EX-4.4 3 dex44.txt FIRST AMENDMENT TO NOTE AGREEMENT EXECUTION COPY EXHIBIT 4.4 FIRST AMENDMENT TO NOTE AGREEMENT THIS FIRST AMENDMENT TO NOTE AGREEMENT (this "Amendment"), dated as of November 30, 2001, among U.S. CONCRETE, INC., a Delaware corporation (the "Company"), and the financial institutions listed on the signature pages hereto as Purchasers (the "Purchasers"), amends the Agreement referred to below. All capitalized terms used herein and not otherwise defined shall have the meanings provided such terms in the Agreement referred to below. W I T N E S S E T H : - - - - - - - - - - WHEREAS, the Company and the Purchasers are parties to a Note Agreement, dated as of November 10, 2000 (as amended, modified and/or supplemented prior to the date hereof, the "Agreement"); and WHEREAS, the Company has requested that the Purchasers amend the Agreement to modify the definitions of Consolidated Net Earnings, EBITDA and Pro Forma Operating Income as contained in this Amendment and the Purchasers are willing to amend such term in accordance with the terms of this Amendment; NOW, THEREFORE, it is agreed: 1. The Purchasers and the Company hereby amend the definitions of "EBITDA", "Consolidated Net Earnings" and "Pro Forma Operating Income" in Section 11 of the Agreement as follows: "Consolidated Net Earnings" of any Person for any period shall mean the net income (or loss) of such Person and its Subsidiaries for such period, excluding (i) any extraordinary items, (ii) any equity interest of such Person in the unremitted earnings of any Person which is not a Subsidiary of such Person and (iii) all non-cash gains as determined on a consolidated basis in accordance with generally accepted accounting principles. "EBITDA" shall mean, for any period, the sum of: (i) the Consolidated Net Earnings of the Company for such period, plus (to the extent deducted in determining Consolidated Net Earnings of the Company for such period) the aggregate amount of federal, state and local income and franchise taxes, interest 1 expense, depreciation expense and amortization expense and other non-cash charges for such period; and (ii) to the extent not included in determining the amount in clause (i), above, for such period, Pro Forma Operating Income. "Pro Forma Operating Income" shall mean for each Qualified Company whose Acquisition by the Company occurs during the four consecutive fiscal quarter period preceding the date as of which EBITDA is being calculated and with respect to the period beginning four fiscal quarters prior to the calculation of EBITDA through the date of such Acquisition, the sum of Consolidated Net Earnings of such Qualified Company for such period, plus (to the extent deducted in determining Consolidated Net Earnings of such Qualified Company for such period) the aggregate amount of federal, state and local income and franchise taxes, interest expense, depreciation expense and amortization expense and other non-cash charges for such period, plus or minus, as applicable, Add-Back Adjustments with respect to such Qualified Company, in the case of each such item equal to the amount of such item as set forth in the pro forma presentation of the results of such Acquisition contained in the applicable form filed or to the filed by the Company with the Securities and Exchange Commission reporting such Acquisition. 2. In order to induce the Purchasers to enter into this Amendment, the Company hereby represents and warrants that no Default or Event of Default exists as of the Effective Date (as defined below) after giving effect to this Amendment. 3. In order to induce the Purchasers to enter into this Amendment, each of the parties listed on the signature page as Guarantors hereby ratifies and confirms that the Guaranty Agreement of such Guarantor remains in full force and effect after giving effect to this Amendment. 4. This Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Agreement. 5. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. 6. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE THIS AMENDMENT TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH OR THE RIGHTS OF THE PARTIES TO BE GOVERNED BY THE LAWS OF ANY OTHER JURISDICTION). 