FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”)
is entered into as of June 19, 2009, by and among TEXAS INDUSTRIES, INC., a
Delaware corporation (the “Borrower”),
BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative
Agent”), and the financial institutions named on the signature pages
hereto (the “Lenders”).
WITNESSETH:
WHEREAS,
the Borrower, the Administrative Agent and the Lenders are parties to that
certain Second Amended and Restated Credit Agreement dated as of June 19,
2009 (the “Credit
Agreement”) (capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit
Agreement);
WHEREAS,
the Borrower and the Lenders desire to amend certain terms of the Credit
Agreement and have agreed to such amendments on the terms and conditions of this
Amendment;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained and intending to be legally bound hereby, the parties hereby agree as
follows:
Section
1.
Amendments. Effective
as of the Effective Date (defined below), the Credit Agreement is hereby amended
as follows:
1.1. Amendments to Voting
Rights.
(a) Amendment to Section 9.10 of
the Credit Agreement. Section 9.10 of the Credit
Agreement is amended to amend and restate clause (a)(iii) thereof in its
entirety as follows:
(iii) if
approved, authorized or ratified in writing by the Required Lenders, provided,
that a release of the Administrative Agent’s Lien on all or substantially all of
the Collateral shall require the written approval of all Lenders pursuant to
Section
10.01(j);
(b) Amendment to Section 10.01
of the Credit Agreement. Section 10.01 of the Credit
Agreement is amended to add the following clauses after clause (g)
thereof:
(h) amend
the definition of “Borrowing Base” without the written consent of each
Lender;
(i)
increase any of the advance rates set forth in the definitions of “Accounts
Formula Amount”, “Inventory Formula Amount” or “Rolling Stock Formula Amount”
without the written consent of each Lender; or
(j)
release all or substantially all of the Collateral without the written consent
of each Lender;
1.2 Amendments Regarding
Defaulting Lenders.
(a) Amendment to Section 2.09 of
the Credit Agreement. Section 2.09 of the Credit
Agreement is amended to add the following sentence to the end of clause (a)
thereof:
Notwithstanding
anything to the contrary herein, no Commitment Fee shall be payable to any
Defaulting Lender with respect to any period of time during which it is a
Defaulting Lender.
(b) Amendment to Section 2.12 of
the Credit Agreement. Section 2.12 of the Credit
Agreement is amended to add the following two sentences to the end of
clause (a) thereof:
Notwithstanding
the foregoing, the Administrative Agent may (but is not required to), in its
discretion, retain any payments or other funds received by the Administrative
Agent that are to be provided to a Defaulting Lender hereunder, and may apply
such funds to such Lender’s defaulted obligations, hold such funds as collateral
for such Lender's defaulted obligations, or readvance the funds to the Borrower
in accordance with this Agreement. A Defaulting Lender shall not be
entitled to any interest on any amounts held by the Administrative Agent
pursuant to the preceding sentence.
1.3. Amendments to Bank Product
Reserve and Waterfall.
(a) Amendment to Section 1.01 of
the Credit Agreement. Section 1.01 of the Credit
Agreement is amended to amend and restate clause (ii) of the defined term
“Secured Obligations” in its entirety as follows:
(ii) the
estimated maximum dollar amount of obligations arising thereunder (“Bank Product
Amount”), and
(b) Amendment to Section 8.03 of
the Credit Agreement. Section 8.03 of the Credit
Agreement is amended to amend and restate clauses Second, Fourth and Sixth thereof in
their entirety as follows:
Second, to payment of
that portion of the Secured Obligations constituting fees, indemnities and other
amounts (other than principal, interest, Letter of Credit Fees, Cash Management
Obligations and Swap Obligations) payable to the Lenders and the L/C Issuer
(including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be
employees of any Lender or the L/C Issuer) and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause
Second payable
to them;
Fourth, to payment of
that portion of the Secured Obligations constituting unpaid principal of the
Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in
proportion to the respective amounts described in this clause Fourth held by
them;
Sixth, to payment of
the remaining portion of the Secured Obligations (including Cash Management
Obligations and Swap Obligations), ratably among the Lenders in proportion to
the respective amounts described in this clause Sixth held by them;
and
Section
2. Effectiveness. This
Amendment shall be effective automatically and without the necessity of any
further action when the Administrative Agent has received (a) counterparts
hereof duly executed by the Borrower and each Lender and (b) a consent executed
by the Guarantors pursuant to which each Guarantor consents to the amendment of
the Credit Agreement contemplated hereby and reaffirms its obligations under the
Guaranty (such date, the “Effective
Date”).
