grant a security interest
in all Collateral owned by such Subsidiary by delivering to the Agent a duly executed
supplement to each applicable Security Document or such other documents as the Agent
shall reasonably deem appropriate for such purpose.
SECTION 8. COLLATERAL ADMINISTRATION
8.1. Borrowing Base Certificates. By the 20th day of each month (or on the
succeeding Business Day, if the applicable day is not a Business Day), Borrowers shall deliver to
Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate
prepared as of the close of business of the previous month, and during any Trigger Period
Borrowers shall also deliver to Agent (and Agent shall promptly deliver same to Lenders) a
Borrowing Base Certificate on a weekly basis, and in no event later than the 5th day of each
week, prepared as of the close of the last day of the preceding week; provided, however, that
during any period when an Event of Default exists, Borrowers shall deliver a Borrowing Base
Certificate as frequently as shall be requested by Agent. All calculations of Availability in any
Borrowing Base Certificate shall originally be made by Borrowers and certified by a Senior
Officer, provided that Agent may from time to time review and, in its Permitted Discretion, after
Required Reserve Notice (provided that in no event shall such a Required Reserve Notice be
required prior to or in connection with denying a request for a Revolver Loan due to insufficient
Availability resulting from an adjustment in the calculation of Availability as contemplated by
this Section), adjust any such calculation (a) to reflect its reasonable estimate of declines in value
of any Collateral, due to collections received in the Dominion Account or otherwise; (b) to adjust
advance rates to reflect changes in dilution, quality, mix and other factors affecting Collateral;
and (c) to the extent the calculation is not made in accordance with this Agreement or does not
accurately reflect the Availability Reserve, but in each case without duplication of (i) factors
taken into consideration in determining eligibility of the relevant Accounts, Inventory, Trucks
and Machinery and (ii) factors taken into consideration in determining the Availability Reserve.
8.2. Administration of Accounts.
8.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate
and complete records of its Accounts, including all payments and collections thereon, and shall
submit to Agent sales, collection, reconciliation and other reports in form satisfactory to Agent in
its Permitted Discretion, on such periodic basis as Agent may request in its Permitted Discretion.
Each Borrower shall also provide to Agent, on or before the 20th day of each month, a detailed
aged trial balance of all Accounts as of the end of the preceding month, specifying each
Account’s Account Debtor name and amount, invoice date and due date, showing any and such
other information as Agent may request from time to time in its Permitted Discretion. If
Accounts in an aggregate face amount of $1,000,000 or more cease to be Eligible Accounts,
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Borrowers shall notify Agent of such occurrence promptly (and in any event within one Business
Day) after any Borrower has knowledge thereof.
8.2.2. Taxes. If an Account of any Borrower includes a charge for any Taxes,
Agent is authorized, in its Permitted Discretion and after Required Reserve Notice to the
Borrower, to pay the amount thereof to the proper taxing authority for the account of such
Borrower and to charge Borrowers therefor; provided, however, that neither Agent nor Lenders
shall be liable for any Taxes that may be due from Borrowers or with respect to any Collateral.
8.2.3. Account Verification. Whether or not a Default or Event of Default
exists, Agent shall have the right at any time, in the name of Agent, any designee of Agent or any
Borrower, to verify the validity, amount or any other matter relating to any Accounts of
Borrowers by mail, telephone or otherwise. Prior to conducting any such verification, Agent
shall provide reasonable prior notice (as determined by Agent in its Permitted Discretion) thereof
to Borrower Agent, unless a Default exists or Agent determines that not providing such notice is
appropriate to protect the interests of the Lenders. Borrowers shall cooperate fully with Agent in
an effort to facilitate and promptly conclude any such verification process.
8.2.4. Maintenance of Dominion Account. Borrowers shall maintain
Dominion Accounts pursuant to lockbox or other arrangements acceptable to Agent in its
Permitted Discretion. Borrowers shall obtain an agreement (in form and substance satisfactory
to Agent in its Permitted Discretion) from each lockbox servicer and Dominion Account bank,
establishing Agent’s control over and Lien in the lockbox or Dominion Account, which may be
exercised by Agent during any FCCR Trigger Period, requiring immediate deposit of all
remittances received in the lockbox to a Dominion Account, and waiving offset rights of such
servicer or bank, except for customary administrative charges. If a Dominion Account is not
maintained with Bank of America, Agent may, during any FCCR Trigger Period, require
immediate transfer of all funds in such account to a Dominion Account maintained with Bank of
America. Agent and Lenders assume no responsibility to Borrowers for any lockbox
arrangement or Dominion Account, including any claim of accord and satisfaction or release
with respect to any Payment Items accepted by any bank.
8.2.5. Proceeds of Collateral. Borrowers shall request in writing and
otherwise take all necessary steps to ensure that all payments on Accounts or otherwise relating
to Collateral are made directly to a Dominion Account (or a lockbox relating to a Dominion
Account). If any Borrower or Subsidiary receives cash or Payment Items with respect to any
Collateral, it shall hold same in trust for Agent and promptly (not later than the next Business
Day) deposit same into a Dominion Account.
8.3. Administration of Inventory.
8.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate
and complete records of its Inventory, including costs and daily withdrawals and additions, and
shall submit to Agent inventory and reconciliation reports in form satisfactory to Agent, on such
periodic basis as Agent may request in its Permitted Discretion. Each Borrower shall conduct a
physical inventory at least once per calendar year (and on a more frequent basis if requested by
Agent when an Event of Default exists) and periodic cycle counts consistent with historical
practices, and, upon the request of Agent in its Permitted Discretion, shall provide to Agent a
report based on each such inventory and count promptly upon completion thereof, together with
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such supporting information as Agent may request in its Permitted Discretion. Agent may
participate in and observe each physical count at its own expense (unless an Event of Default
exists, then at the Borrowers’ sole expense).
8.3.2. Returns of Inventory. No Borrower shall return any Inventory to a
supplier, vendor or other Person, whether for cash, credit or otherwise, unless (a) such return is
in the Ordinary Course of Business; (b) no Default, Event of Default or Overadvance exists or
would result therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory
returned in any month exceeds $1,000,000; and (d) any payment received by a Borrower for a
return is promptly remitted to Agent for application to the Obligations.
8.3.3. Acquisition, Sale and Maintenance. Other than Inventory for chemical
admixtures utilized to manufacture ready-mix concrete (“Permitted Consignment Inventory”), no
Borrower shall acquire or accept any Inventory on consignment or approval, and shall take all
steps to assure that all Inventory is produced in accordance with Applicable Law, including the
FLSA. All Permitted Consignment Inventory shall be kept in separate containers, segregated
from all other Inventory of the Obligors. Permitted Consignment Inventory shall in no event
constitute Eligible Inventory. No Borrower shall sell any Inventory on consignment or approval
or any other basis under which the customer may return or require a Borrower to repurchase such
Inventory. Borrowers shall use, store and maintain all Inventory with reasonable care and
caution, in accordance with applicable standards of any insurance and in conformity with all
Applicable Law in all material respects, and shall make current rent payments (within applicable
grace periods provided for in leases) at all locations where any Collateral is located.
8.4. Administration of Equipment.
8.4.1. Records and Schedules of Equipment. Each Borrower shall keep
accurate and complete records of its Equipment, including kind, quality, quantity, cost,
acquisitions and dispositions thereof, and shall submit to Agent, on such periodic basis as Agent
may request, in its Permitted Discretion, a current schedule thereof, in form satisfactory to
Agent. Promptly upon request, Borrowers shall deliver to Agent evidence of their ownership or
interests in any Trucks and Machinery not constituting Excluded Trucks or Excluded Machinery
(or, (i) in the case of any Trucks or Machinery the certificates of title for which are in the
possession of the applicable Governmental Authority for lien recordation purposes, copies
thereof, or (ii) in the case of any Truck or Machinery, the ownership of which is evidenced by an
electronic title (ELT) in the records of the applicable Governmental Authority (in lieu of a
physical certificate of title), a copy of the notification with respect to such notation received from
such Governmental Authority, or (iii) in the case of any newly acquired Truck or Machinery in
respect of which an application for a certificate of title has been filed with the applicable
Governmental Authority but such certificate of title has not yet been issued, a copy of such
application and the receipt therefor issued by such Governmental Authority). In addition to and
not in limitation of the foregoing, Borrowers shall supply to Agent, within 20 days of the end of
each calendar month and at such other times as may be requested by Agent, in its Permitted
Discretion, the following:
(a) (i) a summary report of the Trucks, differentiating with respect to
Eligible Trucks and all other Trucks and otherwise in form and substance satisfactory to Agent in
its Permitted Discretion, indicating, if applicable, (A) changes in value and Depreciation
Amounts and (B) which Trucks were purchased or otherwise acquired during such period and (ii)
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a summary report of the Machinery, differentiating with respect to Eligible Machinery and all
other Machinery and otherwise in form and substance satisfactory to Agent in its Permitted
Discretion, indicating, if applicable, (A) changes in value and Depreciation Amounts and (B)
which Machinery was purchased or otherwise acquired during such period.
(b) a summary report of Eligible Trucks sold or contracted for sale
during such period and a summary report of Eligible Machinery sold or contracted for sale
during such period; and
(c) a report reconciling the records of the Borrowers against the most
recent reports of Agent with respect to the Eligible Trucks and Eligible Machinery.
Obligors shall also, within 60 days following the acquisition of any Truck or Machinery, give the
Agent notice of such Obligor’s acquisition of such Truck or Machinery and deliver to the Agent
the original of any certificate of title covering such Truck or Machinery or if a certificate of title
has not yet been issued in respect of such Truck or Machinery, a copy of an application for such
certificate of title and the receipt therefor provided by the applicable Governmental Authority
(or, in the case of any Truck or Machinery the certificate of title for which is in the possession of
the applicable Governmental Authority for lien recordation purposes, a copy thereof or, in the
case of any Truck or Machinery, the ownership of which is evidenced by an electronic title
(ELT) in the records of the applicable Governmental Authority (in lieu of a physical certificate
of title), a copy of the notification with respect to such notation received from such
Governmental Authority), and provide and/or file all other documents or instruments (including
any necessary powers of attorney) necessary to have the Lien of the Agent noted on any such
certificate of title or with the appropriate state office.
8.4.2. Dispositions of Equipment. No Borrower shall sell, lease or otherwise
dispose of any Equipment, without the prior written consent of Agent, other than (a) as permitted
under Section 10.2.5; (b) Equipment that is worn, damaged, obsolete or no longer used in the
Ordinary Course of Business; and (c) Equipment (other than Trucks and Machinery), the
disposition of which Equipment is permitted pursuant to the provisions of the definitive
documentation governing the Permitted Secured Debt (and subject to the Intercreditor
Agreement), if in effect at such time.
8.4.3. Condition of Equipment. The Equipment is in good operating condition
and repair, and all necessary replacements and repairs have been made so that the value and
operating efficiency of the Equipment is preserved at all times, reasonable wear and tear
excepted. Each Borrower shall use commercially reasonable efforts to ensure that the Equipment
is mechanically and structurally sound, and capable of performing the functions for which it was
designed, in accordance with manufacturer specifications. No Borrower shall permit any
Equipment to become affixed to real Property unless any landlord or mortgagee delivers a Lien
Waiver.
8.5. Administration of Deposit Accounts, Securities Accounts and Commodities
Accounts. Schedule 8.5 sets forth all Deposit Accounts (including all Dominion Accounts),
Securities Accounts and Commodity Accounts maintained by Obligors. Each Obligor shall take
all actions necessary to establish Agent’s control of each such Deposit Account, other than
(i) accounts exclusively used for payroll, payroll taxes or employee benefits, (ii) accounts
utilized and maintained in the Ordinary Course of Business, containing not more than $500,000
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in the aggregate for five consecutive Business Days, provided that on or before such fifth
Business Day, the applicable Obligor shall transfer all amounts on deposit therein exceeding
$500,000 to a Deposit Account covered by a Deposit Account Control Agreement, (iii) solely
during the first sixty (60) days after the consummation of a Permitted Acquisition and so long as
a FCCR Trigger Period is not then in effect, accounts acquired, or accounts of any Subsidiary
acquired, in each case in such Acquisition, (iv) if any Permitted Secured Debt is outstanding at
such time, accounts for the sole purpose of containing proceeds of “priority collateral” (or
similar term) of such Permitted Secured Debt under the Intercreditor Agreement (the “Permitted
Secured Debt Deposit Accounts”) and (v) accounts containing funds of the types described in
Section 10.2.2(e), each, an “Excluded Deposit Account.” Each Obligor shall take all actions
necessary to establish Agent’s control of each such Securities Account and Commodities
Account, other than (i) accounts utilized and maintained in the Ordinary Course of Business,
with an average monthly balance or value of less than $500,000 in the aggregate, (ii) solely
during the first sixty (60) days after the consummation of a Permitted Acquisition and so long as
a FCCR Trigger Period is not then in effect, accounts acquired, or accounts of any Subsidiary
acquired, in each case in such Acquisition, (iii) if any Permitted Secured Debt is outstanding at
such time, accounts for the sole purpose of containing proceeds of “priority collateral” (or
similar term) of such Permitted Secured Debt under the Intercreditor Agreement (the “Permitted
Secured Debt Securities and Commodities Accounts”) and (iv) accounts containing Investment
Property, funds or other Property of the types described in Section 10.2.2(e), each, an “Excluded
Securities and Commodities Account.” Each Obligor shall be the sole account holder of each
Deposit Account, Securities Account and Commodities Account and shall not allow any other
Person (other than Agent) to have control over a Deposit Account, Securities Account or
Commodities Account or any Property deposited or held therein, other than Permitted Secured
Debt Deposit Accounts and Permitted Secured Debt Securities and Commodities Accounts and
any Investment Property, funds, commodity contracts and other Property credited thereto or held
therein. Each Obligor shall promptly notify Agent of any opening or closing of a Deposit
Account, Securities Account or Commodities Account and will amend Schedule 8.5 to reflect
same.
8.6. General Provisions.
8.6.1. Location of Collateral. All tangible items of Collateral, other than
Inventory in transit, shall at all times be kept by Borrowers at the business locations set forth in
Schedule 8.6.1, except that Borrowers may (a) make sales or other dispositions of Collateral in
accordance with Section 10.2.5; (b) move Collateral to another location in the United States,
Canada or Puerto Rico listed on Schedule 8.6.1; and (c) upon 15 Business Days’ prior written
notice to Agent, move Collateral to another location in the United States, Canada and Puerto
Rico. Each Borrower may from time to time, with the consent of Agent, in its Permitted
Discretion, amend Schedule 8.6.1 to add additional locations in the United States, Canada and
Puerto Rico.
8.6.2. Insurance of Collateral; Condemnation Proceeds.
(a) Each Borrower shall maintain insurance with respect to the
Collateral, covering casualty, hazard, theft, malicious mischief, flood and other risks, in amounts,
with endorsements and with insurers (with a Best’s Financial Strength Rating of at least A_ VII,
unless otherwise approved by Agent) reasonably satisfactory to Agent. All proceeds, subject
however, to the provisions of the Intercreditor Agreement, under each policy shall be payable to
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Agent. Agent hereby agrees that self-insurance policies in effect on the Closing Date meet the
foregoing insurance requirements as to the type of insurance covered by such self-insurance.
From time to time upon request, Borrowers shall deliver to Agent the originals or certified copies
of its insurance policies and updated flood plain searches. Unless Agent shall agree otherwise,
each policy shall include satisfactory endorsements (i) showing Agent as lender loss payee;
(ii) requiring 30 days prior written notice to Agent in the event of cancellation of the policy for
any reason whatsoever; and (iii) specifying that the interest of Agent shall not be impaired or
invalidated by any act or neglect of any Borrower or the owner of the Property, nor by the
occupation of the premises for purposes more hazardous than are permitted by the policy. If any
Borrower fails to provide and pay for any insurance, Agent may, at its option, but shall not be
required to, procure the insurance and charge Borrowers therefor. Each Borrower agrees to
deliver to Agent, promptly as rendered, copies of all reports made to insurance companies.
While no Event of Default exists, Borrowers may settle, adjust or compromise any insurance
claim, as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent
shall be authorized to settle, adjust and compromise such claims.
(b) During a Trigger Period and subject to the Intercreditor Agreement
(if in effect at such time), any proceeds of insurance arising from ABL Priority Collateral (other
than proceeds from workers’ compensation or D&O insurance) and any awards arising from
condemnation of ABL Priority Collateral shall be applied to payment of the Revolver Loans, and
then to any other Obligations outstanding. When a Trigger Period is not in effect, any insurance
proceeds or condemnation awards relating to any loss or destruction of (i) Trucks that have a fair
market or book value (whichever is more) of at least $1,000,000, (ii) Inventory that has a fair
market or book value (whichever is more) of at least $1,000,000 or (iii) Machinery that has a fair
market or book value (whichever is more) of at least $1,000,000 shall be applied to payment of
the Revolver Loans, and then to any other Obligations outstanding. If any Permitted Secured
Debt is outstanding at such time, proceeds of and awards in respect of any “priority collateral”
(or similar term) of such Permitted Secured Debt under the Intercreditor Agreement shall be
applied as provided in the definitive documents governing such Permitted Secured Debt and in
compliance with the Intercreditor Agreement.
(c) If requested by Borrowers in writing within 30 days after Agent’s
receipt of any insurance proceeds or condemnation awards relating to any loss or destruction of
Equipment or Real Estate (in each case, to the extent any Permitted Secured Debt is outstanding
at such time, other than “priority collateral” (or similar term) of such Permitted Secured Debt
under and subject to the Intercreditor Agreement), Borrowers may use such proceeds or awards
to repair or replace such Equipment or Real Estate (and until so used, the proceeds shall be held
by Agent as Cash Collateral) as long as (i) no Default or Event of Default exists; (ii) such repair
or replacement is promptly undertaken and concluded, in accordance with plans satisfactory to
Agent; (iii) replacement buildings are constructed on the sites of the original casualties and are of
comparable size, quality and utility to the destroyed buildings; (iv) the repaired or replaced
Property is free of Liens, other than Permitted Liens that are not Purchase Money Liens;
(v) Borrowers comply with disbursement procedures for such repair or replacement as Agent
may reasonably require; and (vi) the aggregate amount of such proceeds or awards from any
single casualty or condemnation does not exceed $2,500,000.
8.6.3. Protection of Collateral. All expenses of protecting, storing,
warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with
respect to any Collateral (including any sale thereof), and all other payments required to be made
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by Agent to any Person to realize upon any Collateral, shall be borne and paid by Borrowers.
Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any
loss or damage thereto (except for reasonable care in its custody while Collateral is in Agent’s
actual possession), for any diminution in the value thereof, or for any act or default of any
warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at
Borrowers’ sole risk.
8.6.4. Defense of Title. Each Borrower shall use commercially reasonable
efforts to defend its title (and if applicable, the title of the relevant Guarantors) to Collateral and
Agent’s Liens therein against all Persons, claims and demands, except Permitted Liens.