2 7. This Amendment shall become effective on the date (the "Effective Date") when the Company and the Required Holders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile transmission) the same to the Company. 8. From and after the Effective Date, all references in the Agreement shall be deemed to be references to the Agreement as amended hereby. [Rest of Page Intentionally Left Blank] 3 IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute and deliver this Amendment as of the date first above written. "Company" U.S. CONCRETE, INC. By: /s/ MICHAEL W. HARLAN ------------------------------------- Michael W. Harlan Senior Vice President "Purchasers" THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: /s/ CHRIS BRUCE ------------------------------------- Vice President METROPOLITAN LIFE INSURANCE COMPANY By:______________________________________ Title:___________________________________ TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA By: /s/ LOREN S. ARCHIBALD ------------------------------------- Managing Director 4 CONNECTICUT GENERAL LIFE INSURANCE COMPANY By: CIGNA, Investments, Inc. (authorized agent) By: /s/ DEBRA J. HEIGHT -------------------------------- Title: Managing Director ALLSTATE LIFE INSURANCE COMPANY By: /s/ PATRICIA WILSON ------------------------------------- By: /s/ DANIEL C. LEIMBACH ------------------------------------- ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK By: /s/ PATRICIA WILSON ------------------------------------- By: /s/ DANIEL C. LEIMBACH ------------------------------------- SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY By:______________________________________ Title:___________________________________ 5 Acknowledged and Agreed to: "Guarantors" AFTM CORPORATION, a Michigan corporation AMERICAN CONCRETE PRODUCTS, INC., a California corporation ATLAS-TUCK CONCRETE, INC., an Oklahoma corporation BEALL INDUSTRIES, INC., a Texas corporation BEALL MANAGEMENT, INC., a Texas corporation CENTRAL CONCRETE CORP., a Delaware corporation CENTRAL CONCRETE SUPPLY CO., INC., a California corporation CENTRAL PRECAST CONCRETE, INC., a California corporation CORDEN, INC., a Michigan corporation CORNILLIE FUEL & SUPPLY, INC., a Michigan corporation CORNILLIE LEASING, INC., a Michigan corporation DENCOR, INC., a Michigan corporation DYNA, INC., a Delaware corporation E.B. METZEN, INC., a Michigan corporation EASTERN CONCRETE MATERIALS, INC., a New Jersey corporation FENDT TRANSIT MIX, INC., a Michigan corporation HUNTER EQUIPMENT COMPANY, a Michigan corporation SUPERIOR CONCRETE MATERIALS, INC. (f/k/a) OPPORTUNITY CONCRETE CORPORATION, a District of Columbia corporation READY MIX CONCRETE COMPANY OF KNOXVILLE, a Delaware corporation SAN DIEGO PRECAST CONCRETE, INC., a Delaware corporation SIERRA PRECAST, INC., a California corporation SMITH PRE-CAST, INC., a Delaware corporation USC GP, INC., a Delaware corporation USC MIDSOUTH, INC., a Delaware corporation WYOMING CONCRETE INDUSTRIES, INC., a Delaware corporation By: /s/ MICHAEL W. HARLAN ------------------------------------------------ Michael W. Harlan Vice President 6 USC MANAGEMENT CO., LP, a Texas limited partnership By: USC GP, INC., its General Partner By: /s/ MICHAEL W. HARLAN ------------------------------------------ Michael W. Harlan Vice President BEALL CONCRETE ENTERPRISES, LTD., a Texas limited partnership By: BEALL MANAGEMENT, INC., its General Partner By: /s/ MICHAEL W. HARLAN ------------------------------------------ Michael W. Harlan Vice President CARRIER EXCAVATION AND FOUNDATION COMPANY, a Delaware corporation CONCRETE XX ACQUISITION, INC., a Delaware corporation PREMIX CONCRETE CORP., a Delaware corporation SUPERIOR REDI-MIX, INC., a Michigan corporation By: /s/ CHARLES W. SOMMER ---------------------------------------------- Charles W. Sommer Vice President 7 B.W.B., INC. OF MICHIGAN, a Delaware corporation CENTRAL CONCRETE CORP., a Delaware corporation OLIVE BRANCH READY MIX, INC., a Delaware corporation SUPERIOR MATERIALS COMPANY, INC., a Delaware corporation By: /s/ DONALD WAYNE ---------------------------------------------- Donald Wayne Vice President 8