SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.33
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is entered into as of March 24, 2010, 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.
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent and the lenders named therein are parties to that certain Second Amended and Restated Credit Agreement dated as of June 19, 2009 (as amended, 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 desires to amend certain terms of the Credit Agreement and the Required Lenders 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), Section 7.06 (Restricted Payments) of the Credit Agreement is amended to (i) restate clause (c) thereof in its entirety and (ii) add a new clause (d) thereto immediately following such restated clause (c), in each case as follows:
(c) the Borrower may declare and make cash Dividends ratably to the holders of its common stock in an amount not exceeding (i) $2,500,000 in any single instance (which shall not occur more than four times in any calendar year) or (ii) $10,000,000 in the aggregate during any calendar year, provided that immediately before and after giving effect to any such Dividend there shall exist no Default and, for the 30 consecutive calendar days immediately preceding the declaration of such Dividend and on the date of such declaration after giving pro forma effect to such Dividend, Availability shall exceed the greater of $60,000,000 or 30% of the Aggregate Commitments at all times; and
(d) the Borrower may declare and make other Restricted Payments payable in cash, provided that immediately before and after giving effect to any such Restricted Payment there shall exist no Default and the Minimum Covenant Threshold shall be satisfied.
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 the Required Lenders 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 Required 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:
TEXAS INDUSTRIES, INC., a Delaware | ||
| By: | /s/ T. Xxxxxx Xxxxx | |
| Name: T. Xxxxxx Xxxxx | ||
| Title: Vice President-Corporate Controller/Assistant Treasurer | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| ADMINISTRATIVE AGENT AND LENDERS:
BANK OF AMERICA, N.A., as Administrative | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | ||
| Title: Senior Vice President | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| UBS LOAN FINANCE, as a Lender | ||
| By: | /s/ Xxxx X. Xxxx | |
| Name: Xxxx X. Xxxx | ||
| Title: Associate Director | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: Xxxx X. Xxxxx | ||
| Title: Associate Director | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: VP, Senior Relationship Manager | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| COMERICA BANK, as a Lender | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx Young | |
| Name: Xxxxxxxxx Xxxxxxx Xxxxx | ||
| Title: Vice President | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| SUNTRUST BANK, as a Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Vice President | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Relationship Manager | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| CAPITAL ONE, N.A., as a Lender | ||
| By: | /s/ Xxxx Xx Xxxx | |
| Name: Xxxx Xx Xxxx | ||
| Title: Senior Vice President | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | ||
| Title: Duly Authorized Signatory | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
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 BROOK HOLLOW PROPERTIES, INC. BROOKHOLLOW OF ALEXANDRIA, INC. BROOKHOLLOW OF VIRGINIA, INC. SOUTHWESTERN FINANCIAL CORPORATION CREOLE CORPORATION XXXXXX LIMESTONE PRODUCTS, INC. RIVERSIDE CEMENT HOLDINGS COMPANY TXI AVIATION, INC. TXI CEMENT COMPANY TXI RIVERSIDE INC. TXI TRANSPORTATION COMPANY TXI CALIFORNIA INC. PACIFIC CUSTOM MATERIALS, INC. TXI POWER COMPANY TEXAS INDUSTRIES HOLDINGS, LLC TEXAS INDUSTRIES TRUST TXI LLC TXI OPERATING TRUST | ||
| By: | /s/ T. Xxxxxx Xxxxx | |
| Name: T. Xxxxxx Xxxxx | ||
| Title: Authorized Officer | ||
| RIVERSIDE CEMENT COMPANY | ||
| By: | /s/ T. Xxxxxx Xxxxx | |
| Name: T. Xxxxxx Xxxxx | ||
| Title: Assistant General Manager-Controller and Assistant Treasurer | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
| TXI OPERATIONS, LP | ||
| By: | TXI Operating Trust, its general partner | |
| By: | /s/ T. Xxxxxx Xxxxx | |
| Name: T. Xxxxxx Xxxxx | ||
| Title: Vice President-Corporate Controller/Assistant Treasurer | ||
[Signature Page to Second Amendment to Second Amended and Restated Credit Agreement]