8.7. Power of Attorney. Each Obligor hereby irrevocably constitutes and appoints
Agent (and all Persons designated by Agent) as such Obligor’s true and lawful attorney (and
agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may,
without notice and in either its or an Obligor’s name, but at the cost and expense of Borrowers:
(a) Endorse an Obligor’s name on any Payment Item or other proceeds
of Collateral (including proceeds of insurance) that come into Agent’s possession or control; and
(b) During an Event of Default, (i) notify any Account Debtors of the
assignment of their Accounts, demand and enforce payment of Accounts by legal proceedings or
otherwise, and generally exercise any rights and remedies with respect to Accounts; (ii) settle,
adjust, modify, compromise, discharge or release any Accounts or other Collateral, or any legal
proceedings brought to collect Accounts or Collateral; (iii) sell or assign any Accounts and other
Collateral upon such terms, for such amounts and at such times as Agent deems advisable;
(iv) collect, liquidate and receive balances in Deposit Accounts, Securities Accounts or
Commodities Accounts, and take control, in any manner, of proceeds of Collateral; (v) prepare,
file and sign an Obligor’s name to a proof of claim or other document in a bankruptcy of an
Account Debtor, or to any notice, assignment or satisfaction of Lien or similar document;
(vi) receive, open and dispose of mail addressed to an Obligor, and notify postal authorities to
deliver any such mail to an address designated by Agent; (vii) endorse any Chattel Paper,
Document, Instrument, ▇▇▇▇ of lading, or other document or agreement relating to any Accounts,
Inventory or other Collateral; (viii) use an Obligor’s stationery and sign its name to verifications
of Accounts and notices to Account Debtors; (ix) use information contained in any data
processing, electronic or information systems relating to Collateral; (x) make and adjust claims
under insurance policies; (xi) take any action as may be necessary or appropriate to obtain
payment under any letter of credit, banker’s acceptance or other instrument for which an Obligor
is a beneficiary; and (xii) take all other actions as Agent deems appropriate to fulfill any
Obligor’s obligations under the Loan Documents.
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1. General Representations and Warranties. To induce Agent and Lenders to
enter into this Agreement and to make available the Commitments, Loans and Letters of Credit,
each Obligor represents and warrants that:
9.1.1. Organization and Qualification. Each Obligor and Subsidiary is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, except to the extent otherwise described on Schedule 9.1.1 attached hereto. Each
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Obligor and Subsidiary is duly qualified, authorized to do business and in good standing as a
foreign corporation in each jurisdiction where failure to be so qualified could reasonably be
expected to have a Material Adverse Effect, except to the extent otherwise described on
Schedule 9.1.1 attached hereto.
9.1.2. Power and Authority. Each Obligor is duly authorized to execute,
deliver and perform its Loan Documents. The execution, delivery and performance of the Loan
Documents have been duly authorized by all necessary action, and do not (a) require any consent
or approval of any holders of Equity Interests of any Obligor, except those already obtained;
(b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under any
Applicable Law or Material Contract; or (d) result in or require the imposition of any Lien (other
than Permitted Liens) on any Obligor’s Property.
9.1.3. Enforceability. Each Loan Document is a legal, valid and binding
obligation of each Obligor party thereto, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally.
9.1.4. Capital Structure. Schedule 9.1.4 shows, as of the Closing Date, for
each Obligor and Subsidiary, its name, jurisdiction of organization, authorized and issued Equity
Interests, holders of its Equity Interests, and agreements binding on such holders with respect to
such Equity Interests. Except as disclosed on Schedule 9.1.4, since November 18, 2015 and as
of the Closing Date, no Obligor or Subsidiary has acquired any substantial assets from any other
Person nor been the surviving entity in a merger or combination. Each Obligor has good title to
its Equity Interests in its Subsidiaries, subject only to Permitted Liens, and all such Equity
Interests are duly issued, and, to the extent in the form of corporate stock, fully paid and non-
assessable. Except as described on Schedule 9.1.4, as of the Closing Date, there are no
outstanding purchase options, warrants, subscription rights, agreements to issue or sell,
convertible interests, phantom rights or powers of attorney relating to Equity Interests of any
Obligor or Subsidiary.
9.1.5. Title to Properties; Priority of Liens. Each Obligor and Subsidiary has
good and indefeasible title to (or valid leasehold interests in) all of its Real Estate necessary in
the Ordinary Course of Business, and good title to all of its personal Property, including all
Property reflected in any financial statements delivered to Agent or Lenders, in each case free of
Liens except Permitted Liens. Each Obligor and Subsidiary has paid and discharged all lawful
claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens. All
Liens of Agent in the Collateral are duly perfected, first priority Liens, subject only to Permitted
Liens that are expressly allowed to have priority over Agent’s Liens.
9.1.6. Accounts. Agent may rely, in determining which Accounts are Eligible
Accounts, on all statements and representations made by Borrowers with respect thereto.
Borrowers warrant, with respect to each Account at the time it is shown as an Eligible Account
in a Borrowing Base Certificate, that:
(a) it is genuine and in all respects what it purports to be, and is not
evidenced by a judgment;
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(b) it arises out of a completed, bona fide sale and delivery of goods or
rendition of services in the Ordinary Course of Business, and substantially in accordance with
any purchase order, contract or other document relating thereto;
(c) it is for a sum certain, maturing as stated in the invoice covering
such sale or rendition of services, a copy of which has been furnished or is available to Agent on
request;
(d) to Borrowers’ knowledge, it is not subject to any offset, Lien
(other than Agent’s Lien and, to the extent any Permitted Secured Debt is outstanding, the Liens
securing such Permitted Secured Debt), deduction, defense, dispute, counterclaim or other
adverse condition except as arising in the Ordinary Course of Business and disclosed to Agent;
and it is absolutely owing by the Account Debtor, without contingency in any respect;
(e) no purchase order, agreement, document or Applicable Law
restricts assignment of the Account to Agent (regardless of whether, under the UCC, the
restriction is ineffective), and the applicable Borrower is the sole payee or remittance party
shown on the invoice;
(f) no extension, compromise, settlement, modification, credit,
deduction or return has been authorized with respect to the Account, except discounts or
allowances granted in the Ordinary Course of Business for prompt payment that are reflected on
the face of the invoice related thereto and in the reports submitted to Agent hereunder; and
(g) to the best of Borrowers’ knowledge, (i) there are no facts or
circumstances that are reasonably likely to impair the enforceability or collectibility of such
Account; (ii) the Account Debtor had the capacity to contract when the Account arose, continues
to meet the applicable Borrower’s customary credit standards, is Solvent, is not contemplating or
subject to an Insolvency Proceeding, and has not failed, or suspended or ceased doing business;
and (iii) there are no proceedings or actions threatened or pending against any Account Debtor
that could reasonably be expected to have a material adverse effect on the Account Debtor’s
financial condition.
9.1.7. Financial Statements. The consolidated balance sheets, and related
statements of income, cash flow and shareholder’s equity, of US Concrete and Subsidiaries that
have been and are hereafter delivered to Agent and Lenders, are prepared in accordance with
GAAP, and fairly present in all material respects the financial positions and results of operations
of US Concrete and Subsidiaries at the dates and for the periods indicated, subject, in the case of
quarterly and monthly statements, to normal year-end adjustments and the absence of footnotes.
All projections delivered from time to time to Agent and Lenders have been prepared in good
faith, based on reasonable assumptions in light of the circumstances at such time. Since
December 31, 2016 there has been no change in the condition, financial or otherwise, of any
Borrower or Subsidiary that could reasonably be expected to have a Material Adverse Effect. No
financial statement delivered to Agent or Lenders at any time contains any untrue statement of a
material fact, nor fails to disclose any material fact necessary to make such statement not
materially misleading. Borrowers and their Subsidiaries are Solvent on a consolidated basis.
9.1.8. Surety Obligations. No Borrower or Subsidiary is obligated as surety or
indemnitor under any bond or other contract that assures payment or performance of any
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obligation of any Person, except as described on Schedule 9.1.8 attached hereto or as permitted
under Section 10.2.1.
9.1.9. Taxes. Except as described on Schedule 9.1.9 attached hereto, each
Borrower and Subsidiary has filed all federal, state and local tax returns and other reports that it
is required by law to file, and has paid, or made provision for the payment of, all Taxes upon it,
its income and its Properties that are due and payable, except to the extent being Properly
Contested and except for Taxes in respect of which the aggregate liability does not exceed
$1,000,000. The provision for Taxes on the books of each Borrower and Subsidiary is adequate
for all years not closed by applicable statutes, and for its current Fiscal Year.
9.1.10. Brokers. Except as may be payable to Agent, Lenders or their
respective Affiliates in connection with the Loan, there are no brokerage commissions, finder’s
fees or investment banking fees payable in connection with any transactions contemplated by the
Loan Documents.
9.1.11. Intellectual Property. Except as could not reasonably be expected to
have a Material Adverse Effect, each Obligor and Subsidiary owns or has the lawful right to use
all Intellectual Property necessary for the conduct of its business, without conflict with any rights
of others. As of the Closing Date, there is no pending or, to any Obligor’s knowledge,
threatened Intellectual Property Claim with respect to any Obligor, any Subsidiary or any of their
Property (including any Intellectual Property). Except as disclosed on Schedule 9.1.11, as of the
Closing Date, no Obligor or Subsidiary pays or owes any Royalty or other compensation to any
Person with respect to any Intellectual Property. All Intellectual Property owned, used or
licensed by, or otherwise subject to any interests of, any Obligor or Subsidiary as of the Closing
Date is shown on Schedule 9.1.11.
9.1.12. Governmental Approvals. Each Obligor and Subsidiary has, is in
compliance with, and is in good standing with respect to, all Governmental Approvals necessary
to conduct its business and to own, lease and operate its Properties, except where noncompliance
could not reasonably be expected to have a Material Adverse Effect. All necessary import,
export or other licenses, permits or certificates for the import or handling of any goods or other
Collateral have been procured and are in effect, and Obligors and Subsidiaries have complied
with all foreign and domestic laws with respect to the shipment and importation of any goods or
Collateral, except where noncompliance could not reasonably be expected to have a Material
Adverse Effect.
9.1.13. Compliance with Laws. Each Borrower and Subsidiary has duly
complied, and its Properties and business operations are in compliance, in all material respects
with all Applicable Law, except where noncompliance could not reasonably be expected to have
a Material Adverse Effect. As of the Closing Date, there have been no citations, notices or
orders of material noncompliance issued to any Borrower or Subsidiary under any Applicable
Law. No Inventory has been produced in violation of the FLSA.
9.1.14. Compliance with Environmental Laws. Except as disclosed on
Schedule 9.1.14, as of the Closing Date, no Borrower’s or Subsidiary’s present and, to their
knowledge, none of Borrower’s or Subsidiary’s past operations, Real Estate or other Properties
are subject to any federal, state or local investigation known to the Borrowers to determine
whether any remedial action is needed to address any environmental pollution, hazardous
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material or environmental clean-up. As of the Closing Date, no Borrower or Subsidiary has
received any Environmental Notice. No Borrower or Subsidiary has any contingent liability with
respect to any Environmental Release, environmental pollution or hazardous material on any
Real Estate now or previously owned, leased or operated by it, except as could not reasonably be
expected to have a Material Adverse Effect.
9.1.15. Burdensome Contracts. No Borrower or Subsidiary is a party or subject
to any contract, agreement or charter restriction that could reasonably be expected to have a
Material Adverse Effect. No Borrower or Subsidiary is party or subject to any Restrictive
Agreement, except as shown on Schedule 9.1.15 or as otherwise permitted under Section
10.2.3(b) or 10.2.13. No such Restrictive Agreement prohibits the execution, delivery or
performance of any Loan Document by an Obligor.
9.1.16. Litigation. Except as shown on Schedule 9.1.16, as of the Closing
Date, there are no proceedings or investigations pending or, to any Obligor’s knowledge,
threatened against any Obligor or Subsidiary, or any of their businesses, operations, Properties,
prospects or conditions, that (a) relate to any Loan Documents or transactions contemplated
thereby; or (b) could reasonably be expected to have a Material Adverse Effect if determined
adversely to any Obligor or Subsidiary. Except as shown on such Schedule, no Obligor has a
Commercial Tort Claim (other than, as long as no Default or Event of Default exists, a
Commercial Tort Claim for less than $100,000) as of the Closing Date. As of the Closing Date,
no Obligor or Subsidiary is in default with respect to any order, injunction or judgment of any
Governmental Authority.
9.1.17. No Defaults. No event or circumstance has occurred or exists that
constitutes a Default or Event of Default. No Obligor or Subsidiary is in default, and no event or
circumstance has occurred or exists that with the passage of time or giving of notice (i) would
constitute a material default, under any Material Contract described in clause (a), (b) or (c) of
the definition of “Material Contract” or (ii) as to any other Material Contract described in clause
(d) of the of the definition of “Material Contract”, permit the holder thereof to accelerate or
demand payment of such Debt. As of the Closing Date, there is no basis upon which any party
(other than an Obligor or Subsidiary) could terminate a Material Contract prior to its scheduled
termination date.
9.1.18. ERISA. Except as disclosed on Schedule 9.1.18:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code, and other federal and state laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable determination
letter or an opinion letter on which employers may reasonably rely from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of Borrowers, nothing has occurred which would prevent, or cause the loss of,
such qualification. Except as would not reasonably be expected to have a Material Adverse
Effect, each Obligor and, to the knowledge of Obligors, each ERISA Affiliate has met all
applicable requirements under the Code, ERISA and the Pension Protection Act of 2006 with
respect to each Plan, and no application for a waiver of the minimum funding standards or an
extension of any amortization period has been made with respect to any Plan.
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(b) As of the Closing Date, there are no pending or, to the knowledge
of Obligors, threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
To the knowledge of Obligors, there has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted in or could reasonably be
expected to have a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur, except as would not reasonably be expected to have a Material Adverse Effect; (ii) no
Pension Plan has any Unfunded Pension Liability, except as would not reasonably be expected to
have a Material Adverse Effect; (iii) no Obligor or, to the knowledge of Obligors, ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA), except as would not reasonably be expected to have a Material Adverse Effect; (iv) no
Obligor or, to the knowledge of Obligors, ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan,
except as would not reasonably be expected to have a Material Adverse Effect (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability); (v) no Obligor or ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA; and (vi) as of the most recent valuation date for any Pension
Plan or Multiemployer Plan, the funding target attainment percentage (as defined in Section
430(d)(2) of the Code) is at least 60%, and no Obligor or ERISA Affiliate knows of any fact or
circumstance that could reasonably be expected to cause the funding target attainment percentage
for any such plan to drop below 60% as of such date.
(d) With respect to any Foreign Plan, except as in the aggregate would
not reasonably be expected to have a Material Adverse Effect, (i) all employer and employee
contributions required by law or by the terms of the Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of
the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded
through insurance, or the book reserve established for any Foreign Plan, together with any
accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with
respect to all current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations in accordance
with applicable generally accepted accounting principles; and (iii) it has been registered as
required and has been maintained in good standing with applicable regulatory authorities.
9.1.19. Trade Relations. There exists no actual or threatened termination,
limitation or modification of any business relationship between any Borrower or Subsidiary and
any customer or supplier, or any group of customers or suppliers, which individually or in the
aggregate could reasonably be expected to result in a Material Adverse Effect. There exists no
condition or circumstance that could reasonably be expected to materially impair the ability of
any Borrower or Subsidiary to conduct its business at any time hereafter in substantially the
same manner as conducted on the Closing Date.
9.1.20. Labor Relations. Except as described on Schedule 9.1.20, no Borrower
or Subsidiary is party to or bound by any collective bargaining agreement. As of the Closing
Date, there are no material grievances, disputes or controversies with any union or other
organization of any Borrower’s or Subsidiary’s employees, or, to any Borrower’s knowledge,
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any asserted or threatened strikes, work stoppages or demands for collective bargaining.
Borrowers may update Schedule 9.1.20 (i) from time to time with Agent’s consent, not to be
unreasonably withheld, delayed or conditioned, (ii) to reflect Permitted Acquisitions, or (iii) to
reflect any new collective bargaining agreement.
9.1.21. Payable Practices. No Borrower or Subsidiary has made any material
change in its historical accounts payable practices from those in effect on the Initial Closing
Date.
9.1.22. Not a Regulated Entity. No Obligor is (a) an “investment company” or
a “person directly or indirectly controlled by or acting on behalf of an investment company”
within the meaning of the Investment Company Act of 1940; or (b) subject to regulation under
the Federal Power Act, the Interstate Commerce Act, any public utilities code or any other
Applicable Law regarding its authority to incur Debt.
9.1.23. Margin Stock. No Borrower or Subsidiary is engaged, principally or as
one of its important activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock. No Loan proceeds or Letters of Credit will be used by Borrowers
to purchase or carry, or to reduce or refinance any Debt incurred to purchase or carry, any
Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of
Governors.
9.1.24. OFAC. No Obligor, or, to the knowledge of any Obligor, any director,
officer, employee, agent, affiliate or representative thereof, is an individual or entity currently the
subject of any Sanctions. No Obligor is located, organized or resident in a Designated
Jurisdiction.
9.1.25. Anti-Corruption Laws. The Obligors and their Subsidiaries have
conducted their businesses in compliance with, in all material respects, the United States Foreign
Corrupt Practices Act of 1977, the UK ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, and other similar anti-corruption
legislation in other jurisdictions, and have instituted and maintained policies and procedures
designed to promote and achieve compliance with such laws.
9.1.26. EEA Financial Institutions. No Loan Party is an EEA Financial
Institution.
9.2. Complete Disclosure. No Loan Document contains any untrue statement of a
material fact, nor fails to disclose any material fact necessary to make the statements contained
therein not materially misleading. There is no fact or circumstance that any Obligor has failed to
disclose to Agent in writing that could reasonably be expected to have a Material Adverse Effect.
SECTION 10. COVENANTS AND CONTINUING AGREEMENTS
10.1. Affirmative Covenants. As long as any Commitments or Obligations are
outstanding, each Obligor shall, and shall cause each Subsidiary to:
10.1.1. Inspections; Appraisals.
(a) Permit Agent from time to time, subject (except when a Default or
Event of Default exists) to reasonable notice and normal business hours, to visit and inspect the
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Properties of any Obligor or Subsidiary, inspect, audit and make extracts from any Obligor’s or
Subsidiary’s books and records, and discuss with its officers, agents, advisors and independent
accountants such Obligor’s or Subsidiary’s business, financial condition, assets, prospects and
results of operations. Lenders may participate in any such visit or inspection, at their own
expense. Neither Agent nor any Lender shall have any duty to any Obligor to make any
inspection, nor to share any results of any inspection, appraisal or report with any Obligor.
Obligor’s acknowledge that all inspections, appraisals and reports are prepared by Agent and
Lenders for their purposes, and Obligors shall not be entitled to rely upon them.
