EXHIBIT 10.1
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this, "Second Amendment"), dated as of August 26, 1998, is entered into among
TEXAS INDUSTRIES, INC., a Delaware corporation (the "Borrower"), the banks
listed on the signature pages hereof (the "Lenders"), certain Co-Agents (the
"Co-Agents"), and NATIONSBANK, N.A. (successor by merger to NationsBank of
Texas, N.A.), as Administrative Lender for the Lenders (in said capacity, the
"Administrative Lender").
BACKGROUND
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A. The Borrower, the Lenders, the Co-Agents, and the
Administrative Lender are parties to that certain Second Amended and Restated
Credit Agreement, dated as of December 18, 1997 as amended by that certain First
Amendment to Second Amendment and Restated Credit Agreement, dated as of May 28,
1998 (said Amended and Restated Credit Agreement, as amended, the "Credit
Agreement"; the terms defined in the Credit Agreement and not otherwise defined
herein shall be used herein as defined in the Credit Agreement).
B. The Borrower, the Lenders, the Co-Agents, and the Administrative
Lender desire to amend the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Co-Agents, and the Administrative Lender covenant and agree as
follows:
1. AMENDMENTS.
(a) Article I of the Credit Agreement is hereby amended by adding the
defined term "Chaparral East Project Letter of Credit" thereto in proper
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alphabetical order to read as follows:
"Chaparral East Proiect Letters of Credit" means those two certain
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irrevocable letters of credit to be issued by the Issuing Bank in
connection with the $75,000,000 Industrial Development Authority of
Xxxxxxxxx County, Virginia Exempt Facility Revenue Bonds (Chaparral East
Project) which shall provide for renewal thereof for additional one-year
periods, but which in no event shall be extended beyond the Maturity Date
(b) Section 2.16(a) of the Credit Agreement is hereby amended by amending
the second and third sentences thereof to read as follows:
"No Letter of Credit (other than the Chaparral East Project Letters of
Credit) shall be issued to support any obligation of the Borrower or
any Subsidiary in respect of debt for borrowed money. No Letter of
Credit (other than the Chaparral East Project Letters of Credit) shall
have an expiration date (including all rights of renewal) later than
the earlier of (i) the Maturity Date or (ii) one year after the date
of issuance thereof."
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
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execution and delivery hereof, the Borrower represents and warrants that, as of
the date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit Agreement
are true and correct on and as of the date hereof as made on and as of such
date;
(b) no event has occurred and is continuing which constitutes a Default or
an Event of Default;
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(c) the Borrower has full power and authority to execute and deliver this
Second Amendment, and this Second Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable debtor relief laws and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and except as rights to indemnity may be limited by federal or state
securities laws;
(d) neither the execution, delivery and performance of this Second
Amendment or the Credit Agreement, as amended by this Second Amendment, nor the
consummation of any transactions herein or therein will contravene or conflict
with any law to which the Borrower or any of its Subsidiaries is subject or any
indenture, agreement or other instrument to which the Borrower or any of its
Subsidiaries or any of their respective property is subject; and
(e) no authorization, approval consent, or other action by, notice to, or
filing with, any governmental authority or other Person is required for the
execution, delivery or performance by the Borrower of this Second Amendment or
the acknowledgment by any Guarantor of this Second Amendment.
3. CONDITIONS OF EFFECTIVENESS. This Second Amendment shall be effective
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as of August 26, 1998, subject to the following:
(a) the Administrative Lender shall have received counterparts of this
Second Amendment executed by the Determining Lenders;
(b) the Administrative Lender shall have received counterparts of this
Second Amendment executed by the Borrower and acknowledged by each Guarantor;
and
(c) the Administrative Lender shall have received, in form and substance
satisfactory to the Administrative Lender and its counsel, such other documents,
certificates and instruments as the Administrative Lender shall require.
4. GUARANTOR'S ACKNOWLEDGMENT. By signing below, each of the Guarantors
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(i) acknowledges, consents and agrees to the execution, delivery and performance
by the Borrower of this Second Amendment, (ii) acknowledges and agrees that its
obligations in respect of its Subsidiary Guaranty are not released, modified,
impaired or affected in any manner by this Second Amendment or any of the
provisions contemplated herein, (iii) ratifies and confirms its obligations
under its Subsidiary Guaranty and (iv) acknowledges and agrees that it has no
claims or offsets against, or defenses or counterclaims to, its Subsidiary
Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
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(a) Upon the effectiveness of this Second Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", or words of like import shall
mean and be a reference to the Credit Agreement, as affected and amended hereby.
(b) The Credit Agreement, as amended by the amendments referred to above,
shall remain in full force and effect and is hereby ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
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costs and expenses of the Administrative Lender in connection with the
preparation, reproduction, execution and delivery of this Second Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Lender with respect thereto and with respect to advising the Administrative
Lender as to its rights and responsibilities under the Credit Agreement, as
hereby amended).
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7. EXECUTION IN COUNTERPARTS. This Second Amendment may be executed in
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any number of counterparts and by different parties hereto in separate
counterparts, each which when so executed and delivered shall be deemed to be an
original and all of which when taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW: BINDING EFFECT. This Second Amendment shall be
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governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon the Borrower and each Lender and their respective
successors and assigns.
9. HEADINGS. Section headings in this Second Amendment are included
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herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS SECOND
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AMENDMENT, 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 ORAL UNWRITTEN
AGREEMENTS BETWEEN THE PARTIES.
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