Attached files
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| EX-10.1 - U.S. CONCRETE, INC. | v194354_ex10-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported) August 16, 2010
U.S.
CONCRETE, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
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000-26025
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76-0586680
|
||
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(State
or other jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
2925
Briarpark, Suite 1050, Houston, Texas 77042
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (713) 499-6200
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement.
On August
16, 2010, U.S. Concrete, Inc. (the “Company”) entered into a Support Agreement
(the “Support Agreement”) among the Company and each of the affiliates of
Monarch Alternative Capital LP set forth on the signature pages thereto, each of
the affiliates of York Credit Opportunities Domestic Holdings, LLC set forth on
the signature pages thereto and each of the affiliates of Whitebox Advisors, LLC
set forth on the signature pages thereto (collectively, the “Put Option
Parties”) pursuant to which the Put Option Parties have granted the Company a
put option (the “Put Option”). If the Company exercises the Put
Option, each of the Put Option Parties (collectively with its affiliates) will
be obligated to purchase an aggregate principal amount of convertible secured
notes (the “Convertible Notes”) equal to 33.3% multiplied by the difference
between (i) $55.0 million and (ii) the Aggregate Amount (defined below) of
Convertible Notes that have been subscribed for by eligible holders of the
Existing Notes.
As
disclosed in our Current Report on Form 8-K filed April 29, 2010, the Company
and its affiliated debtors and debtors-in-possession (the “Debtors”) are each
subject to a voluntary case (the “Cases”) under chapter 11 of title 11 of the
United States Code, in the United States Bankruptcy Court (the “Bankruptcy
Court”) for the District of Delaware. The Debtors will be reorganized
pursuant to a joint plan of reorganization, dated as of June 2, 2010 (the
“Plan”).
The terms
of the Convertible Notes will be on terms set forth in the purchase letter dated
July 22, 2010 among the Company, Monarch Alternative Capital, L.P., Whitebox
Advisors, LLC and York Capital Management Global Advisors, LLC. The
terms of the Purchase Letter are described in the Company’s Current Report on
Form 8-K filed on July 22, 2010, which description is incorporated herein by
reference.
Proceeds
of the Convertible Notes will be used to repay in full the Debtors’ existing
debtor-in possession financing (described in our Current Report on Form 8-K
filed May 3, 2010) (the “DIP Credit Facility”), to fund ongoing operations and
obligations under the Plan and for working capital and general corporate
purposes of the Company and its subsidiaries.
2
Each Put
Option Party’s commitment is subject to, among other things, (1) not later than
August 18, 2010, the entry of an order by the Bankruptcy Court in the Cases, in
form and substance reasonably satisfactory to the Put Option Parties, (i)
approving the Purchase Letter and (ii) otherwise authorizing the Debtors to
execute, perform and incur their obligations under the Purchase Letter,
including the payment of fees and expenses and the provision of indemnities as
set forth therein; (2) each of the representations of the Company set forth in
the Support Agreement being true and correct in all material respects, except
for representations and warranties made as of a specified date, which shall be
true and correct only as of the specified date; (3) the Company and each of its
guarantors complying in all material respects with all covenants, agreements and
conditions required by the Support Agreement and the Definitive Documentation
(as defined in the Support Agreement) to which it is a party to be performed,
satisfied or complied with by the Company or its guarantors on or prior to the
Closing Date; (4) there not having occurred a dismissal or conversion of any
Chapter 11 Case to a case under Chapter 7 of the Bankruptcy Code or the
appointment of a Chapter 11 trustee in any Chapter 11 Case; (5) no provision of
the Plan (as filed with the Bankruptcy Court) having been amended, supplemented
or otherwise modified in any respect in a manner materially adverse to the Put
Option Parties without the consent of the Put Option Parties (such consent not
to be unreasonably withheld or delayed); (6) the order of the Bankruptcy Court
confirming the Plan (the “Confirmation Order”) by the Bankruptcy Court in the
Cases having become a final order, in full force and effect without reversal,
modification or stay; the Plan having been consummated on the terms and
conditions set forth therein, as amended and in effect as of the date of the
Confirmation Order; (7) the Company having provided evidence to the Put Option
Parties, in form and substance reasonably satisfactory to the Put Option
Parties, if available, that substantially concurrently with the issuance of the
Convertible Notes all obligations under the DIP Credit Facility (other than
contingent obligations not then due and payable) will have been repaid in full,
all commitments under the DIP Credit Facility will have been terminated and all
liens and security interests related to the DIP Credit Facility will have been
terminated or released; (8) except to the extent disclosed by the Company
in any filing made by the Company with the Securities and Exchange Commission
(the “SEC”) prior to July 20, 2010, in the Plan or in writing to the Put Option
Parties on July 20, 2010, (i) there not occurring or becoming known to the Put
Option Parties any events, developments, conditions or circumstances that,
individually or in the aggregate, have had or could reasonably be expected to
have a material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of the Company and its direct and indirect
subsidiaries, taken as a whole (or the reorganized Company and its direct and
indirect subsidiaries, taken as a whole), and (ii) no material assets of