(b) Reimburse Agent for all charges, costs and expenses of Agent in
connection with (i) examinations of any Obligor’s books and records or any other financial or
Collateral matters as Agent deems appropriate but, so long no Default or Event of Default has
occurred and is continuing, in no event more frequently than one time per Loan Year or two
times per Loan Year if a Trigger Period has occurred in such Loan Year; and (ii) all appraisals of
Inventory as Agent deems appropriate but, so long as no Default or Event of Default has
occurred and is continuing, no more frequently than one time per Loan Year (provided that the
foregoing shall not limit the number of appraisals of Inventory Agent may conduct at its own
expense in any Loan Year), (iii) appraisals of Equipment as Agent deems appropriate but, so
long no Default or Event of Default has occurred and is continuing, in no event more frequently
than one time per Loan Year; provided, however, that if an examination or appraisal is initiated
during a Default or Event of Default, all such charges, costs and expenses therefor shall be
reimbursed by Borrowers without regard to such limits. Borrowers agree to pay Agent’s then
standard charges for examination activities, including the standard charges of Agent’s internal
examination and appraisal groups, as well as the charges of any third party used for such
purposes.
10.1.2. Financial and Other Information. Keep adequate records and books of
account with respect to its business activities, in which proper entries are made in accordance
with GAAP reflecting all financial transactions; and furnish to Agent and Lenders:
(a) as soon as available, and in any event within 90 days after the close
of each Fiscal Year, balance sheets as of the end of such Fiscal Year and the related statements
of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for
US Concrete and Subsidiaries, which consolidated statements shall be audited and certified
(without qualification) by a firm of independent certified public accountants of recognized
standing selected by US Concrete and acceptable to Agent, and shall set forth in comparative
form corresponding figures for the preceding Fiscal Year and other information acceptable to
Agent;
(b) as soon as available, and in any event within 30 days after the end
of each month (but within 45 days after the last month in each Fiscal Quarter end), unaudited
balance sheets as of the end of such month and the related statements of income and a report of
the component figures comprising Fixed Charges for such month and for the portion of the Fiscal
Year then elapsed, on a consolidated basis for US Concrete and Subsidiaries, setting forth in
comparative form corresponding figures for the preceding Fiscal Year and certified by a Senior
Officer with relevant knowledge or responsibility of Borrower Agent as prepared in accordance
with GAAP and fairly presenting in all material respects the financial position and results of
operations for such month and period, subject to normal year-end adjustments and the absence of
footnotes;
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(c) concurrently with delivery of financial statements under clauses
(a) and (b) above, or more frequently if requested by Agent while a Default or Event of Default
exists, a Compliance Certificate executed by the Senior Officer with relevant knowledge or
responsibility of Borrower Agent;
(d) concurrently with delivery of financial statements under clause (a)
above, copies of all final management letters and other material reports submitted to Borrowers
by their accountants in connection with such financial statements;
(e) not later than 30 days after the end of each Fiscal Year, projections
of Borrowers’ consolidated (i) results of operations and Availability for the next Fiscal Year,
month by month, (ii) balance sheets and cash flow for the next Fiscal Year, quarter by quarter,
and (iii) balance sheet, results of operations, cash flow and Availability for the next three Fiscal
Years, year by year;
(f) at Agent’s request, a listing of each Borrower’s trade payables,
specifying the trade creditor and balance due, and a detailed trade payable aging, all in form
satisfactory to Agent;
(g) promptly after the sending or filing thereof, copies of any annual
report to be filed in connection with each Plan or Foreign Plan; and
(h) such other reports and information (financial or otherwise) as
Agent may request from time to time in its Permitted Discretion in connection with any
Collateral or any Borrower’s, Subsidiary’s or other Obligor’s financial condition or business.
10.1.3. Notices. Notify Agent and Lenders in writing, promptly after a
Borrower’s Senior Officer obtains knowledge thereof, of any of the following that affects an
Obligor: (a) the threat or commencement of any proceeding or investigation, whether or not
covered by insurance, if an adverse determination could have a Material Adverse Effect; (b) any
pending or threatened labor dispute, strike or walkout, or the expiration of any material labor
contract; (c) any default under or termination of a Material Contract; (d) the existence of any
Default or Event of Default; (e) any judgment in an amount exceeding $1,000,000; (f) the
assertion of any Intellectual Property Claim, if an adverse resolution could reasonably be
expected to have a Material Adverse Effect; (g) any violation or asserted violation of any
Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws), if an adverse
resolution could reasonably be expected to have a Material Adverse Effect; (h) any
Environmental Release by an Obligor or on any Property owned, leased or occupied by an
Obligor; or receipt of any Environmental Notice, except as could not reasonably be expected to
have a Material Adverse Effect; (i) the occurrence of any ERISA Event; (j) the discharge of or
any withdrawal or resignation by Borrowers’ independent accountants; or (k) any opening of a
new office or place of business, at least 15 days prior to such opening.
10.1.4. Landlord and Storage Agreements. Upon request, provide Agent with
copies of all existing agreements, and promptly after execution thereof provide Agent with
copies of all future agreements, between an Obligor and any landlord, warehouseman, processor,
shipper, bailee or other Person that owns any premises at which any Collateral may be kept or
that otherwise may possess or handle any Collateral.
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10.1.5. Compliance with Laws. Comply with all Applicable Laws, including
ERISA, Environmental Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding
collection and payment of Taxes, and maintain all Governmental Approvals necessary to the
ownership of its Properties or conduct of its business, unless failure to comply (other than failure
to comply with Anti-Terrorism Laws) or maintain could not reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental
Release occurs at or on any Properties of any Borrower or Subsidiary, it shall act promptly and
diligently to investigate and report (to the extent such Environmental Release is of a reportable
quantity) to Agent and all appropriate Governmental Authorities the extent of, and to make
appropriate remedial action to eliminate, such Environmental Release, whether or not directed to
do so by any Governmental Authority.
10.1.6. Taxes. Pay and discharge all Taxes prior to the date on which they
become delinquent or penalties attach, except (i) such Taxes as are being Properly Contested and
(ii) Taxes under Chapter 171 of the Texas Tax Code the State of Texas alleges are owed by
Borrowers in an amount not to exceed $3,000,000 at any time, so long as such alleged taxes
are being properly contested in good faith by appropriate proceedings promptly instituted and
diligently pursued.
10.1.7. Insurance. In addition to the insurance required hereunder with respect
to Collateral pursuant to Section 8.6.2, maintain (i) insurance with insurers (with a Best Rating
of at least A7, unless otherwise approved by Agent) or (ii) self insurance existing on the Closing
Date and other self insurance to the extent it is maintained in the Ordinary Course of Businesses
and by similarly situated Persons in the same industry of established reputation (provided,
however, that under all circumstances Borrowing Base Collateral shall be insured pursuant to the
foregoing clause (i), other than collision damage to Trucks or Machinery which may be covered
by self-insurance policies in effect on Closing Date), in each case satisfactory to Agent in its
Permitted Discretion, (a) with respect to the Properties and business of Borrowers and
Subsidiaries of such type (including workers’ compensation, larceny, embezzlement, or other
criminal misappropriation insurance), in such amounts, and with such coverages and deductibles
as are customary for companies similarly situated; and (b) business interruption insurance in an
amount not less than $5,000,000, with deductibles and subject to an insurance assignment
satisfactory to Agent.
10.1.8. Licenses. Keep each License affecting any material portion of the ABL
Priority Collateral (including the manufacture, distribution or disposition of Inventory) or any
other material Property of Borrowers and Subsidiaries in full force and effect; promptly notify
Agent of any proposed modification to any such License, or entry into any new License, in each
case at least 30 days prior to its effective date; pay all Royalties when due; and notify Agent of
any default or breach asserted by any Person to have occurred under any License.
10.1.9. Future Subsidiaries. Promptly notify Agent upon any Person becoming
a direct or indirect Subsidiary of any Obligor and, if such Person is not (x) a Foreign Subsidiary
or (y) a non-wholly owned Subsidiary that was indirectly acquired in a Permitted Acquisition (so
long as such Subsidiary was not formed (i) in contemplation of such Acquisition or such Person
becoming a Subsidiary following such Permitted Acquisition or (ii) to circumvent the
requirements of this Section 10.1.9), cause such Subsidiary to guaranty the Obligations in a
manner consistent with Section 14, and to execute and deliver such documents, instruments and
agreements and to take such other actions as Agent shall require to evidence and perfect a Lien
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in favor of Agent on all assets of such Person, including delivery of such legal opinions, in form
and substance satisfactory to Agent, as it shall deem appropriate (it being understood and agreed
that, for the avoidance of doubt, any Subsidiary that is a Guarantor as of the Closing Date shall
not cease to be a Guarantor as a result of it ceasing at any time to be wholly-owned, directly or
indirectly, by any Obligor).
10.1.10. Depository Bank. Maintain Bank of America, N.A. as its principal
depository bank, including for the maintenance of all operating, collection, disbursement and
other deposit accounts (except for Excluded Deposit Accounts); provided, however, the
foregoing requirements shall not include Cash Management Services.
10.2. Negative Covenants. As long as any Commitments or Obligations are
outstanding, each Obligor shall not, and shall cause each Subsidiary not to:
10.2.1. Permitted Debt. Create, incur, guarantee or suffer to exist any Debt,
except:
(a) the Obligations;
(b) Subordinated Debt;
(c) Permitted Purchase Money Debt;
(d) Borrowed Money (other than the Obligations, Subordinated Debt
and Permitted Purchase Money Debt), but only to the extent outstanding on the Closing Date and
not satisfied with proceeds of the initial Loans;
(e) Debt with respect to Bank Products incurred in the Ordinary
Course of Business;
(f) Debt that is in existence when a Person becomes a Subsidiary or
that is secured by an asset when acquired by a Borrower or Subsidiary, as long as such Debt was
not incurred in contemplation of such Person becoming a Subsidiary or such acquisition, and
does not exceed (i) $40,000,000 in the aggregate at any time plus (ii) to the extent such Debt
relates to a non-wholly owned Subsidiary that is indirectly acquired in a Permitted Acquisition
(and such Debt was not incurred in contemplation of such Person becoming a Subsidiary or such
acquisition) and such Subsidiary is not an Obligor hereunder, such Debt described in this clause
(ii) not to exceed $10,000,000 in the aggregate at any time;
(g) Permitted Contingent Obligations;
(h) Refinancing Debt as long as each Refinancing Condition is
satisfied;
(i) unsecured Debt of the type contemplated by Section 10.2.6(d),
provided that such Debt is subordinated to the Obligations on terms and conditions satisfactory
to Agent in its Permitted Discretion;
(j) Debt representing deferred compensation to employees of any
Obligor incurred in the Ordinary Course of Business;
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(k) Debt consisting of the financing of insurance premiums incurred in
the Ordinary Course of Business;
(l) Debt of the type and amount contemplated by Section
10.2.3(a)(iv);
(m) Debt that is not included in any of the other clauses of this Section
and does not exceed $15,000,000 in the aggregate at any time;
(n) the Existing Debt, as in effect on the Closing Date;
(o) Debt under Multiemployer Plans and Pension Plans;
(p) unsecured Debt representing obligations to pay the deferred
purchase price of assets, including any earn-out, to the extent incurred in connection with a
Permitted Acquisition;
(q) (i) the Senior Notes outstanding on the Closing Date, and (ii) other
unsecured Debt, in the case of (i) and (ii), so long as the aggregate outstanding principal amount
of the Debt incurred under this Section 10.2.1(q) shall not exceed an amount equal to the greater
of (x) $600,000,000 or (y) such amount so long as after giving effect to such incurrence of Debt
and the use of proceeds thereof the Interest Coverage Ratio, determined on a pro forma basis
immediately after giving effect to the incurrence of such unsecured Debt for the most recent
trailing twelve month period for which financial statements were, or were required to be,
delivered hereunder, is greater than or equal to 2.0 to 1.0; provided with respect to such
unsecured Debt described in clause (ii) above, such Debt does not mature prior to the date that is
ninety-one (91) days after the Revolver Termination Date. In each Compliance Certificate
delivered by Borrower Agent pursuant to Section 10.1.2(c), Borrower Agent shall certify as to
the amount of unsecured Debt incurred under this Section 10.2.1(q) since the date of the
previous Compliance Certificate delivered pursuant to Section 10.1.2(c) and shall demonstrate
compliance with the foregoing requirement;
(r) Debt of any Foreign Subsidiary; provided that the aggregate
outstanding principal amount of such Debt shall not exceed $25,000,000 at any time; and
(s) secured Debt of one or more Obligors in respect of any debt
facilities, debt securities or other form of debt financing (the “Permitted Secured Debt”);
provided that (i) the aggregate principal amount of the Debt incurred under this Section 10.2.1(s)
shall not exceed an amount equal to the greater of (x) $600,000,000 or (y) such amount so long
as after giving effect to such incurrence of Debt and the use of proceeds thereof the Senior
Secured Leverage Ratio, determined on a pro forma basis immediately after giving effect to the
incurrence of such secured Debt for the most recent trailing twelve month period for which
financial statements were, or were required to be, delivered hereunder, is equal to or less than
4.00 to 1.00, (ii) such Debt does not mature prior to the date that is ninety-one (91) days after the
Revolver Termination Date, (iii) no Person that is not an Obligor shall be a borrower, guarantor
or other obligor under such Debt, (iv) the obligations in respect thereof shall not be secured by
any Lien on any Property not securing the Obligations (other than the Property described in
clauses (v) and (vi) of the definition of Excluded Property or, with respect to any other Property,
unless such Property shall substantially concurrently become a part of the Collateral), (v) no
Default or Event of Default shall have occurred and be continuing or would exist immediately
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after giving effect to such incurrence, (vi) such Debt shall be subject to intercreditor provisions
in form and substance substantially similar to the Intercreditor Agreement (and substantially
consistent with the split collateral structure set forth in the Intercreditor Agreement) at all times
such Debt is outstanding, (vii) any such Debt shall not require or permit amortization or similar
scheduled payments in an amount in excess of 5% per annum prior to the Revolver Termination
Date, and (viii) such Indebtedness shall not have mandatory redemption features (other than
customary asset sale, insurance and condemnation proceeds events, changed of control offers or
events of default or, if in the form of term loans, excess cash flow and debt issuance mandatory
prepayments) that could result in redemptions of such Debt prior to the date that is ninety-one
(91) days after the Revolver Termination Date.
10.2.2. Permitted Liens. Create or suffer to exist any Lien upon any of its
Property, except the following (collectively, “Permitted Liens”):
(a) Liens in favor of Agent and Liens in favor of the holders (or any
agent, representative or trustee for such holders) of any Permitted Secured Debt, and Liens in
favor of the holders (or any agent, representative or trustee for such holders) of any Refinancing
Debt incurred in respect of such Permitted Secured Debt in compliance with the Refinancing
Conditions (in each case, the priority of which shall be as provided for in the Intercreditor
Agreement or shall be more favorable to Agent and Secured Parties);
(b) Purchase Money Liens securing Permitted Purchase Money Debt;
(c) Liens for Taxes not yet due or being Properly Contested;
(d) statutory Liens (other than Liens for Taxes or imposed under
ERISA) and similar contractual Liens, which are not perfected and arise in the Ordinary Course
of Business, but only if (i) payment of the obligations secured thereby is not yet due or is being
Properly Contested, and (ii) no enforcement action (including foreclosure) is being taken with
respect to such Lien or against the Collateral subject to such Lien, and (iii) such Liens do not
materially impair the value or use of the Property or materially impair operation of the business
of any Borrower or Subsidiary;
(e) Liens incurred or deposits made in the Ordinary Course of
Business to secure the performance of tenders, bids, leases, contracts (except those relating to
Borrowed Money), statutory obligations and other similar obligations, or arising as a result of
progress payments under government contracts or Liens in favor of issuers of surety bonds;
(f) Liens arising in the Ordinary Course of Business that are subject to
Lien Waivers;
(g) Liens arising by virtue of a judgment or judicial order against any
Borrower or Subsidiary, or any Property of a Borrower or Subsidiary, as long as such Liens are
(i) in existence for less than 20 consecutive days or being Properly Contested, and (ii) at all times
junior to Agent’s Liens;
(h) easements, rights-of-way, restrictions, covenants or other
agreements of record, and other similar charges or encumbrances on Real Estate, that do not
secure any monetary obligation and do not interfere with the Ordinary Course of Business;
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(i) normal and customary rights of setoff upon deposits in favor of
depository institutions, and Liens of a collecting bank on Payment Items in the course of
collection;
(j) Liens affecting the fee title of any leased Real Estate, which are
created by a party other than an Obligor;
(k) encumbrances arising under leases, subleases, licenses or
sublicenses of Real Estate that do not, in the aggregate, materially detract from the value of such
Real Estate or interfere with the ordinary conduct of the business conducted and proposed to be
conducted at such Real Estate;
(l) financing statements with respect to a lessor’s rights in and to
personal property leased to such Person in the Ordinary Course of such Person’s Business other
than through a Capital Lease;
(m) Liens securing Debt permitted under Section 10.2.1(f), but only on
the Subsidiary or assets so acquired and improvements, repairs, additions, attachments and
accessions thereto, parts, replacements and substitutions therefor, and products and proceeds
thereof;
(n) Liens securing Debt permitted under Section 10.2.1(k), provided
that such Liens are limited to securing only the unpaid premiums under the applicable insurance
policy and the only property subject to such Lien is the policy financed;
(o) Liens securing obligations in an aggregate amount not to exceed
$3,000,000 at any time;
(p) Liens resulting from the deposit of funds or evidences of Debt in
trust for the purpose of defeasing or discharging Debt of a Borrower or a Subsidiary so long as
such defeasance or discharge is otherwise permitted under this Agreement;
(q) non-exclusive Licenses or sub-Licenses granted by any Obligor in
the Ordinary Course of Business;
(r) Liens attaching solely to ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits or
installment payments in connection with any letter of intent or purchase agreement in connection
with a Permitted Acquisition;
(s) Liens arising by operation of law under Article 2 of the UCC in
favor of reclaiming seller of goods or buyer of goods;
(t) Liens arising from filing UCC financing statements relating solely
to leases not prohibited by this Agreement;
(u) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the importation of goods;
(v) existing Liens shown on Schedule 10.2.2;
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(w) Liens upon specific items of Inventory or other goods and proceeds
of any Borrower or Subsidiary securing such Borrower or Subsidiary’s obligation in respect of
bankers’ acceptances issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such Inventory or other goods;
(x) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into in the ordinary course of business;
(y) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of any Borrower or Subsidiary relating to such
property or assets;
(z) (i) with respect to real Property owned by any Borrower or
Subsidiary, Liens encumbering any leases or subleases of real Property leased to a third party
and not incurred in connection with Indebtedness, which do not materially distract from the use
of the property subject thereto and that do not, in the aggregate, impair in any material respect
the ordinary conduct of the business of the Borrowers and Subsidiaries, taken as a whole, and (ii)
with respect to any real Property leased by any Borrower or Subsidiary any Liens on the title of
such property not created by any Borrower or Subsidiary, as applicable;
(aa) Liens (i) on advances of cash or Cash Equivalents in favor of the
seller of any asset to be acquired by any Borrower or Subsidiary to be applied against the
purchase price for such assets or (ii) consisting of an agreement to dispose of property in a
disposition permitted hereunder; and
(bb) Liens securing Debt permitted under Section 10.2.1(m), provided
that such Liens shall not be secured by any ABL Priority Collateral or any Property that is part of
or included in the Borrowing Base unless, in each case, such Lien is subordinated in right of
security to the Obligations pursuant to subordination or similar provisions in form and substance
acceptable to Agent.