Section
3. Reaffirmation of
Representations
and Warranties. To induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants that, except to the
extent such representations and warranties specifically refer to an earlier
date, each representation and warranty of the Borrower contained in the Credit
Agreement and the other Loan Documents is true and correct in all material
respects on the date hereof and after giving effect to the amendments set forth
herein.
Section
4. Miscellaneous.
4.1 Reaffirmation of Loan
Documents; Liens. All of the terms and provisions of the
Credit Agreement and the other Loan Documents shall, except as amended and
modified hereby, remain in full force and effect. The Borrower agrees
that the amendments and modifications herein contained shall in no manner
adversely affect or impair the Obligations or the Liens securing payment and
performance thereof.
4.2 Parties in
Interest. All of the terms and provisions of this Amendment
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
4.3 Counterparts. This
Amendment may be executed in counterparts, and all parties need not execute the
same counterpart. Facsimiles shall be effective as
originals.
4.4 Complete
Agreement. THIS AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE
PARTIES.
4.5 Headings. The
headings and captions used in this Amendment are for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Amendment, nor
affect the meaning thereof.
4.6 Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of Texas.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers on the date and year first
above written.
BORROWER:
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TEXAS INDUSTRIES, INC.,
a Delaware corporation
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Treasurer
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ADMINISTRATIVE AGENT AND
LENDERS:
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BANK OF AMERICA, N.A.,
as Administrative
Agent
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By:
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/s/ Xxx X. Xxxxxxxxxxx
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Name:
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Xxx
X. Xxxxxxxxxxx
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Title:
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Senior
Vice
President
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BANK OF AMERICA, N.A.,
as a Lender,
L/C
Issuer and Swing Line Lender
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By:
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/s/ Xxx X. Xxxxxxxxxxx
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Name:
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Xxx
X. Xxxxxxxxxxx
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Title:
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Senior
Vice President
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UBS LOAN FINANCE, as a
Lender
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By:
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/s/ Xxxx X. Xxxx
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Name:
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Xxxx
X. Xxxx
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Title:
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Associate
Director
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Associate
Director
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as
Co-Documentation Agent and
as
a Lender
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By
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: /s/ Xxxx Xxxxxxxx
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Name:
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Xxxx
Xxxxxxxx
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Title:
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Vice
President
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COMERICA BANK, as
Co-Documentation Agent
and
as a Lender
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By:
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/s/ Xxxxxxxxx Xxxxx
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Name:
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Xxxxxxxxx
Xxxxxxx Xxxxx
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Title:
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Vice
President
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SUNTRUST BANK, as a
Lender
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By:
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/s/ J Xxxxxx Xxxxxx III
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Name:
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J
Xxxxxx Xxxxxx, III
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Title:
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Vice
President
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U.S. BANK NATIONAL
ASSOCIATION, as a
Lender
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By:
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/s/ Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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Title:
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Assistant
Vice-President
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CAPITAL ONE, N.A., as a Lender
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By:
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/s/ Xxxx Xx Xxxx
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Name:
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Xxxx
Xx Xxxx
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Title:
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Senior
Vice President
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GENERAL
ELECTRIC CAPITAL
CORPORATION, as a
Lender
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By:
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/s/ Xxxxx Xxxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxxx
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Title:
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Vice
President
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CONSENT
OF GUARANTORS
Each
Guarantor hereby consents and agrees to the amendment of the Credit Agreement
pursuant to this Amendment and further agrees that the Guaranty shall remain in
full force and effect and shall continue to be the legal, valid and binding
obligation of such Guarantor enforceable against it in accordance with the terms
thereof.
BROOKHOLLOW
CORPORATION
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BROOK
HOLLOW PROPERTIES, INC.
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BROOKHOLLOW
OF ALEXANDRIA, INC.
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BROOKHOLLOW
OF VIRGINIA, INC.
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SOUTHWESTERN
FINANCIAL
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CORPORATION
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CREOLE
CORPORATION
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XXXXXX
LIMESTONE PRODUCTS, INC.
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RIVERSIDE
CEMENT HOLDINGS COMPANY
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TXI
AVIATION, INC.
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TXI
CEMENT COMPANY
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TXI
RIVERSIDE INC.
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TXI
TRANSPORTATION COMPANY
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TXI
CALIFORNIA INC.
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PACIFIC
CUSTOM MATERIALS, INC.
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TXI
POWER COMPANY
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TEXAS
INDUSTRIES HOLDINGS, LLC
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TEXAS
INDUSTRIES TRUST
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TXI
LLC
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TXI
OPERATING TRUST
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Treasurer
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RIVERSIDE
CEMENT COMPANY
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Treasurer
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TXI
OPERATIONS, LP
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By:
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TXI
Operating Trust, its general partner
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Treasurer
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