the Debtors having been sold or agreed to be sold outside of the ordinary course
of business from and after the date of the Support Agreement; (9) (i) the
Company and the Put Option Parties having entered into the Definitive
Documentation and the Company shall have delivered executed versions of the
Definitive Documentation to the Put Option Parties on the Closing Date and (ii)
on the date on which the Plan becomes effective (the “Effective Date”)
(A) there not being any event or condition which constitutes an event of
default, or which upon notice, lapse of time, or both would constitute an event
of default, under the Definitive Documentation and (B) the Definitive
Documentation being in full force and effect; (10) the Company having paid the
fees and reimbursement of out-of-pocket costs and expenses as set forth in the
Support Agreement, in the Plan and pursuant to that certain expense letter
agreement, dated as of February 22, 2010, between the Company and Paul, Weiss,
Rifkind, Wharton & Garrison LLP (“Paul Weiss”), regarding payment by
the Company of fees and expenses to Paul Weiss as counsel to a group formed by
certain holders of the Company’s 8.375% Senior Subordinated Notes due 2014 (the
“Existing Notes”), in accordance with the terms hereof and thereof; provided,
that the Put Option Parties shall cause Paul Weiss to provide the Company with
an estimate of its fees and expenses through the date of the closing ( the
“Closing Date”) of the opportunity for certain holders of Existing Notes to
purchase Convertible Notes in an amount up to their pro rata holdings of the
Existing Notes (the “Subscription Offer”) at least two business days
prior to the Closing Date; (11) the Effective Date and the Closing Date
occurring on or prior to October 1, 2010; (12) as of the date of the
Supplement to the Disclosure Statement of the Company (the “Supplement”) and on
the Closing Date, the materials being used in connection with the Subscription
Offer regarding the Company, its subsidiaries and the Convertible Notes (which
include the Supplement), for distribution to other holders of the Existing
Notes, when furnished and taken as a whole, are complete and correct in all
material respects and do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which such statements are made, not
misleading; (13) each of the Company’s filings with the SEC since January 1,
2010 being, as of its respective filing date, complete and correct in all
material respects and not containing any untrue statement of a material fact or
omitting to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which such statements are made, not
misleading; and (14) substantially concurrently with the issuance of the
Convertible Notes (i) the Debtors and the lenders under the Company’s new
revolving exit facility, as contemplated in the Supplement (the “Revolving
Facility”), having entered into the definitive documentation for the Revolving
Facility and any related documentation and reasonably satisfactory to the Put
Option Parties, (ii) all conditions to borrowing under the Revolving
Facility will have been satisfied or waived (provided that if such waiver could
reasonably be expected to be adverse in any material respect to the interests of
the Put Option Parties, the Put Option Parties shall have consented to such
waiver) on or prior to the Effective Date and (iii) on the Effective Date
(y) there has not been any event or condition which constitutes an event of
default, or which upon notice, lapse of time, or both would become an event of
default, under the Revolving Facility and (z) the Revolving Facility being
in full force and effect.
3
The
Support Agreement will terminate on the earlier of (1) the mutual written
agreement of the Company and the Put Option Parties; (2) written notice by the
Company to the Put Option Parties after October 1, 2010 (the “Drop Dead Date”)
so long as the Company is not in material breach of its obligations under the
Support Agreement; (3) written notice by the Put Option Parties to the
Company after the Drop Dead Date so long as the Put Option Parties are not in
material breach of their obligations under the Support Agreement; (4) 10 days
after the Put Option Parties have delivered written notice to the Company that
the Company has materially breached the Support Agreement, if such breach
remains uncured at the conclusion of such 10-day period; provided that in no
event shall this cure period limit the right of the Put Option Parties to
terminate after the Drop Dead Date; or (5) 10 days after the Company has
delivered notice to the Put Option Parties that the Put Option Parties have
materially breached this Agreement, if such breach remains uncured at the
conclusion of such 10-day period; provided that in no event shall this cure
period limit the right of the Company to terminate after the Drop Dead
Date.
Item
9.01 Financial Statements and Exhibits.
(c)
Exhibits
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Exhibit
No.
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Exhibit
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10.1
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Support
Agreement, dated August 16, 2010 among U.S. Concrete, Inc., the affiliates
of Monarch Alternative Capital, LP set forth on the signature pages
thereto, the affiliates of Whitebox Advisors, LLC set forth on the
signature pages thereto and the affiliates of York Capital Management
Global Advisors, LLC set forth on the signature pages
thereto.
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4
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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U.S.
CONCRETE, INC.
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Date:
August 16, 2010
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By:
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/s/ Michael W.
Harlan
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Michael
W. Harlan
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President
and Chief Executive
Officer
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