10.2.3. Distributions; Upstream Payments. (a) Declare or make any
Distributions, except (i) Upstream Payments; (ii) US Concrete may declare and pay Distributions
with respect to its Equity Interests payable solely in additional shares of its Equity Interests
(other than Disqualified Equity Interests); (iii) US Concrete may make Distributions, not
exceeding $10,000,000 during any Fiscal Year, pursuant to and in accordance with stock option
plans or other benefit plans for management or employees of US Concrete and its Subsidiaries or
rights plans for holders of its Equity Interests; (iv) a Borrower may make payments in cash or
issue notes to former employees, officers or directors of such Borrower in connection with the
redemption or repurchase of Equity Interests in such Borrower from such former employees,
officers or directors upon termination of employment with such Borrower or their death or
disability in an aggregate amount not to exceed $2,500,000 and provided such notes are
subordinate to the Obligations in form and substance reasonably acceptable to the Agent; (v)
Subsidiaries may make Distributions ratably with respect to their Equity Interests; (vi)
Distributions in respect of fractional shares; (vii) other Distributions (including the repurchase or
retirement of warrants existing as of the Initial Closing Date with respect to US Concrete’s
Equity Interests) so long as all of the Distribution Conditions are satisfied with respect thereto;
and (viii) Distributions in connection with US Concrete’s purchase or redemption of its Equity
Interests so long as all of the Stock Redemption Conditions are satisfied with respect thereto, or
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(b) create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make
any Upstream Payment, except for restrictions under the Loan Documents, under Applicable
Law, in effect on the Closing Date as shown on Schedule 9.1.15 or under an agreement
permitted under Section 10.2.13.
10.2.4. Restricted Investments. Make any Restricted Investment.
10.2.5. Disposition of Assets. Make any Asset Disposition, except (a) a
Permitted Asset Disposition; (b) a disposition of Equipment under Section 8.4.2(b) or (c); (c) a
transfer of Property by a Subsidiary or Obligor to an Obligor; or (d) the disposition of the Real
Estate listed on Schedule 10.2.5.
10.2.6. Loans. Make any loans or other advances of money to any Person,
except (a) advances to an officer or employee for salary, travel expenses, commissions and
similar items in the Ordinary Course of Business up to an aggregate maximum amount of
$500,000 in the aggregate at any one time outstanding; (b) prepaid expenses and extensions of
trade credit made in the Ordinary Course of Business; (c) deposits with financial institutions
permitted hereunder; and (d) intercompany loans by an Obligor to another Obligor, provided
each Obligor hereby agrees and acknowledges payment of such intercompany loans are subject
to the subordination provisions of Section 5.10.5 and Section 14.7 hereof.
10.2.7. Restrictions on Payment of Certain Debt. Make any payments (whether
voluntary or mandatory, or a prepayment, purchase, redemption, retirement, defeasance or
acquisition; each, for purposes of this Section 10.2.7, a “payment”) with respect to any (a)
Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but only
to the extent permitted under any subordination agreement relating to such Debt (and a Senior
Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the
date of payment, that all conditions under such agreement have been satisfied); or (b) other
Borrowed Money, other than, (i) payments of intercompany loans by an Obligor to another
Obligor, (ii) as long as no Default or Event of Default exists, payments made from the proceeds
of, or by conversion or exchange for or into, Refinancing Debt, (iii) payment of regularly
scheduled interest and principal payments and mandatory prepayments (including customary
excess cash flow prepayments) as and when due in respect of any Permitted Secured Debt, (iv)
any Purchase Money Debt to the extent such payment is made from the proceeds of an Asset
Disposition of the underlying asset permitted under Section 10.2.5, (v) any scheduled payments
under the agreements evidencing such Borrowed Money as in effect on the First Amendment
Closing Date or, with respect to the Senior Notes, as in effect on the Closing Date (or as
amended thereafter with the consent of Agent or as amended in accordance with
Section 10.2.18), and (vi) other payments on Borrowed Money so long as all of the Prepayment
Conditions are satisfied with respect thereto.
10.2.8. Fundamental Changes. Change its name or conduct business under any
fictitious name; change its tax, charter or other organizational identification number; change its
form or state of organization; liquidate, wind up its affairs or dissolve itself; or merge, combine
or consolidate with any Person, whether in a single transaction or in a series of related
transactions, except (a) that any Obligor or Subsidiary (other than US Concrete) may merge into
or consolidate with a Borrower in a transaction in which a Borrower (including US Concrete) is
the surviving entity; (b) that any Obligor (other than a Borrower) or Subsidiary (other than a
Borrower) may merge with or consolidate with any Obligor which is not a Borrower; (c) (i) that
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any Subsidiary (other than a Borrower) of an Obligor may liquidate or dissolve if its assets are
transferred or otherwise distributed to such Obligor or (ii) that any Borrower (other than US
Concrete) may liquidate or dissolve if its assets are transferred or otherwise distributed to a
Borrower (including US Concrete); (d) that any Subsidiary that is not an Obligor may merge
with any other Subsidiary that is not an Obligor, or may liquidate or dissolve if its assets are
transferred or otherwise distributed to a Subsidiary that is not an Obligor; (e) for Permitted
Acquisitions; or (f) that an Obligor or Subsidiary may change its name, conduct business under a
fictitious name, change its tax, charter or organizational identification number or change its form
or state of organization, provided that written notice of such event under this clause (f) is
delivered to Agent not less than fifteen (15) days after the occurrence of such event.
10.2.9. Subsidiaries. (a) Form or acquire any Subsidiary after the Closing Date,
except in accordance with Section 10.1.9; or (b) permit any existing Subsidiary to issue any
additional Equity Interests except non-voting shares to management or director’s qualifying
shares unless such Subsidiary is a wholly-owned Subsidiary of an Obligor; provided, the
restriction in this clause (b) shall not apply to an existing, non-wholly owned Subsidiary that is
indirectly acquired in a Permitted Acquisition so long as such Subsidiary was not formed in
contemplation of such Acquisition or such Person becoming a Subsidiary following such
Permitted Acquisition.
10.2.10. Organic Documents. Amend, modify or otherwise change any of its
Organic Documents, except (i) in the case of any amendment, modification or other change
relating to a transaction subject to Section 10.2.8, such transaction is permitted thereunder; or (ii)
otherwise in a manner not adverse to the interests of the Lenders.
10.2.11. Tax Consolidation. File or consent to the filing of any consolidated
income tax return with any Person other than Borrowers and Subsidiaries.
10.2.12. Accounting Changes. Make any material change in accounting
treatment or reporting practices, except as required by GAAP and in accordance with Section
1.2; or change its Fiscal Year.
10.2.13. Restrictive Agreements. Become a party to any Restrictive Agreement,
except a Restrictive Agreement (a) that was in effect on the Initial Closing Date (including those
shown on Schedule 9.1.15); (b) relating to secured Debt permitted hereunder, as long as the
restrictions apply only to collateral for such Debt; (c) constituting customary restrictions on
assignment in leases, licenses and other contracts; (d) that is a Senior Notes Document or the
definitive documents governing Permitted Secured Debt; (e) relating to an acquisition or
disposition of Property otherwise permitted under this Agreement; (f) the relevant restrictions of
which are not, taken as a whole, materially more restrictive than the corresponding restrictions in
this Agreement; (g) applicable to a Person or Property at the time such Person or Property is
acquired by an Obligor or a Subsidiary, if such agreement was not entered into in contemplation
of such acquisition and the relevant restrictions of which, taken as a whole, are not materially
more restrictive then the corresponding restrictions in this Agreement; (h) that is a joint venture
agreement or similar agreement entered into the Ordinary Course of Business; or (i) that
replaces, renews, extends, refinances, refunds, amends or otherwise modifies any agreement
permitted under this Section 10.2.13 if the relevant restrictions in such new agreement are not
materially more restrictive, taken as a whole, than those in the original agreement.
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10.2.14. Hedging Agreements. Enter into any Hedging Agreement, except to
hedge risks arising in the Ordinary Course of Business and not for speculative purposes.
10.2.15. Conduct of Business. Engage in any business, other than its business as
conducted on the Closing Date and any activities incidental, similar, related, complementary or
corollary thereto or a reasonable extension thereof.
10.2.16. Affiliate Transactions. Enter into or be party to any transaction with an
Affiliate, except (a) transactions expressly permitted by the Loan Documents; (b) payment of
reasonable compensation to officers and employees for services actually rendered, and payment
of customary directors’ fees and indemnities; (c) transactions solely among Obligors;
(d) transactions with Affiliates that were consummated prior to the Closing Date, as shown on
Schedule 10.2.16; (e) transactions with Affiliates in the Ordinary Course of Business, upon fair
and reasonable terms no less favorable than would be obtained in a comparable arm’s-length
transaction with a non-Affiliate; and (f) transactions permitted under Section 10.2.8.
10.2.17. [Reserved].
10.2.18. Amendments to Material Contracts. (a) Amend, supplement or
otherwise modify any document, instrument or agreement relating to any Subordinated Debt, if
such modification (i) increases the principal balance of such Debt, or increases any required
payment of principal or interest; (ii) accelerates the date on which any installment of principal or
any interest is due, or adds any additional redemption, put or prepayment provisions;
(iii) shortens the final maturity date or otherwise accelerates or increases amortization;
(iv) increases the interest rate; (v) increases or adds any fees or charges; (vi) modifies any
covenant in a manner or adds any representation, covenant or default that is more onerous or
restrictive in any material respect for any Borrower or Subsidiary, or that is otherwise materially
adverse to any Borrower, any Subsidiary of a Borrower or Lenders; or (vii) results in the
Obligations not being fully benefited by the subordination provisions of any documentation
relating to Subordinated Debt, or (b) amend, supplement or otherwise modify the Senior Notes
Agreement or any document governing any Permitted Secured Debt, if (i) such Debt, as
modified, (x) would not satisfy the Refinancing Conditions or would have a maturity date prior
to the date that is ninety-one (91) days after the Revolver Termination Date or (y) would require
the payment of any principal amount of such Debt prior to the Revolver Termination Date in any
circumstance not required under the Senior Notes Agreement as in effect on the Closing Date or
in a manner inconsistent with any Intercreditor Agreement, the Refinancing Conditions, Section
10.2.1(s) or Section 10.2.7; (ii) such modifications would result in the Obligations not
constituting “Permitted Indebtedness” (or similar term) under the Senior Notes Agreement or
any agreement governing any Permitted Secured Debt, or (iii) such modifications would result in
the credit facility evidenced by this Agreement not constituting “Credit Facilities” under the
Senior Notes Agreement.
10.3. Financial Covenants. As long as any Commitments or Obligations are
outstanding, Borrowers shall:
10.3.1. Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio of at least 1.0 to 1.0 for each period of twelve calendar months while a FCCR Trigger
Period is in effect, commencing with the most recent such period for which financial statements
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were, or were required to be, delivered hereunder prior to the first day of such FCCR Trigger
Period.
SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
11.1. Events of Default. Each of the following shall be an “Event of Default” if it
occurs for any reason whatsoever, whether voluntary or involuntary, by operation of law or
otherwise:
(a) An Obligor fails to pay (i) any Obligations comprising interest or
principal on the Loans, LC Obligations or fees pursuant to Section 3.2 when due (whether at
stated maturity, on demand, upon acceleration or otherwise), or (ii) any other Obligations within
three (3) days of the applicable due date;
(b) Any representation, warranty or other written statement of an
Obligor made in connection with any Loan Documents or transactions contemplated thereby is
incorrect or misleading in any material respect when given; provided, however, (i) an incorrect
or misleading representation, warranty or other written statement relating specifically to
Accounts or Inventory shall not constitute an Event of Default unless it relates to Accounts with
an aggregate Value of greater than $400,000 or Inventory with an aggregate Value of greater
than $400,000, as applicable, and (ii) an incorrect or misleading representation, warranty or other
written statement relating specifically to Trucks or Machinery shall not constitute an Event of
Default unless it relates to Trucks with an aggregate Value of greater than $750,000 or
Machinery with an aggregate Value of greater than $750,000; provided, further, however, the
foregoing proviso shall not apply to any willful breach by an Obligor;
(c) An Obligor breaches or fail to perform any covenant contained in
Section 7.2, 7.4, 7.6, 8.1, 8.2.4, 8.2.5, 8.6.2, 10.1.1, 10.1.2, 10.1.10, 10.2 or 10.3;
(d) An Obligor breaches or fails to perform any other covenant
contained in any Loan Documents, and such breach or failure is not cured within 30 days after a
Senior Officer of such Obligor has knowledge thereof or receives notice thereof from Agent,
whichever is sooner; provided, however, that such notice and opportunity to cure shall not apply
if the breach or failure to perform is not capable of being cured within such period or is a willful
breach by an Obligor;
(e) (i) A Guarantor repudiates, revokes or attempts to revoke its
Guaranty; (ii) an Obligor denies or contests the validity or enforceability of any Loan Documents
or Obligations, or the perfection or priority of any Lien granted to Agent; or (iii) any Loan
Document ceases to be in full force or effect for any reason (other than a waiver or release by
Agent and Lenders and other than, in each case, with respect to Collateral (except for Collateral
comprising Trucks, Accounts, Inventory or Machinery) having an aggregate Value not in excess
of $7,500,000, Trucks having an aggregate Value not in excess of $750,000 or Machinery having
an aggregate Value not in excess of $750,000), provided, however, in the case of the foregoing
clause (iii), such occurrence shall not be deemed an Event of Default unless such occurrence is
not cured within three (3) Business Days of such occurrence; provided, further, however, such
opportunity to cure shall not apply if such occurrence is not capable of being cured within such
period or is the result of a willful act by an Obligor;
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(f) Any breach or default of an Obligor occurs under any Hedging
Agreement, or under any instrument or agreement to which it is a party or by which it or any of
its Properties is bound, relating to Debt (other than the Obligations) in an aggregate principal
amount in excess of $7,500,000, if the maturity of or any payment with respect to such Debt may
be accelerated or demanded due to such breach;
(g) Any judgment or order for the payment of money is entered
against an Obligor in an amount that exceeds, individually or cumulatively with all unsatisfied
judgments or orders against all Obligors, $7,500,000 (net of insurance coverage therefor that has
not been denied by the insurer), unless a stay of enforcement of such judgment or order is in
effect, by reason of a pending appeal or otherwise;
(h) A loss, theft, damage or destruction occurs with respect to any
Collateral if the amount not covered by insurance exceeds $7,500,000;
(i) An Obligor is enjoined, restrained or in any way prevented by any
Governmental Authority from conducting any material part of its business; an Obligor suffers the
loss, revocation or termination of any material license, permit, lease or agreement necessary to
its business; there is a cessation of any material part of an Obligor’s business for a material
period of time; any material Collateral or Property of an Obligor is taken or impaired through
condemnation; an Obligor agrees to or commences any liquidation, dissolution or winding up of
its affairs; or an Obligor is not Solvent;
(j) An Insolvency Proceeding is commenced by an Obligor; an
Obligor makes an offer of settlement, extension or composition to its unsecured creditors
generally; a trustee is appointed to take possession of any substantial Property of or to operate
any of the business of an Obligor; or an Insolvency Proceeding is commenced against an Obligor
and: the Obligor consents to institution of the proceeding, the petition commencing the
proceeding is not timely contested by the Obligor, the petition is not dismissed within 60 days
after filing, or an order for relief is entered in the proceeding;
(k) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan that has resulted or could reasonably be expected to result in liability of an
Obligor to a Pension Plan, Multiemployer Plan or PBGC, or that constitutes grounds for
appointment of a trustee for or termination by the PBGC of any Pension Plan or Multiemployer
Plan, and that when taken together with all other ERISA Events that have occurred, results in
liability of Obligors, other than liability that has been satisfied or otherwise is no longer
outstanding, exceeding $15,000,000 in the aggregate at any one time; an Obligor or ERISA
Affiliate fails to pay when due any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan, except as would not be reasonably
expected to result in a Material Adverse Effect; or any event similar to the foregoing occurs or
exists with respect to a Foreign Plan, except as would not reasonably be expected to result in a
Material Adverse Effect;
(l) An Obligor or any of its Senior Officers is criminally indicted or
convicted for (i) a felony committed in the conduct of the Obligor’s business, or (ii) violating
any state or federal law (including the Controlled Substances Act, Money Laundering Control
Act of 1986 and Illegal Exportation of War Materials Act) that could lead to forfeiture of any
material Property or any Collateral;
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(m) A Change in Control occurs; or
(n) The occurrence of any “Event of Default” under and as defined in
the Senior Notes Agreement or any document governing any Permitted Secured Debt.
11.2. Remedies upon Default. If an Event of Default described in Section 11.1(j)
occurs with respect to any Obligor, then to the extent permitted by Applicable Law, all
Obligations (other than Secured Bank Product Obligations) shall become automatically due and
payable and all Commitments shall terminate, without any action by Agent or notice of any kind.
In addition, or if any other Event of Default exists, Agent may in its discretion (and shall upon
written direction of Required Lenders) do any one or more of the following from time to time:
(a) declare any Obligations (other than Secured Bank Product
Obligations) immediately due and payable, whereupon they shall be due and payable without
diligence, presentment, demand, protest or notice of any kind, all of which are hereby waived by
Borrowers to the fullest extent permitted by law;
(b) terminate, reduce or condition any Commitment, or make any
adjustment to the Borrowing Base; provided, Agent may not require Issuing Bank or any Lender
to fund a Loan or issue a Letter of Credit during the continuance of an Event of Default or
otherwise take action pursuant to this clause (b) that would require a Lender’s consent under
Section 15.1.1 unless such requisite consents have been obtained;
(c) require Obligors to Cash Collateralize LC Obligations, Secured
Bank Product Obligations and other Obligations that are contingent or not yet due and payable,
and, if Obligors fail promptly to deposit such Cash Collateral, Agent may (and shall upon the
direction of Required Lenders) advance the required Cash Collateral as Revolver Loans (whether
or not an Overadvance exists or is created thereby, or the conditions in Section 6 are satisfied);
and
(d) exercise any other rights or remedies afforded under any
agreement, by law, at equity or otherwise, including the rights and remedies of a secured party
under the UCC. Such rights and remedies include the rights to (i) take possession of any
Collateral; (ii) require Obligors to assemble Collateral, at Borrowers’ expense, and make it
available to Agent at a place designated by Agent; (iii) enter any premises where Collateral is
located and store Collateral on such premises until sold (and if the premises are owned or leased
by an Obligor, Obligors agree not to charge for such storage); and (iv) sell or otherwise dispose
of any Collateral in its then condition, or after any further manufacturing or processing thereof,
at public or private sale, with such notice as may be required by Applicable Law, in lots or in
bulk, at such locations, all as Agent, in its discretion, deems advisable. Each Obligor agrees that
10 days’ notice of any proposed sale or other disposition of Collateral by Agent shall be
reasonable, and that any sale conducted on the internet or to a licensor of Intellectual Property
shall be commercially reasonable. Agent may conduct sales on any Obligor’s premises, without
charge, and any sale may be adjourned from time to time in accordance with Applicable Law.
Agent shall have the right to sell, lease or otherwise dispose of any Collateral for cash, credit or
any combination thereof, and Agent may purchase any Collateral at public or, if permitted by
law, private sale and, in lieu of actual payment of the purchase price, may credit bid and set off
the amount of such price against the Obligations.
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11.3. License. Agent is hereby granted an irrevocable, non-exclusive license or other
right, exercisable at any time an Event of Default exists, to use, license or sub-license (without
payment of royalty or other compensation to any Person) any or all Intellectual Property of
Obligors, computer hardware and software, trade secrets, brochures, customer lists, promotional
and advertising materials, labels, packaging materials and other Property, in advertising for sale,
marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or
remedies with respect to, any Collateral. Each Obligor’s rights and interests under Intellectual
Property shall inure to Agent’s benefit.
11.4. Setoff. At any time during an Event of Default, Agent, Issuing Bank, Lenders,
and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final, in
whatever currency, but excluding deposits held by Obligors in a fiduciary capacity) at any time
held and other obligations (in whatever currency) at any time owing by Agent, Issuing Bank,
such Lender or such Affiliate to or for the credit or the account of an Obligor against any
Obligations, irrespective of whether or not Agent, Issuing Bank, such Lender or such Affiliate
shall have made any demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or are owed to a branch or office of Agent,
Issuing Bank, such Lender or such Affiliate different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of Agent, Issuing Bank, each Lender and
each such Affiliate under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Person may have.
11.5. Remedies Cumulative; No Waiver.
11.5.1. Cumulative Rights. All agreements, warranties, guaranties, indemnities
and other undertakings of Obligors under the Loan Documents are cumulative and not in
derogation of each other. The rights and remedies of Agent and Lenders are cumulative, may be
exercised at any time and from time to time, concurrently or in any order, and are not exclusive
of any other rights or remedies available by agreement, by law, at equity or otherwise. All such
rights and remedies shall continue in full force and effect until Full Payment of all Obligations.
11.5.2. Waivers. No waiver or course of dealing shall be established by (a) the
failure or delay of Agent or any Lender to require strict performance by Obligors with any terms
of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or
otherwise; (b) the making of any Loan or issuance of any Letter of Credit during a Default, Event
of Default or other failure to satisfy any conditions precedent; or (c) acceptance by Agent or any
Lender of any payment or performance by an Obligor under any Loan Documents in a manner
other than that specified therein. It is expressly acknowledged by Obligors that any failure to
satisfy a financial covenant on a measurement date shall not be cured or remedied by satisfaction
of such covenant on a subsequent date.
SECTION 12. AGENT
12.1. Appointment, Authority and Duties of Agent.
12.1.1. Appointment and Authority. Each Secured Party appoints and
designates Bank of America as Agent under all Loan Documents. Agent may, and each Secured
Party authorizes Agent to, enter into all Loan Documents to which Agent is intended to be a
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party and accept all Security Documents, for the benefit of Secured Parties. Any action taken by
Agent in accordance with the provisions of the Loan Documents, and the exercise by Agent of
any rights or remedies set forth therein, together with all other powers reasonably incidental
thereto, shall be authorized by and binding upon all Secured Parties. Without limiting the
generality of the foregoing, Agent shall have the sole and exclusive authority to (a) act as the
disbursing and collecting agent for Lenders with respect to all payments and collections arising
in connection with the Loan Documents; (b) execute and deliver as Agent each Loan Document,
including any intercreditor or subordination agreement, and accept delivery of each Loan
Document; (c) act as collateral agent for Secured Parties for purposes of perfecting and
administering Liens under the Loan Documents, and for all other purposes stated therein;
(d) manage, supervise or otherwise deal with Collateral; and (e) take any Enforcement Action or
otherwise exercise any rights or remedies with respect to any Collateral or under any Loan
Documents, Applicable Law or otherwise. The duties of Agent are ministerial and
administrative in nature only, and Agent shall not have a fiduciary relationship with any Secured
Party, Participant or other Person, by reason of any Loan Document or any transaction relating
thereto. Agent alone shall be authorized to determine whether any Account or Inventory
constitutes an Eligible Account or Eligible Inventory, whether any Trucks or Machinery
constitutes Eligible Trucks or Eligible Machinery, whether to impose or release any reserve, or
whether any conditions to funding or to issuance of a Letter of Credit have been satisfied, which
determinations and judgments, if exercised in good faith, shall exonerate Agent from liability to
any Secured Party or other Person for any error in judgment.
12.1.2. Duties. Agent shall not have any duties except those expressly set forth
in the Loan Documents. The conferral upon Agent of any right shall not imply a duty to exercise
such right, unless instructed to do so by Lenders in accordance with this Agreement.
12.1.3. Agent Professionals. Agent may perform its duties through agents and
employees. Agent may consult with and employ Agent Professionals, and shall be entitled to act
upon, and shall be fully protected in any action taken in good faith reliance upon, any advice
given by an Agent Professional. Agent shall not be responsible for the negligence or misconduct
of any agents, employees or Agent Professionals selected by it with reasonable care.
12.1.4. Instructions of Required Lenders. The rights and remedies conferred
upon Agent under the Loan Documents may be exercised without the necessity of joinder of any
other party, unless required by Applicable Law. Agent may request instructions from Required
Lenders or other Secured Parties with respect to any act (including the failure to act) in
connection with any Loan Documents or Collateral, and may seek assurances to its satisfaction
from Secured Parties of their indemnification obligations against Claims that could be incurred
by Agent. Agent may refrain from any act until it has received such instructions or assurances,
and shall not incur liability to any Person by reason of so refraining. Instructions of Required
Lenders shall be binding upon all Secured Parties, and no Secured Party shall have any right of
action whatsoever against Agent as a result of Agent acting or refraining from acting pursuant to
instructions of Required Lenders. Notwithstanding the foregoing, instructions by and consent of
specific parties shall be required to the extent provided in Section 15.1.1. In no event shall
Agent be required to take any action that, in its opinion, is contrary to Applicable Law or any
Loan Documents or could subject any Agent Indemnitee to personal liability.
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12.2. Agreements Regarding Collateral and Borrower Materials.
12.2.1. Lien Releases; Care of Collateral. Secured Parties authorize Agent to
release any Lien with respect to any Collateral (a) upon Full Payment of the outstanding
Obligations and termination of all Commitments; (b) that is the subject of a disposition or Lien
that Borrowers certify in writing is a Permitted Asset Disposition or a Permitted Lien entitled to
priority over Agent’s Liens (and Agent may rely conclusively on any such certificate without
further inquiry); (c) that does not constitute a material part of the Collateral; or (d) subject to
Section 15.1, with the consent of Required Lenders. Secured Parties authorize Agent to
subordinate its Liens to any Purchase Money Lien or other Lien entitled to priority hereunder.
Agent shall have no obligation to assure that any Collateral exists or is owned by an Obligor, or
is cared for, protected or insured, nor to assure that Agent’s Liens have been properly created,
perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care
with respect to any Collateral.
12.2.2. Possession of Collateral. Agent and Secured Parties appoint each
Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in any
Collateral held or controlled by such Lender, to the extent such Liens are perfected by possession
or control. If any Lender obtains possession or control of any Collateral, it shall notify Agent
thereof and, promptly upon Agent’s request, deliver such Collateral to Agent or otherwise deal
with it in accordance with Agent’s instructions.
12.2.3. Reports. Agent shall promptly provide to Lenders, when complete, any
field audit, examination or appraisal report prepared for Agent with respect to any Obligor or
Collateral (“Report”). Reports and other Borrower Materials may be made available to Lenders
by providing access to them on the Platform, but Agent shall not be responsible for system
failures or access issues that may occur from time to time. Each Lender agrees (a) that Reports
are not intended to be comprehensive audits or examinations, and that Agent or any other Person
performing an audit or examination will inspect only specific information regarding the
Obligations or Collateral and will rely significantly upon Borrowers’ books, records and
representations; (b) that Agent makes no representation or warranty as to the accuracy or
completeness of any Borrower Materials and shall not be liable for any information contained in
or omitted from any Borrower Materials, including any Report; and (c) to keep all Borrower
Materials confidential and strictly for such Lender’s internal use, not to distribute any Report or
other Borrower Materials (or the contents thereof) to any Person (except to such Lender’s
Participants, attorneys and accountants), and to use all Borrower Materials solely for
administration of the Obligations. Each Lender shall indemnify and hold harmless Agent and
any other Person preparing a Report from any action such Lender may take as a result of or any
conclusion it may draw from any Borrower Materials, as well as from any Claims arising as a
direct or indirect result of Agent furnishing same to such Lender, via the Platform or otherwise.
12.3. Reliance By Agent. Agent shall be entitled to rely, and shall be fully protected in
relying, upon any certification, notice or other communication (including those by telephone,
telex, telegram, telecopy or e-mail) believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. Agent shall have a reasonable and practicable
amount of time to act upon any instruction, notice or other communication under any Loan
Document, and shall not be liable for any delay in acting.
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12.4. Action Upon Default. Agent shall not be deemed to have knowledge of any
Default or Event of Default, or of any failure to satisfy any conditions in Section 6, unless it has
received written notice from a Borrower or Required Lenders specifying the occurrence and
nature thereof. If any Lender acquires knowledge of a Default, Event of Default or failure of
such conditions, it shall promptly notify Agent and the other Lenders thereof in writing. Each
Secured Party agrees that, except as otherwise provided in any Loan Documents or with the
written consent of Agent and Required Lenders, it will not take any Enforcement Action,
accelerate Obligations (other than Secured Bank Product Obligations), or exercise any right that
it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or
other dispositions of Collateral, or to assert any rights relating to any Collateral.
12.5. Ratable Sharing. If any Lender obtains any payment or reduction of any
Obligation, whether through set-off or otherwise, in excess of its share of such Obligation,
determined on a Pro Rata basis or in accordance with Section 5.5.2, as applicable, such Lender
shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in
the affected Obligation as are necessary to share the excess payment or reduction on a Pro Rata
basis or in accordance with Section 5.5.2, as applicable. If any of such payment or reduction is
thereafter recovered from the purchasing Lender, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest. Notwithstanding the
foregoing, if a Defaulting Lender obtains a payment or reduction of any Obligation, it shall
immediately turn over the amount thereof to Agent for application under Section 4.2.2 and it
shall provide a written statement to Agent describing the Obligation affected by such payment or
reduction. No Lender shall set off against any Dominion Account without Agent’s prior consent.
12.6. Indemnification. EACH LENDER SHALL INDEMNIFY AND HOLD
HARMLESS AGENT INDEMNITEES AND ISSUING BANK INDEMNITEES, TO THE
EXTENT NOT REIMBURSED BY OBLIGORS, ON A PRO RATA BASIS, AGAINST ALL
CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY SUCH
INDEMNITEE, PROVIDED THAT ANY CLAIM AGAINST AN AGENT INDEMNITEE
RELATES TO OR ARISES FROM ITS ACTING AS OR FOR AGENT (IN THE CAPACITY
OF AGENT). In no event shall any Lender have any obligation hereunder to indemnify or hold
harmless an Agent Indemnitee with respect to a Claim that is determined in a final, non-
appealable judgment by a court of competent jurisdiction to result from the gross negligence or
willful misconduct of such Agent Indemnitee. In Agent’s Permitted Discretion, it may reserve
for any Claims made against an Agent Indemnitee or Issuing Bank Indemnitee, and may satisfy
any judgment, order or settlement relating thereto, from proceeds of Collateral prior to making
any distribution of Collateral proceeds to Secured Parties. If Agent is sued by any receiver,
trustee or other Person for any alleged preference or fraudulent transfer, then any monies paid by
Agent in settlement or satisfaction of such proceeding, together with all interest, costs and
expenses (including attorneys’ fees) incurred in the defense of same, shall be promptly
reimbursed to Agent by each Lender to the extent of its Pro Rata share.
12.7. Limitation on Responsibilities of Agent. Agent shall not be liable to any
Secured Party for any action taken or omitted to be taken under the Loan Documents, except for
losses directly and solely caused by Agent’s gross negligence or willful misconduct. Agent does
not assume any responsibility for any failure or delay in performance or any breach by any
Obligor, Lender or other Secured Party of any obligations under the Loan Documents. Agent
does not make any express or implied representation, warranty or guarantee to Secured Parties
with respect to any Obligations, Collateral, Loan Documents or Obligor. No Agent Indemnitee
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shall be responsible to Secured Parties for any recitals, statements, information, representations
or warranties contained in any Loan Documents or Borrower Materials; the execution, validity,
genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; the validity, enforceability or
collectibility of any Obligations; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No
Agent Indemnitee shall have any obligation to any Secured Party to ascertain or inquire into the
existence of any Default or Event of Default, the observance by any Obligor of any terms of the
Loan Documents, or the satisfaction of any conditions precedent contained in any Loan
Documents.
12.8. Successor Agent and Co-Agents.
12.8.1. Resignation; Successor Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, Agent may resign at any time by giving at
least 30 days written notice thereof to Lenders and Borrowers. Upon receipt of such notice,
Required Lenders shall have the right to appoint a successor Agent which shall be (a) a Lender
or an Affiliate of a Lender; or (b) a financial institution reasonably acceptable to Required
Lenders and (provided no Default or Event of Default exists) Borrowers. If no successor agent is
appointed prior to the effective date of Agent’s resignation, then Agent may appoint a successor
agent that is a financial institution acceptable to it, which shall be a Lender unless no Lender
accepts the role. Upon acceptance by a successor Agent of its appointment hereunder, such
successor Agent shall thereupon succeed to and become vested with all the powers and duties of
the retiring Agent without further act, and the retiring Agent shall be discharged from its duties
and obligations hereunder but shall continue to have the benefits of the indemnification set forth
in Sections 12.6 and 15.2. Notwithstanding any Agent’s resignation, the provisions of this
Section 12 shall continue in effect for its benefit with respect to any actions taken or omitted to
be taken by it while Agent. Any successor to Bank of America by merger or acquisition of stock
or this loan shall continue to be Agent hereunder without further act on the part of any Secured
Party or Obligor.
12.8.2. Co-Collateral Agent. If necessary or appropriate under Applicable Law,
Agent may appoint a Person to serve as a co-collateral agent or separate collateral agent under
any Loan Document. Each right and remedy intended to be available to Agent under the Loan
Document shall also be vested in such agent. Secured Parties shall execute and deliver any
instrument or agreement that Agent may request to effect such appointment. If the agent shall
die, dissolve, become incapable of acting, resign or be removed, then all the rights and remedies
of such agent, to the extent permitted by Applicable Law, shall vest in and be exercised by Agent
until appointment of a new agent.
12.9. Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it
has, independently and without reliance upon Agent or any other Lenders, and based upon such
documents, information and analyses as it has deemed appropriate, made its own credit analysis
of each Obligor and its own decision to enter into this Agreement and to fund Loans and
participate in LC Obligations hereunder. Each Secured Party has made such inquiries as it feels
necessary concerning the Loan Documents, Collateral and Obligors. Each Secured Party
acknowledges and agrees that the other Secured Parties have made no representations or
warranties concerning any Obligor, any Collateral or the legality, validity, sufficiency or
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enforceability of any Loan Documents or Obligations. Each Secured Party will, independently
and without reliance upon any other Secured Party, and based upon such financial statements,
documents and information as it deems appropriate at the time, continue to make and rely upon
its own credit decisions in making Loans and participating in LC Obligations, and in taking or
refraining from any action under any Loan Documents. Except for notices, reports and other
information expressly requested by a Lender, Agent shall have no duty or responsibility to
provide any Secured Party with any notices, reports or certificates furnished to Agent by any
Obligor or any credit or other information concerning the affairs, financial condition, business or
Properties of any Obligor (or any of its Affiliates) which may come into possession of Agent or
its Affiliates.
12.10. Remittance of Payments and Collections.
12.10.1. Remittances Generally. All payments by any Lender to Agent shall be
made by the time and on the day set forth in this Agreement, in immediately available funds. If
no time for payment is specified or if payment is due on demand by Agent and request for
payment is made by Agent by 11:00 a.m. on a Business Day, payment shall be made by Lender
not later than 2:00 p.m. on such day, and if request is made after 11:00 a.m., then payment shall
be made by 11:00 a.m. on the next Business Day. Payment by Agent to any Secured Party shall
be made by wire transfer, in the type of funds received by Agent. Any such payment shall be
subject to Agent’s right of offset for any amounts due from such payee under the Loan
Documents.
12.10.2. Failure to Pay. If any Secured Party fails to pay any amount when due
by it to Agent pursuant to the terms hereof, such amount shall bear interest, from the due date
until paid in full, at the rate determined by Agent as customary for interbank compensation for
two Business Days and thereafter at the Default Rate for Base Rate Revolver Loans. In no event
shall Borrowers be entitled to receive credit for any interest paid by a Secured Party to Agent,
nor shall any Defaulting Lender be entitled to interest on any amounts held by Agent pursuant to
Section 4.2.
12.10.3. Recovery of Payments. If Agent pays an amount to a Secured Party in
the expectation that a related payment will be received by Agent from an Obligor and such
related payment is not received, then Agent may recover such amount from the Secured Party. If
Agent determines that an amount received by it must be returned or paid to an Obligor or other
Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any
Loan Document, Agent shall not be required to distribute such amount to any Secured Party. If
any amounts received and applied by Agent to any Obligations are later required to be returned
by Agent pursuant to Applicable Law, each Lender shall pay to Agent, on demand, such
Lender’s Pro Rata share of the amounts required to be returned.
12.11. Individual Capacities. As a Lender, Bank of America shall have the same rights
and remedies under the Loan Documents as any other Lender, and the terms “Lenders,”
“Required Lenders” or any similar term shall include Bank of America in its capacity as a
Lender. Agent, Lenders and their Affiliates may accept deposits from, lend money to, provide
Bank Products to, act as financial or other advisor to, and generally engage in any kind of
business with, Obligors and their Affiliates, as if they were not Agent or Lenders hereunder,
without any duty to account therefor to any Secured Party. In their individual capacities, Agent,
Lenders and their Affiliates may receive information regarding Obligors, their Affiliates and
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their Account Debtors (including information subject to confidentiality obligations), and shall
have no obligation to provide such information to any Secured Party.
12.12. Titles. Each Lender, other than Bank of America, that is designated (on the cover
page of this Agreement or otherwise) by Bank of America as an “Arranger,” “Bookrunner” or
“Agent” of any type shall have no right, power or duty under any Loan Documents other than
those applicable to all Lenders, and shall in no event have any fiduciary duty to any Secured
Party.
12.13. Bank Product Providers. Each Secured Bank Product Provider, by delivery of a
notice to Agent of a Bank Product, agrees to be bound by Section 5.5 and this Section 12. Each
Secured Bank Product Provider shall indemnify and hold harmless Agent Indemnitees, to the
extent not reimbursed by Obligors, against all Claims that may be incurred by or asserted against
any Agent Indemnitee in connection with such provider’s Secured Bank Product Obligations.
12.14. No Third Party Beneficiaries. This Section 12 is an agreement solely among
Secured Parties and Agent, and shall survive Full Payment of the Obligations. Other than
Section 12.8.1(b), this Section 12 does not confer any rights or benefits upon Borrowers or any
other Person. As between Borrowers and Agent, any action that Agent may take under any Loan
Documents or with respect to any Obligations shall be conclusively presumed to have been
authorized and directed by Secured Parties.
SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS
13.1. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Obligors, Agent, Lenders, Secured Parties, and their respective successors and assigns,
except that (a) no Obligor shall have the right to assign its rights or delegate its obligations under
any Loan Documents (except in connection with a transaction permitted under Section 10.2.8);
and (b) any assignment by a Lender must be made in compliance with Section 13.3. Agent may
treat the Person which made any Loan as the owner thereof for all purposes until such Person
makes an assignment in accordance with Section 13.3. Any authorization or consent of a Lender
shall be conclusive and binding on any subsequent transferee or assignee of such Lender.
13.2. Participations.
13.2.1. Permitted Participants; Effect. Subject to Section 13.3.3, any Lender
may sell to a financial institution (“Participant”) a participating interest in the rights and
obligations of such Lender under any Loan Documents. Despite any sale by a Lender of
participating interests to a Participant, such Lender’s obligations under the Loan Documents
shall remain unchanged, it shall remain solely responsible to the other parties hereto for
performance of such obligations, it shall remain the holder of its Loans and Commitments for all
purposes, all amounts payable by Borrowers shall be determined as if it had not sold such
participating interests, and Borrowers and Agent shall continue to deal solely and directly with
such Lender in connection with the Loan Documents. Each Lender shall be solely responsible
for notifying its Participants of any matters under the Loan Documents, and Agent and the other
Lenders shall not have any obligation or liability to any such Participant. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 5.9
unless Borrowers agree otherwise in writing.
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13.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, waiver or other modification of a Loan
Document other than that which forgives principal, interest or fees, reduces the stated interest
rate or fees payable with respect to any Loan or Commitment in which such Participant has an
interest, postpones the Commitment Termination Date or any date fixed for any regularly
scheduled payment of principal, interest or fees on such Loan or Commitment, or releases any
Borrower, Guarantor or substantially all Collateral.
13.2.3. Benefit of Set-Off. Obligors agree that each Participant shall have a
right of set-off in respect of its participating interest to the same extent as if such interest were
owing directly to a Lender, and each Lender shall also retain the right of set-off with respect to
any participating interests sold by it. By exercising any right of set-off, a Participant agrees to
share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if
such Participant were a Lender.
13.3. Assignments.
13.3.1. Permitted Assignments. A Lender may assign to an Eligible Assignee
any of its rights and obligations under the Loan Documents, as long as (a) each assignment is of
a constant, and not a varying, percentage of the transferor Lender’s rights and obligations under
the Loan Documents and, in the case of a partial assignment (other than partial assignments to an
Affiliate of such Lender), is in a minimum principal amount of $5,000,000 (unless otherwise
agreed by Agent in its discretion) and integral multiples of $1,000,000 in excess of that amount;
(b) except in the case of an assignment in whole of a Lender’s rights and obligations or an
assignment to an Affiliate of such Lender, the aggregate amount of the Commitments retained by
the transferor Lender is at least $5,000,000 (unless otherwise agreed by Agent in its discretion);
and (c) the parties to each such assignment shall execute and deliver to Agent, for its acceptance
and recording, an Assignment and Acceptance. Nothing herein shall limit the right of a Lender
to pledge or assign any rights under the Loan Documents to secure obligations of such Lender,
including a pledge or assignment to a Federal Reserve Bank; provided, however, that no such
pledge or assignment shall release the Lender from its obligations hereunder nor substitute the
pledge or assignee for such Lender as a party hereto.
13.3.2. Effect; Effective Date. Upon delivery to Agent of an assignment notice
in the form of Exhibit B and a processing fee of $3,500 (unless such assignment is to an Affiliate
of such Lender or is otherwise agreed by Agent in its discretion), the assignment shall become
effective as specified in the notice, if it complies with this Section 13.3. From such effective
date, the Eligible Assignee shall for all purposes be a Lender under the Loan Documents, and
shall have all rights and obligations of a Lender thereunder. Upon consummation of an
assignment, the transferor Lender, Agent and Borrowers shall make appropriate arrangements for
issuance of replacement and/or new notes, if applicable. The transferee Lender shall comply
with Section 5.9 and deliver, upon request, an administrative questionnaire satisfactory to Agent.
13.3.3. Certain Assignees. No assignment or participation may be made to an
Obligor, Affiliate of an Obligor, Defaulting Lender or natural person. Any assignment by a
Defaulting Lender shall be effective only upon payment by the Eligible Assignee or Defaulting
Lender to Agent of an aggregate amount sufficient, upon distribution (through direct payment,
purchases of participations or other compensating actions as Agent deems appropriate), to satisfy
all funding and payment liabilities then owing by the Defaulting Lender hereunder. If an
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assignment by a Defaulting Lender shall become effective under Applicable Law for any reason
without compliance with the foregoing sentence, then the assignee shall be deemed a Defaulting
Lender for all purposes until such compliance occurs.
13.3.4. Register. Agent, acting as a non-fiduciary agent of Borrowers (solely
for tax purposes), shall maintain (a) a copy of each Assignment and Acceptance delivered to it,
and (b) a register for recordation of the names, addresses and Commitments of, and the Loans,
interest and LC Obligations owing to, each Lender. Entries in the register shall be conclusive,
absent manifest error, and Borrowers, Agent and Lenders shall treat each lender recorded in such
register as a Lender for all purposes under the Loan Documents, notwithstanding any notice to
the contrary. The register shall be available for inspection by Borrowers or any Lender, from
time to time upon reasonable notice.
13.4. Replacement of Certain Lenders. If a Lender (a) fails to give its consent to any
amendment, waiver or action for which consent of all Lenders was required and Required
Lenders consented, or (b) is a Defaulting Lender, then, in addition to any other rights and
remedies that any Person may have, Agent or Borrower Agent may, by notice to such Lender
within 120 days after such event, require such Lender to assign all of its rights and obligations
under the Loan Documents to Eligible Assignee(s), pursuant to appropriate Assignment and
Acceptance(s), within 20 days after the notice. Agent is irrevocably appointed as attorney-in-
fact to execute any such Assignment and Acceptance if the Lender fails to execute it. Such
Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed
to it under the Loan Documents through the date of assignment.
SECTION 14. GUARANTY
14.1. Guaranty of the Obligations. Subject to the provisions of Section 14.2,
Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to Agent and
Lenders the due and punctual payment in full of all Obligations (other than Excluded Swap
Obligations) when the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code) (collectively, the “Guaranteed Obligations”).
14.2. Contribution by Guarantors. All Guarantors desire to allocate among
themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is
made on any date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its
Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be
entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient
to cause each Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such
date. “Fair Share” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with
respect to such Contributing Guarantor, to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by, (b) the aggregate amount
paid or distributed on or before such date by all Funding Guarantors under this Guaranty in
respect of the obligations Guaranteed. “Fair Share Contribution Amount” means, with respect to
a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty that would not render its
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obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any comparable applicable provisions of
state law; provided, solely for purposes of calculating the “Fair Share Contribution Amount”
with respect to any Contributing Guarantor for purposes of this Section 14.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation,
reimbursement or indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such Contributing Guarantor. “Aggregate Payments”
means, with respect to a Contributing Guarantor as of any date of determination, an amount
equal to (1) the aggregate amount of all payments and distributions made on or before such date
by such Contributing Guarantor in respect of this Guaranty (including, without limitation, in
respect of this Section 14.2), minus (2) the aggregate amount of all payments received on or
before such date by such Contributing Guarantor from the other Contributing Guarantors as
contributions under this Section 14.2. The amounts payable as contributions hereunder shall be
determined as of the date on which the related payment or distribution is made by the applicable
Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set
forth in this Section 14.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third-party beneficiary to the
contribution agreement set forth in this Section 14.2.
14.3. Payment by Guarantors. Subject to Section 14.2, Guarantors hereby jointly and
severally agree, in furtherance of the foregoing and not in limitation of any other right which
Lender may have at law or in equity against any Guarantor by virtue hereof, that upon the failure
of any Borrower to pay any of the Guaranteed Obligations when and as the same shall become
due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code), Guarantors will upon demand pay, or cause to be
paid, in cash, to Agent, for the benefit of itself and the Lenders, an amount equal to the sum of
the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and
unpaid interest on such Guaranteed Obligations (including interest which, but for any Borrower’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against such Borrower for such
interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Agent
and Lenders as aforesaid.
14.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations
hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by
any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other
than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
14.4.1. this Guaranty is a guaranty of payment when due and not of collectability.
This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
14.4.2. Agent may enforce this Guaranty upon the occurrence of an Event of
Default notwithstanding the existence of any dispute between any Borrower and Agent or any
Lender with respect to the existence of such Event of Default;
14.4.3. the obligations of each Guarantor hereunder are independent of the
obligations of Borrowers and the obligations of any other guarantor (including any other
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Guarantor) of the obligations of Borrowers, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against any Borrower or
any of such other guarantors and whether or not any Borrower is joined in any such action or
actions;
14.4.4. payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any
portion of the Guaranteed Obligations which has not been paid. Without limiting the generality
of the foregoing, if Agent or any Lender is awarded a judgment in any suit brought to enforce
any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall
not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed
Obligations that is not the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability
hereunder in respect of the Guaranteed Obligations;
14.4.5. Agent and/or Lenders, upon such terms as they deem appropriate, without
notice or demand and without affecting the validity or enforceability hereof or giving rise to any
reduction, limitation, impairment, discharge or termination of any Guarantor’s liability
hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with
respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other obligations; (iii) request
and accept other guaranties of the Guaranteed Obligations and take and hold security for the
payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration,
any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed
Obligations, or any other obligation of any Person (including any other Guarantor) with respect
to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of Agent for the benefit of itself and the Lenders in respect hereof or the Guaranteed
Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy
that Agent may have against any such security, in each case as Agent in its discretion may
determine consistent herewith or any applicable security agreement, including foreclosure on any
such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable, and even though such action operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor
against any Borrower or any security for the Guaranteed Obligations; and (vi) exercise any other
rights available to it under the Loan Documents; and
14.4.6. this Guaranty and the obligations of Guarantors hereunder shall be valid
and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations), including
the occurrence of any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy
(whether arising under the Loan Documents, at law, in equity or otherwise) with respect to the
Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty
of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver,
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amendment or modification of, or any consent to departure from, any of the terms or provisions
(including provisions relating to events of default) hereof, any of the other Loan Documents or
any agreement or instrument executed pursuant thereto, or of any other guaranty or security for
the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or
such Loan Document, or any agreement relating to such other guaranty or security; (iii) the
Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal,
invalid or unenforceable in any respect; (iv) the application of payments received from any
source (other than payments received pursuant to the other Loan Documents or from the
proceeds of any security for the Guaranteed Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of
indebtedness other than the Guaranteed Obligations, even though Agent or Lenders might have
elected to apply such payment to any part or all of the Guaranteed Obligations; (v) Agent’s or
Lenders’ consent to the change, reorganization or termination of the corporate structure or
existence of US Concrete or any of its Subsidiaries and to any corresponding restructuring of the
Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in
any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or
counterclaims which any Borrower may allege or assert against Agent or any Lender in respect
of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might in any manner or
to any extent vary the risk of any Guarantor as an Obligor in respect of the Guaranteed
Obligations.
14.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of
Agent and each Lender: (a) any right to require Agent or any Lender, as a condition of payment
or performance by such Guarantor, to (i) proceed against any Borrower, any other guarantor
(including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed
against or exhaust any security held from any Borrower, any such other guarantor or any other
Person, (iii) proceed against or have resort to any balance of any Deposit Account, Securities
Account or Commodities Account or credit on the books of Agent or any Lender in favor of any
Borrower or any other Person, or (iv) pursue any other remedy in the power of Agent or any
Lender whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of any Borrower or any other Guarantor including any defense based
on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or
any agreement or instrument relating thereto or by reason of the cessation of the liability of any
Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed
Obligations; (c) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon Agent’s or any Lender’s errors or
omissions in the administration of the Guaranteed Obligations, except behavior which amounts
to bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might
be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s
obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s
liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that Agent or any Lender
protect, secure, perfect or insure any security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance hereof, notices of default hereunder or any
agreement or instrument related thereto, notices of any renewal, extension or modification of the
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Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to
Borrowers and notices of any of the matters referred to in Section 14.4 and any right to consent
to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may conflict with the
terms hereof other than Full Payment of the Obligations.
14.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed
Obligations shall have been indefeasibly paid in full and the Commitments shall have terminated
and all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives any
claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have
against any Borrower or any other Guarantor or any of its assets in connection with this Guaranty
or the performance by such Guarantor of its obligations hereunder, in each case whether such
claim, right or remedy arises in equity, under contract, by statute, under common law or
otherwise and including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against any Borrower with
respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim,
right or remedy that Agent or any Lender now has or may hereafter have against any Borrower,
and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter
held by Agent or any Lender. In addition, until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Commitment shall have terminated and all Letters of Credit shall
have expired or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any other
Guarantor) of the Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 14.2. Each Guarantor further agrees that, to the extent
the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against any Borrower or against any collateral or
security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights Agent or any Lender may have against
any Borrower, to all right, title and interest Lender may have in any such collateral or security,
and to any right Agent or any Lender may have against such other guarantor. If any amount
shall be paid to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed Obligations shall not
have been finally and indefeasibly paid in full, such amount shall be held in trust for Agent and
Lenders and shall forthwith be paid over to Agent to be credited and applied against the
Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
14.7. Subordination of Other Obligations. Any indebtedness of any Borrower or any
Guarantor now or hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby
subordinated in right of payment to the Guaranteed Obligations, and any such indebtedness
collected or received by the Obligee Guarantor after an Event of Default has occurred and is
continuing shall be held in trust for Agent and Lenders and shall forthwith be paid over to Agent
to be credited and applied against the Guaranteed Obligations but without affecting, impairing or
limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.
14.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain
in effect until all of the Guaranteed Obligations shall have been indefeasibly paid in full and the
Commitment shall have terminated and all Letters of Credit shall have expired or been cancelled.
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Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future
transactions giving rise to any Guaranteed Obligations.
14.9. Authority of Guarantors or Borrowers. It is not necessary for Agent or any
Lender to inquire into the capacity or powers of any Guarantor or any Borrower or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
14.10. Financial Condition of Borrowers. Any Loan may be made to Borrowers or
continued from time to time, without notice to or authorization from any Guarantor regardless of
the financial or other condition of Borrowers at the time of any such grant or continuation.
Neither Agent nor any Lender shall have any obligation to disclose or discuss with any
Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of any
Borrower. Each Guarantor has adequate means to obtain information from each Borrower on a
continuing basis concerning the financial condition of such Borrower and its ability to perform
its obligations under the Loan Documents, and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of Borrowers and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby
waives and relinquishes any duty on the part of Agent or any Lender to disclose any matter, fact
or thing relating to the business, operations or conditions of any Borrower now known or
hereafter known by Agent or any Lender.
14.11. Bankruptcy, etc. So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Agent, commence or join with any other
Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or
against any Borrower or any other Guarantor.
14.11.1. The obligations of Guarantors hereunder shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of any Borrower or any other Guarantor or by any defense which any Borrower or
any other Guarantor may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
14.11.2. Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of any case or
proceeding referred to in Section 14.11.1 above (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement of such case or
proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if
such case or proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Agent and Lenders that the Guaranteed
Obligations which are guaranteed by Guarantors pursuant hereto should be determined without
regard to any rule of law or order which may relieve any Borrower of any portion of such
Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in
possession, assignee for the benefit of creditors or similar person to pay Agent and Lenders, or
allow the claim of Agent and Lenders in respect of, any such interest accruing after the date on
which such case or proceeding is commenced.
14.11.3. In the event that all or any portion of the Guaranteed Obligations are
paid by any Borrower, the obligations of Guarantors hereunder shall continue and remain in full
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force and effect or be reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered directly or indirectly from Agent or any Lender as a
preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or
recovered shall constitute Guaranteed Obligations for all purposes hereunder.
SECTION 15. MISCELLANEOUS
15.1. Consents, Amendments and Waivers.
15.1.1. Amendment. No modification of any Loan Document, including any
extension or amendment of a Loan Document or any waiver of a Default or Event of Default,
shall be effective without the prior written agreement of Agent (with the consent of Required
Lenders) and each Obligor party to such Loan Document; provided, however, that
(a) without the prior written consent of Agent, no modification shall
be effective with respect to any provision in a Loan Document that relates to any rights, duties or
discretion of Agent;
(b) without the prior written consent of Issuing Bank, no modification
shall be effective with respect to any LC Obligations or any other provision in a Loan Document
that relates to any rights, duties or discretion of Issuing Bank;
(c) without the prior written consent of each affected Lender,
including a Defaulting Lender, no modification shall be effective that would (i) increase the
Commitment of such Lender; (ii) reduce the amount of, or waive or delay payment of, any
principal, interest or fees payable to such Lender (except as provided in Section 4.2); (iii) extend
the Revolver Termination Date applicable to such Lender’s Obligations; or (iv) amend this
clause (c);
(d) without the prior written consent of all Lenders (except any
Defaulting Lender), no modification shall be effective that would (i) alter Section 5.5.2, 7.1
(except to add Collateral) or 15.1.1; (ii) amend the definition of Borrowing Base (or any defined
term used in such definition), Pro Rata or Required Lenders; (iii) increase any advance rate or
decrease the Availability Reserve; (iv) release all or substantially all Collateral; or (v) except in
connection with a merger, disposition or similar transaction expressly permitted hereby, release
any Obligor from liability for any Obligations; and
(e) without the prior written consent of a Secured Bank Product
Provider, no modification shall be effective that affects its relative payment priority under
Section 5.5.2.
15.1.2. Limitations. The agreement of Obligors shall not be necessary to the
effectiveness of any modification of a Loan Document that deals solely with the rights and duties
of Lenders, Agent and/or Issuing Bank as among themselves. Only the consent of the parties to
any agreement relating to fees or a Bank Product shall be required for modification of such
agreement, and no Bank Product provider (in such capacity) shall have any right to consent to
modification of any Loan Document other than its Bank Product agreement. Any waiver or
consent granted by Agent or Lenders hereunder shall be effective only if in writing and only for
the matter specified. Notwithstanding Section 15.1.1, any amendments that Agent deems
appropriate in connection with an increase in Revolver Commitments pursuant to Section 2.1.7
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shall not require the consent of any Lender (other than Lenders that are increasing their Revolver
Commitments at such time).
15.1.3. Payment for Consents. No Obligor will, directly or indirectly, pay any
remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to
any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such
Lender with any modification of any Loan Documents, unless such remuneration or value is
concurrently paid, on the same terms, on a Pro Rata basis to all Lenders providing their consent.
15.2. Indemnity. EACH OBLIGOR SHALL INDEMNIFY AND HOLD
HARMLESS THE INDEMNITEES AGAINST ANY CLAIMS THAT MAY BE
INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS
ASSERTED BY ANY OBLIGOR OR OTHER PERSON OR ARISING FROM THE
NEGLIGENCE OF AN INDEMNITEE; PROVIDED THAT, IN NO EVENT SHALL
ANY PARTY TO A LOAN DOCUMENT HAVE ANY OBLIGATION THEREUNDER
TO INDEMNIFY OR HOLD HARMLESS AN INDEMNITEE WITH RESPECT TO A
CLAIM THAT IS DETERMINED IN A NON-APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO RESULT FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
15.3. Notices and Communications.
15.3.1. Notice Address. Subject to Section 4.1.4, all notices and other
communications by or to a party hereto shall be in writing and shall be given to any Obligor, at
Borrower Agent’s address shown on the signature pages hereof, and to any other Person at its
address shown on the signature pages hereof (or, in the case of a Person who becomes a Lender
after the Closing Date, at the address shown on its Assignment and Acceptance), or at such other
address as a party may hereafter specify by notice in accordance with this Section 15.3. Each
communication shall be effective only (a) if given by facsimile transmission, when transmitted to
the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail, three
Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to the
applicable address; or (c) if given by personal delivery, when duly delivered to the notice address
with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to
Section 2.1.4, 3.1.2, 4.1.1 or 4.3 shall be effective until actually received by the individual to
whose attention at Agent such notice is required to be sent. Any written communication that is
not sent in conformity with the foregoing provisions shall nevertheless be effective on the date
actually received by the noticed party. Any notice received by Borrower Agent shall be deemed
received by all Obligors.
15.3.2. Electronic Communications; Voice Mail. Electronic mail and internet
websites may be used only for routine communications, such as delivery of Borrower Materials,
administrative matters, distribution of Loan Documents, and matters permitted under Section
4.1.4. Agent and Lenders make no assurances as to the privacy and security of electronic
communications. Electronic and voice mail may not be used as effective notice under the Loan
Documents.
15.3.3. Platform. Borrower Materials shall be delivered pursuant to procedures
approved by Agent, including electronic delivery (if possible) upon request by Agent to an
electronic system maintained by Agent (“Platform”). Borrowers shall notify Agent of each
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posting of Borrower Materials on the Platform and the materials shall be deemed received by
Agent only upon its receipt of such notice. Borrower Materials and other information relating to
this credit facility may be made available to Lenders on the Platform. The Platform is provided
“as is” and “as available.” Agent does not warrant the accuracy or completeness of any
information on the Platform nor the adequacy or functioning of the Platform, and expressly
disclaims liability for any errors or omissions in the Borrower Materials or any issues involving
the Platform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY AGENT WITH
RESPECT TO BORROWER MATERIALS OR THE PLATFORM. Lenders acknowledge that
Borrower Materials may include material non-public information of Obligors and should not be
made available to any personnel who do not wish to receive such information or who may be
engaged in investment or other market-related activities with respect to any Obligor’s securities.
No Agent Indemnitee shall have any liability to Obligors, Lenders or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
relating to use by any Person of the Platform or delivery of Borrower Materials and other
information through the Platform.
15.3.4. Non-Conforming Communications. Agent and Lenders may rely upon
any communications purportedly given by or on behalf of any Obligor even if they were not
made in a manner specified herein, were incomplete or were not confirmed, or if the terms
thereof, as understood by the recipient, varied from a later confirmation. Each Obligor shall
indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and expenses
arising from any electronic or telephonic communication purportedly given by or on behalf of a
Obligor.
15.4. Performance of Obligors’ Obligations. Agent may, in its Permitted Discretion
at any time and from time to time, at Borrowers’ expense, pay any amount or do any act required
of an Obligor under any Loan Documents or otherwise lawfully requested by Agent to
(a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or
realize upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s Liens in
any Collateral, including any payment of a judgment, insurance premium, warehouse charge,
finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments,
costs and expenses (including Extraordinary Expenses) of Agent under this Section shall be
reimbursed to Agent by Borrowers, within five days after demand, with interest from the date
incurred until paid in full, at the Default Rate applicable to Base Rate Revolver Loans. Any
payment made or action taken by Agent under this Section shall be without prejudice to any right
to assert an Event of Default or to exercise any other rights or remedies under the Loan
Documents.
15.5. Credit Inquiries. Agent and Lenders may (but shall have no obligation) to
respond to usual and customary credit inquiries from third parties concerning any Obligor or
Subsidiary.
15.6. Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under Applicable Law. If any provision is found to be
invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the
remaining provisions of the Loan Documents shall remain in full force and effect.
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15.7. Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents
are cumulative. The parties acknowledge that the Loan Documents may use several limitations
or measurements to regulate similar matters, and they agree that these are cumulative and that
each must be performed as provided. Except as otherwise provided in another Loan Document
(by specific reference to the applicable provision of this Agreement), if any provision contained
herein is in direct conflict with any provision in another Loan Document, the provision herein
shall govern and control.
15.8. Counterparts. Any Loan Document may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when Agent has received counterparts bearing
the signatures of all parties hereto. Delivery of a signature page of any Loan Document by
telecopy or other electronic means shall be effective as delivery of a manually executed
counterpart of such agreement.
15.9. Entire Agreement. Time is of the essence with respect to all Loan Documents
and Obligations. The Loan Documents constitute the entire agreement, and supersede all prior
understandings and agreements, among the parties relating to the subject matter thereof.
15.10. Relationship with Lenders. The obligations of each Lender hereunder are
several, and no Lender shall be responsible for the obligations or Commitments of any other
Lender. Amounts payable hereunder to each Lender shall be a separate and independent debt. It
shall not be necessary for Agent or any other Lender to be joined as an additional party in any
proceeding for such purposes. Nothing in this Agreement and no action of Agent, Lenders or
any other Secured Party pursuant to the Loan Documents or otherwise shall be deemed to
constitute Agent and any Secured Party to be a partnership, joint venture or similar arrangement,
nor to constitute control of any Obligor.
15.11. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated by any Loan Document, Obligors acknowledge and agree that
(a)(i) this credit facility and any related arranging or other services by Agent, any Lender, any of
their Affiliates or any arranger are arm’s-length commercial transactions between Obligors and
such Person; (ii) Obligors have consulted their own legal, accounting, regulatory and tax
advisors to the extent they have deemed appropriate; and (iii) Obligors are capable of evaluating,
and understand and accept, the terms, risks and conditions of the transactions contemplated by
the Loan Documents; (b) each of Agent, Lenders, their Affiliates and any arranger is and has
been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for Obligors,
any of their Affiliates or any other Person, and has no obligation with respect to the transactions
contemplated by the Loan Documents except as expressly set forth therein; and (c) Agent,
Lenders, their Affiliates and any arranger may be engaged in a broad range of transactions that
involve interests that differ from those of Obligors and their Affiliates, and have no obligation to
disclose any of such interests to Obligors or their Affiliates. To the fullest extent permitted by
Applicable Law, each Obligor hereby waives and releases any claims that it may have against
Agent, Lenders, their Affiliates and any arranger with respect to any breach of agency or
fiduciary duty in connection with any transaction contemplated by a Loan Document.
15.12. Confidentiality. Each of Agent, Lenders and Issuing Bank shall maintain the
confidentiality of all Information (as defined below), except that Information may be disclosed
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(a) to its Affiliates, and to its and their partners, directors, officers, employees, agents, advisors
and representatives (provided such Persons are informed of the confidential nature of the
Information and instructed to keep it confidential); (b) to the extent requested by any
governmental, regulatory or self-regulatory authority purporting to have jurisdiction over it or its
Affiliates; (c) to the extent required by Applicable Law or by any subpoena or other legal
process; (d) to any other party hereto; (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to any Loan
Documents or Obligations; (f) subject to an agreement containing provisions substantially the
same as this Section, to any Transferee or any actual or prospective party (or its advisors) to any
Bank Product; (g) with the consent of Borrower Agent; or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this Section or (ii) is available
to Agent, any Lender, Issuing Bank or any of their Affiliates on a nonconfidential basis from a
source other than Obligors that has not obtained such information in breach of this Section.
Notwithstanding the foregoing, Agent and Lenders may publish or disseminate general
information concerning this credit facility for league table, tombstone and advertising purposes,
and may use Obligors’ logos, trademarks or product photographs in advertising materials. As
used herein, “Information” means all information received from an Obligor or Subsidiary
relating to it or its business that is identified as confidential when delivered. Any Person
required to maintain the confidentiality of Information pursuant to this Section shall be deemed
to have complied if it exercises a degree of care similar to that which it accords its own
confidential information. Each of Agent, Lenders and Issuing Bank acknowledges that
(i) Information may include material non-public information; (ii) it has developed compliance
procedures regarding the use of material non-public information; and (iii) it will handle such
material non-public information in accordance with Applicable Law.
15.13. Certifications Regarding Senior Notes . Obligors certify to Agent and Lenders
that neither the execution nor performance of the Loan Documents or the incurrence of any
Obligations by Obligors violates any provision of any Senior Notes Document.
15.14. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, UNLESS OTHERWISE SPECIFIED, SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY
CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS
RELATING TO NATIONAL BANKS).
15.15. Consent to Forum. EACH OBLIGOR HEREBY CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING
IN OR WITH JURISDICTION OVER TEXAS, IN ANY PROCEEDING OR DISPUTE
RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY
SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT.
EACH OBLIGOR IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND
DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR
SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 15.3.1. Nothing herein shall limit the
right of Agent or any Lender to bring proceedings against any Obligor in any other court, nor
limit the right of any party to serve process in any other manner permitted by Applicable Law.
Nothing in this Agreement shall be deemed to preclude enforcement by Agent of any judgment
or order obtained in any forum or jurisdiction.
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15.16. Waivers by Obligors. To the fullest extent permitted by Applicable Law,
each Obligor waives (a) the right to trial by jury (which Agent and each Lender hereby also
waives) in any proceeding or dispute of any kind relating in any way to any Loan
Documents, Obligations or Collateral; (b) presentment, demand, protest, notice of
presentment, default, non-payment, notice of intent to accelerate, notice of acceleration,
maturity, release, compromise, settlement, extension or renewal of any commercial paper,
accounts, documents, instruments, chattel paper and guaranties at any time held by Agent
on which an Obligor may in any way be liable, and hereby ratifies anything Agent may do
in this regard; (c) notice prior to taking possession or control of any Collateral; (d) any
bond or security that might be required by a court prior to allowing Agent to exercise any
rights or remedies; (e) the benefit of all valuation, appraisement and exemption laws;
(f) any claim against Agent, Issuing Bank or any Lender, on any theory of liability, for
special, indirect, consequential, exemplary or punitive damages (as opposed to direct or
actual damages) in any way relating to any Enforcement Action, Obligations, Loan
Documents or transactions relating thereto; and (g) notice of acceptance hereof. Each
Obligor acknowledges that the foregoing waivers are a material inducement to Agent, Issuing
Bank and Lenders entering into this Agreement and that they are relying upon the foregoing in
their dealings with Obligor. Each Obligor has reviewed the foregoing waivers with its legal
counsel and has knowingly and voluntarily waived its jury trial and other rights following
consultation with legal counsel. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
15.17. Patriot Act Notice. Agent and Lenders hereby notify Obligors that pursuant to
the Patriot Act, Agent and Lenders are required to obtain, verify and record information that
identifies each Obligor, including its legal name, address, tax ID number and other information
that will allow Agent and Lenders to identify it in accordance with the Patriot Act. Agent and
Lenders will also require information regarding each personal guarantor, if any, and may require
information regarding Obligors’ management and owners, such as legal name, address, social
security number and date of birth.
15.18. NO ORAL AGREEMENT. THIS 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 BETWEEN THE
PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE
PARTIES.
15.19. Non-Applicability of Chapter 346. Obligors, Agent and Lenders hereby agree
that, except for the opt-out provisions of Section 346.004 thereof, the provisions of Chapter 346
of the Texas Finance Code, as amended from time to time (regulating certain revolving credit
loans and revolving tri-party accounts) shall not apply to this Agreement or any of the other Loan
Documents.
15.20. OBLIGORS’ WAIVER OF RIGHTS UNDER TEXAS DECEPTIVE
TRADE PRACTICES ACT. EACH OBLIGOR HEREBY WAIVES ANY RIGHTS UNDER
THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION §
17.41 ET SEQ. TEXAS BUSINESS & COMMERCE CODE, A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH
AN ATTORNEY OF THE OBLIGORS’ OWN SELECTION, EACH OBLIGOR
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VOLUNTARILY CONSENTS TO THIS WAIVER. EACH OBLIGOR EXPRESSLY
WARRANTS AND REPRESENTS THAT EACH OBLIGOR (A) IS NOT IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION RELATIVE TO AGENT AND
LENDERS, AND (B) HAS BEEN REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
15.21. Intercreditor Agreement. Notwithstanding anything to the contrary contained in
this Agreement and each other Loan Document, the Liens, security interests and rights granted
pursuant to this Agreement or any other Loan Document shall be subject to the terms, provisions
and conditions of (and the exercise of any right or remedy by the Agent hereunder or thereunder
shall be subject to the terms and conditions of), any Intercreditor Agreement in effect from time
to time. In the event of any conflict between this Agreement and any other Loan Document or
any Intercreditor Agreement, as the case may be, the Intercreditor Agreement shall control, and
no right, power, or remedy granted to the Agent hereunder or under any other Loan Document
shall be exercised by the Agent, and no direction shall be given by the Agent, in contravention of
such Intercreditor Agreement.
15.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Solely to the extent any Lender that is an EEA Financial Institution is a party to this Agreement
and notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to
the extent such liability is unsecured, may be subject to the write-down and conversion powers of
an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise conferred
on it, and that such shares or other instruments of ownership will be accepted by it
in lieu of any rights with respect to any such liability under this Agreement or any
other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the write-down and conversion powers of any EEA Resolution Authority.
15.23. Amendment and Restatement. This Agreement amends and restates in its
entirety the Initial Loan Agreement. This Agreement and the other Loan Documents govern the
present relationship between the Obligors, Agent and Lenders. This Agreement, however, is in
no way intended, nor shall it be construed, to affect, replace, impair or extinguish the creation,
attachment, perfection or priority of the security interests in, and other Liens on, the Collateral,
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which security interests and other Liens each of the Obligors, by this Agreement, acknowledges,
reaffirms and confirms to Agent and Lenders. In addition, except as otherwise provided herein,
all monetary obligations and liabilities and indebtedness created or existing under, pursuant to, or
as a result of, the Initial Loan Agreement, other than Excluded Swap Obligations (the “Initial
Loan Agreement Obligations”) shall continue in existence within the definition of “Obligations”
under this Agreement, which obligations, liabilities and indebtedness the Obligors, by this
Agreement, acknowledge, reaffirm and confirm. The Obligors agree that any outstanding
commitment or other obligation to make advances or otherwise extend credit or credit support to
any Obligor pursuant to the Initial Loan Agreement is superseded by, and renewed and
consolidated under, this Agreement. The Obligors represent and warrant that none of them have
assigned or otherwise transferred any rights arising under the Initial Loan Agreement.
To the extent not amended and restated as of the Closing Date, the Loan Documents
executed in connection with the Initial Loan Agreement and in effect prior to the Closing Date
(the “Existing Loan Documents”) shall continue in full force and effect, are hereby ratified,
reaffirmed and confirmed in all respects, and shall, for the avoidance of doubt, constitute “Loan
Documents” under this Agreement. The terms of the Loan Documents that correspond to the
Existing Loan Documents that have been amended and restated as of the Closing Date shall
govern for any period occurring on or after the Closing Date, and the terms of such Existing
Loan Documents prior to their amendment and restatement shall govern for any period beginning
before the Closing Date and ending on the day immediately preceding the Closing Date. In
furtherance of the foregoing, (i) each reference in any Loan Document to the “Loan Agreement”,
any other Loan Document that is being amended and restated as of the Closing Date,
“thereunder”, “thereof” or words of like import, is hereby amended, mutatis mutandis, as
applicable in the context, to be a reference to, and shall thereafter mean, this Agreement or such
other amended and restated Loan Document, as applicable in the context (as each may be
amended, modified or supplemented and in effect from time to time) and (ii) the definition of
any term defined in any Loan Document by reference to the terms defined in the “Loan
Agreement” or any other Loan Document that is being amended and restated as of the Closing
Date is hereby amended to be defined by reference to the defined term in this Agreement or such
other amended and restated Loan Document, as applicable (as each may be amended, modified
or supplemented and in effect from time to time).
In order to induce Lenders to enter into this Agreement on the Closing Date, each Obligor
hereby represents, warrants and covenants to Lenders that it has determined that each Obligor
will benefit specifically and materially from the amendment and restatement of the Initial Loan
Agreement pursuant to this Agreement on the Closing Date and that each Obligor requested and
bargained for the structure and terms of and security for the Loans contemplated by this
Agreement on the Closing Date.
15.24. Release. EACH OBLIGOR HEREBY ACKNOWLEDGES THAT AS OF
THE DATE HEREOF IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS
COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER
THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF
ITS LIABILITY TO REPAY THE “OBLIGATIONS” OR TO SEEK AFFIRMATIVE
RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM ANY LENDER. EACH
OBLIGOR HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND
FOREVER DISCHARGES AGENT AND EACH LENDER AND THEIR RESPECTIVE
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM
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ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES,
COSTS, EXPENSES, AND LIABILITIES (INCLUDING ALL STRICT LIABILITIES)
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE OF THIS AGREEMENT, WHICH ANY OBLIGOR MAY NOW OR
HEREAFTER HAVE AGAINST AGENT OR ANY LENDER OR ANY OF THEIR
RESPECTIVE PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE
OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, TO THE EXTENT ARISING FROM ANY “LOANS,” INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING,
RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE
HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE INITIAL LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT, AND NEGOTIATION FOR AND EXECUTION OF THIS AGREEMENT.
EACH OBLIGOR WAIVES THE BENEFITS OF ANY LAW, WHICH MAY PROVIDE
IN SUBSTANCE:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN ITS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS
SETTLEMENT WITH THE DEBTOR.”
EACH OBLIGOR UNDERSTANDS THAT THE FACTS WHICH IT BELIEVES
TO BE TRUE AT THE TIME OF MAKING THE RELEASE PROVIDED FOR HEREIN
MAY LATER TURN OUT TO BE DIFFERENT THAN IT NOW BELIEVES, AND
THAT INFORMATION WHICH IS NOT NOW KNOWN OR SUSPECTED MAY
LATER BE DISCOVERED. EACH OBLIGOR ACCEPTS THIS POSSIBILITY, AND
EACH OF THEM ASSUMES THE RISK OF THE FACTS TURNING OUT TO BE
DIFFERENT AND NEW INFORMATION BEING DISCOVERED; AND EACH OF
THEM FURTHER AGREES THAT THE RELEASE PROVIDED FOR HEREIN SHALL
IN ALL RESPECTS CONTINUE TO BE EFFECTIVE AND NOT SUBJECT TO
TERMINATION OR RESCISSION BECAUSE OF ANY DIFFERENCE IN SUCH
FACTS OR ANY NEW INFORMATION.
[Remainder of page intentionally left blank; signatures begin on following page]
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
#53262136
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the
date set forth above.
BORROWERS:
U.S. CONCRETE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, General Counsel and
Secretary
ALLIANCE HAULERS, INC.
ATLAS-TUCK CONCRETE, INC.
BODE CONCRETE LLC
BODE GRAVEL CO.
BRECKENRIDGE READY MIX, INC.
CENTRAL CONCRETE SUPPLY CO., INC.
CENTRAL PRECAST CONCRETE, INC.
COLONIAL CONCRETE, CO.
CUSTOM-CRETE, LLC
EASTERN CONCRETE MATERIALS, INC.
▇▇▇▇▇▇ CONCRETE, LLC
▇▇▇▇▇ GRAVEL COMPANY
LOCAL CONCRETE SUPPLY &
EQUIPMENT, LLC
MASTER MIX, LLC
NEW YORK SAND & STONE, LLC
PEBBLE LANE ASSOCIATES, LLC
REDI-MIX, LLC
USC-JENNA, LLC
USC-NYCON, LLC
SAN DIEGO PRECAST CONCRETE, INC.
▇▇▇▇▇ PRE-CAST, INC.
SUPERIOR CONCRETE MATERIALS, INC.
USC TECHNOLOGIES, INC.
U.S. CONCRETE ON-SITE, INC.
▇▇▇▇▇▇▇ EQUIPMENT LEASING CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
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▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
AGGREGATE & CONCRETE TESTING,
LLC
▇▇▇▇▇▇▇ BROS., LLC
▇▇▇▇▇▇▇ WEST LLC
RIGHT AWAY REDY MIX
INCORPORATED
ROCK TRANSPORT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
USC-KINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Address for Borrowers’ Agent and each
Borrower:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
#53262136
GUARANTORS:
ALBERTA INVESTMENTS, INC.
AMERICAN CONCRETE PRODUCTS, INC.
ATLAS REDI-MIX, LLC
▇▇▇▇▇ CONCRETE ENTERPRISES, LLC
▇▇▇▇▇ INDUSTRIES, INC.
▇▇▇▇▇ INVESTMENT CORPORATION,
INC.
▇▇▇▇▇ MANAGEMENT, INC.
CONCRETE XXXIV ACQUISITION, INC.
CONCRETE XXXV ACQUISITION, INC.
CONCRETE XXXVI ACQUISITION, INC.
CUSTOM-CRETE REDI-MIX, LLC
HAMBURG QUARRY LIMITED LIABILITY
COMPANY
MASTER MIX CONCRETE, LLC
MG, LLC
NYC CONCRETE MATERIALS, LLC
OUTRIGGER, LLC
PREMCO ORGANIZATION, INC.
REDI-MIX CONCRETE, L.P.
REDI-MIX GP, LLC
SIERRA PRECAST, INC.
TITAN CONCRETE INDUSTRIES, INC.
USC ATLANTIC, INC.
USC MANAGEMENT CO., LLC
USC PAYROLL, INC.
U.S. CONCRETE TEXAS HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
OUTRIGGER, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
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YARDARM, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
Address for Borrowers’ Agent and each
Guarantor:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
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AGENT AND LENDERS:
BANK OF AMERICA, N.A.
as Agent, Sole Lead Arranger and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ 1-492-11-23
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Loan Administration Manager
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
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CAPITAL ONE, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Julianne Low
Name: Julianne Low
Title: Senior Director
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Julianne Low, Senior Director
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
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JPMORGAN CHASE BANK, N.A.
as a Syndication Agent and a Lender
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇
Name: J. ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Officer
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Code TX1-2921
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or U.S. Concrete
Account Executive
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
#▇▇▇▇▇▇▇▇
MUFG UNION BANK, N.A.,
as a Syndication Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ 13
Mail Code: ▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
#▇▇▇▇▇▇▇▇
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Raja Khanna
Name: Raja Khanna
Title: Authorized Signatory
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ M5H 1C4
Attn: Global Loans Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT]
#▇▇▇▇▇▇▇▇
SUNTRUST BANK
as a Syndication Agent and a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT A
to
Third Amended and Restated Loan and Security Agreement
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Third Amended and Restated Loan and Security Agreement
dated as of August 31, 2017, as amended (“Loan Agreement”), among ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇ ▇▇▇▇▇▇ limited liability company (“160 East”), AGGREGATE &
CONCRETE TESTING, LLC, a New York limited liability company (“Aggregate”), ALLIANCE
HAULERS, INC., a Texas corporation (“Alliance”), ATLAS-TUCK CONCRETE, INC., an Oklahoma
corporation (“Atlas”), BODE CONCRETE LLC, a California limited liability company (“Bode
Concrete”), BODE GRAVEL CO., a California corporation (“Bode Gravel”), BRECKENRIDGE
READY MIX, INC., a Texas corporation (“Breckenridge”), CENTRAL CONCRETE SUPPLY CO.,
INC., a California corporation (“Central Concrete”), CENTRAL PRECAST CONCRETE, INC., a
California corporation (“Central Precast”), COLONIAL CONCRETE, CO., a New Jersey corporation
(“Colonial”), CUSTOM-CRETE, LLC, a Texas limited liability company (“Custom-Crete”),
EASTERN CONCRETE MATERIALS, INC., a New Jersey corporation (“Eastern”), ▇▇▇▇▇▇▇
BROS., LLC, a Delaware limited liability company (“▇▇▇▇▇▇▇ Bros.”), ▇▇▇▇▇▇▇ WEST LLC, a New
Jersey limited liability company (“▇▇▇▇▇▇▇ West”), ▇▇▇▇▇▇ CONCRETE, LLC, a Texas limited
liability company (“▇▇▇▇▇▇”), ▇▇▇▇▇ GRAVEL COMPANY, a Michigan corporation (“▇▇▇▇▇”),
LOCAL CONCRETE SUPPLY & EQUIPMENT, LLC, a Delaware limited liability company
(“Local”), MASTER MIX, LLC, a Delaware limited liability company (“Master”), NEW YORK
SAND & STONE, LLC, a New York limited liability company (“NYSS”), PEBBLE LANE
ASSOCIATES, LLC, a Delaware limited liability company (“Pebble”), REDI-MIX, LLC, a Texas
limited liability company (“Redi-Mix”), RIGHT AWAY REDY MIX INCORPORATED, a California
corporation (“Right Away Redy Mix”), ROCK TRANSPORT, INC., a California corporation (“Rock
Transport”), SAN DIEGO PRECAST CONCRETE, INC., a Delaware corporation (“San Diego”),
▇▇▇▇▇ PRE-CAST, INC., a Delaware corporation (“▇▇▇▇▇”), SUPERIOR CONCRETE
MATERIALS, INC., a District of Columbia corporation (“Superior”), USC-JENNA, LLC, a Delaware
limited liability company (“Jenna”), USC-KINGS, LLC, a Delaware limited liability company
(“Kings”), USC-NYCON, LLC, a Delaware limited liability company formerly known as Riverside
Materials, LLC (“USC-NYCON”), USC TECHNOLOGIES, INC., a Delaware corporation (“USC”),
U.S. CONCRETE ON-SITE, INC., a Delaware corporation (“On-Site”), ▇▇▇▇▇▇▇ EQUIPMENT
LEASING CORP., a New York corporation (“▇▇▇▇▇▇▇”), and U.S. CONCRETE, INC., a Delaware
corporation (“US Concrete”, and together with 160 East, Aggregate, Alliance, Atlas, Bode Concrete,
Bode Gravel, Breckenridge, Central Concrete, Central Precast, Colonial, Custom-Crete, Eastern, ▇▇▇▇▇▇▇
Bros., ▇▇▇▇▇▇▇ West, Ingram, Kurtz, Local, Master, NYSS, Pebble, Redi-Mix, Right Away Redy Mix,
Rock Transport, San Diego, ▇▇▇▇▇, Superior, Jenna, Kings, USC-NYCON, USC, On-Site, ▇▇▇▇▇▇▇ and
US Concrete, collectively, “Borrowers”), the Guarantors party thereto, BANK OF AMERICA,
N.A., as agent (“Agent”) for the financial institutions from time to time party to the Loan
Agreement (“Lenders”), and such Lenders. Terms are used herein as defined in the Loan
Agreement.
______________________________________ (“Assignor”) and
_________________________ _____________ (“Assignee”) agree as follows:
1. Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes
from Assignor (a) a principal amount of $________ of Assignor’s outstanding Revolver Loans
and $___________ of Assignor’s participations in LC Obligations and (b) the amount of
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$__________ of Assignor’s Revolver Commitment (which represents ____% of the total
Revolver Commitments) (the foregoing items being, collectively, the “Assigned Interest”),
together with an interest in the Loan Documents corresponding to the Assigned Interest. This
Agreement shall be effective as of the date (“Effective Date”) indicated in the corresponding
Assignment Notice delivered to Agent, provided such Assignment Notice is executed by
Assignor, Assignee, Agent and Borrower Agent, if applicable. From and after the Effective
Date, Assignee hereby expressly assumes, and undertakes to perform, all of Assignor’s
obligations in respect of the Assigned Interest, and all principal, interest, fees and other amounts
which would otherwise be payable to or for Assignor’s account in respect of the Assigned
Interest shall be payable to or for Assignee’s account, to the extent such amounts accrue on or
after the Effective Date.
2. Assignor (a) represents that as of the date hereof, prior to giving effect to this
assignment, its Revolver Commitment is $__________, the outstanding balance of its Revolver
Loans and participations in LC Obligations is $__________; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other
instrument or document furnished pursuant thereto, other than that Assignor is the legal and
beneficial owner of the interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or the performance by
Borrowers of their obligations under the Loan Documents. [Assignor is attaching the Note[s]
held by it and requests that Agent exchange such Note[s] for new Notes payable to Assignee
[and Assignor].]
3. Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received copies of the Loan Agreement and
such other Loan Documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees that it shall,
independently and without reliance upon Assignor and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents; (d) confirms that it is an Eligible Assignee;
(e) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Agreement as are delegated to Agent by the terms thereof, together with
such powers as are incidental thereto; (f) agrees that it will observe and perform all obligations
that are required to be performed by it as a “Lender” under the Loan Documents; and
(g) represents and warrants that the assignment evidenced hereby will not result in a non-exempt
“prohibited transaction” under Section 406 of ERISA.
4. This Agreement shall be governed by the laws of the State of Texas. If any
provision is found to be invalid under Applicable Law, it shall be ineffective only to the extent of
such invalidity and the remaining provisions of this Agreement shall remain in full force and
effect.
5. Each notice or other communication hereunder shall be in writing, shall be sent by
messenger, by telecopy or facsimile transmission, or by first-class mail, shall be deemed given
when sent and shall be sent as follows:
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(a) If to Assignee, to the following address (or to such other address as
Assignee may designate from time to time):
__________________________
__________________________
__________________________
(b) If to Assignor, to the following address (or to such other address as
Assignor may designate from time to time):
__________________________
__________________________
__________________________
__________________________
Payments hereunder shall be made by wire transfer of immediately available Dollars as
follows:
If to Assignee, to the following account (or to such other account as Assignee may
designate from time to time):
ABA No.
Account No.
Reference:
If to Assignor, to the following account (or to such other account as Assignor may
designate from time to time):
ABA No.
Account No.
Reference:
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IN WITNESS WHEREOF, this Assignment and Acceptance is executed as of
_____________.
(“Assignee”)
By
Title:
(“Assignor”)
By
Title:
#53262136_v7
EXHIBIT B
to
Third Amended and Restated Loan and Security Agreement
ASSIGNMENT NOTICE
Reference is made to (1) the Third Amended and Restated Loan and Security Agreement
dated as of August 31, 2017, as amended (“Loan Agreement”), among ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇ ▇▇▇▇▇▇ limited liability company (“160 East”), AGGREGATE &
CONCRETE TESTING, LLC, a New York limited liability company (“Aggregate”), ALLIANCE
HAULERS, INC., a Texas corporation (“Alliance”), ATLAS-TUCK CONCRETE, INC., an Oklahoma
corporation (“Atlas”), BODE CONCRETE LLC, a California limited liability company (“Bode
Concrete”), BODE GRAVEL CO., a California corporation (“Bode Gravel”), BRECKENRIDGE
READY MIX, INC., a Texas corporation (“Breckenridge”), CENTRAL CONCRETE SUPPLY CO.,
INC., a California corporation (“Central Concrete”), CENTRAL PRECAST CONCRETE, INC., a
California corporation (“Central Precast”), COLONIAL CONCRETE, CO., a New Jersey corporation
(“Colonial”), CUSTOM-CRETE, LLC, a Texas limited liability company (“Custom-Crete”),
EASTERN CONCRETE MATERIALS, INC., a New Jersey corporation (“Eastern”), ▇▇▇▇▇▇▇
BROS., LLC, a Delaware limited liability company (“▇▇▇▇▇▇▇ Bros.”), ▇▇▇▇▇▇▇ WEST LLC, a New
Jersey limited liability company (“▇▇▇▇▇▇▇ West”), ▇▇▇▇▇▇ CONCRETE, LLC, a Texas limited
liability company (“▇▇▇▇▇▇”), ▇▇▇▇▇ GRAVEL COMPANY, a Michigan corporation (“▇▇▇▇▇”),
LOCAL CONCRETE SUPPLY & EQUIPMENT, LLC, a Delaware limited liability company
(“Local”), MASTER MIX, LLC, a Delaware limited liability company (“Master”), NEW YORK
SAND & STONE, LLC, a New York limited liability company (“NYSS”), PEBBLE LANE
ASSOCIATES, LLC, a Delaware limited liability company (“Pebble”), REDI-MIX, LLC, a Texas
limited liability company (“Redi-Mix”), RIGHT AWAY REDY MIX INCORPORATED, a California
corporation (“Right Away Redy Mix”), ROCK TRANSPORT, INC., a California corporation (“Rock
Transport”), SAN DIEGO PRECAST CONCRETE, INC., a Delaware corporation (“San Diego”),
▇▇▇▇▇ PRE-CAST, INC., a Delaware corporation (“▇▇▇▇▇”), SUPERIOR CONCRETE
MATERIALS, INC., a District of Columbia corporation (“Superior”), USC-JENNA, LLC, a Delaware
limited liability company (“Jenna”), USC-KINGS, LLC, a Delaware limited liability company
(“Kings”), USC-NYCON, LLC, a Delaware limited liability company formerly known as Riverside
Materials, LLC (“USC-NYCON”), USC TECHNOLOGIES, INC., a Delaware corporation (“USC”),
U.S. CONCRETE ON-SITE, INC., a Delaware corporation (“On-Site”), ▇▇▇▇▇▇▇ EQUIPMENT
LEASING CORP., a New York corporation (“▇▇▇▇▇▇▇”), and U.S. CONCRETE, INC., a Delaware
corporation (“US Concrete”, and together with 160 East, Aggregate, Alliance, Atlas, Bode Concrete,
Bode Gravel, Breckenridge, Central Concrete, Central Precast, Colonial, Custom-Crete, Eastern, ▇▇▇▇▇▇▇
Bros., ▇▇▇▇▇▇▇ West, Ingram, Kurtz, Local, Master, NYSS, Pebble, Redi-Mix, Right Away Redy Mix,
Rock Transport, San Diego, ▇▇▇▇▇, Superior, Jenna, Kings, USC-NYCON, USC, On-Site, ▇▇▇▇▇▇▇ and
US Concrete, collectively, “Borrowers”), the Guarantors party thereto, BANK OF AMERICA,
N.A., as agent (“Agent”) for the financial institutions from time to time party to the Loan
Agreement (“Lenders”), and such Lenders; and (2) the Assignment and Acceptance dated as of
____________, 20__ (“Assignment Agreement”), between __________________ (“Assignor”)
and ____________________ (“Assignee”). Terms are used herein as defined in the Loan
Agreement.
Assignor hereby notifies Borrowers and Agent of Assignor’s intent to assign to Assignee
pursuant to the Assignment Agreement (a) a principal amount of $________ of Assignor’s
outstanding Revolver Loans and $___________ of Assignor’s participations in LC Obligations
and (b) the amount of $__________ of Assignor’s Revolver Commitment (which represents
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____% of the total Revolver Commitments) (the foregoing items being, collectively, the
“Assigned Interest”), together with an interest in the Loan Documents corresponding to the
Assigned Interest. This Agreement shall be effective as of the date (“Effective Date”) indicated
below, provided this Assignment Notice is executed by Assignor, Assignee, Agent and Borrower
Agent, if applicable. Pursuant to the Assignment Agreement, Assignee has expressly assumed
all of Assignor’s obligations under the Loan Agreement to the extent of the Assigned Interest, as
of the Effective Date.
For purposes of the Loan Agreement, Agent shall deem Assignor’s Revolver
Commitment to be reduced by $_________, and Assignee’s Revolver Commitment to be
increased by $_________.
The address of Assignee to which notices and information are to be sent under the terms
of the Loan Agreement is:
The address of Assignee to which payments are to be sent under the terms of the Loan
Agreement is shown in the Assignment and Acceptance.
This Notice is being delivered to Borrowers and Agent pursuant to Section 13.3 of the
Loan Agreement. Please acknowledge your acceptance of this Notice by executing and returning
to Assignee and Assignor a copy of this Notice.
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IN WITNESS WHEREOF, this Assignment Notice is executed as of _____________.
(“Assignee”)
By
Title:
(“Assignor”)
By
Title:
ACKNOWLEDGED AND AGREED,
AS OF THE DATE SET FORTH ABOVE:
BORROWER AGENT:*
_________________________________
By_______________________________
Title:
*No signature required if Assignee is a Lender, U.S.-based Affiliate of a Lender or Approved
Fund, or if an Event of Default exists.
BANK OF AMERICA, N.A.,
as Agent
By_______________________________
Title:
#53262136_v7
SCHEDULE 1.1
to
Third Amended and Restated Loan and Security Agreement
COMMITMENTS OF LENDERS
Commitments of Lenders as of the Closing Date:
Lender
Revolver Commitment
BANK OF AMERICA, N.A. $95,000,000
CAPITAL ONE BUSINESS CREDIT CORP. $35,000,000
JPMORGAN CHASE BANK, N.A. $55,000,000
MUFG UNION BANK, N.A. $55,000,000
ROYAL BANK OF CANADA $55,000,000
SUNTRUST BANK $55,000,000
TOTAL: $350,000,000