SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
SECOND
AMENDMENT TO
FIRST
AMENDED AND RESTATED CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second
Amendment"),
dated
as of March 20, 2008, is entered into among TEXAS INDUSTRIES, INC., a
Delaware corporation (the "Borrower"),
the
lenders listed on the signature pages hereof as Lenders (the "Lenders"),
and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
BACKGROUND
A. The
Borrower, the Lenders, the Administrative Agent, the Swing Line Lender and
the
L/C Issuer are parties to that certain First Amended and Restated Credit
Agreement, dated as of August 15, 2007, as amended by that certain First
Amendment to First Amended and Restated Credit Agreement, dated as of
January 28, 2008 (said First 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 has requested certain amendments to the Credit Agreement.
C. The
Lenders, the Administrative Agent, the Swing Line Lender and the L/C Issuer
hereby agree to amend the Credit Agreement, subject to the terms and conditions
set forth herein.
NOW,
THEREFORE, in consideration of the covenants, conditions and agreements
hereafter set forth, and for other good and valuable consideration, the receipt
and adequacy of which are all hereby acknowledged, the Borrower, the Lenders,
the Swing Line Lender, the L/C Issuer and the Administrative Agent covenant
and
agree as follows:
1. AMENDMENTS.
(a) Section 1.01
of the
Credit Agreement is hereby amended by adding the following defined terms thereto
in proper alphabetical order to read as follows:
"Term
Credit Agreement"
means
that certain Term Credit Agreement, dated as of March 20, 2008, among the
Borrower, Bank of America, N.A., as administrative agent, and the lenders party
thereto.
"2005
Indenture"
means
that certain Indenture, dated as of July 6, 2005, among the Borrower,
certain Subsidiaries of the Borrower and Xxxxx Fargo Bank, National Association,
as trustee, providing for the issuance of the 2005 Senior Notes.
"2005
Senior Notes"
means
those certain 7.25% Senior Notes due 2013 of the Borrower issued pursuant to
the
2005 Indenture.
(b) The
defined terms "Disposition"
or
"Dispose"
set
forth in Section 1.01
of the
Credit Agreement are hereby amended to read as follows:
"Disposition"
or
"Dispose"
means
the sale, transfer, license, lease or other disposition (including any sale
and
leaseback transaction) of any property by any Person, including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith, but
excluding licenses of intellectual property and leases of real property entered
into in the ordinary course of business and the granting of Permitted
Liens.
(c) The
defined term "Permitted
Liens"
set
forth in Section 1.01
of the
Credit Agreement is hereby amended by amending clause (a) thereof to read
as follows:
(a) any
Lien
in favor of the Administrative Agent to secure the Guarantied Obligations
(including, without limitation, L/C Obligations, obligations in respect of
Swap
Contracts and Cash Management Obligations, to the extent included within the
definition of Guarantied Obligations);
(d) The
defined term "Senior
Notes"
set
forth in Section 1.01
of the
Credit Agreement is hereby amended to read as follows:
"Senior
Notes"
means
the 2005 Senior Notes and other unsecured senior notes of the Borrower due
2013
or thereafter, provided that the terms (excluding interest rates and fees,
which, however shall be comparable to market interest rates and fees charged
to
companies of financial condition similar to the Borrower at the time such other
senior notes are issued), provisions and covenants governing such other senior
notes taken as a whole (a) are not more restrictive on the Borrower and its
Subsidiaries than this Agreement and (b) do not provide greater enforcement
rights to the holder of such other senior notes than the enforcement rights
of
the Administrative Agent and the Lenders under the Loan Documents; provided
that
terms, provisions and covenants substantially the same as those in the 2005
Indenture shall be deemed to satisfy the requirements of clauses (a) and
(b) of this definition.
(e) Section 2.05(d)
of the
Credit Agreement is hereby amended to read as follows:
(d) Mandatory
Prepayments - Asset Dispositions.
Upon
the Disposition, in any single transaction or series of related transactions,
of
property of the Borrower or its Subsidiaries with a fair market value of
$2,000,000 or more, other than Dispositions permitted by clauses (a)
through (f) of Section 7.05,
the
Borrower shall make a mandatory prepayment of the Term Loans (i) as
provided in Section 2.03(c)
of the
Term Credit Agreement and (ii) at such time as the Term Loans are paid in
full, to the Administrative Agent for the Lenders (and if the Outstanding Amount
of all Loans is zero, pledge to the Administrative Agent cash or cash equivalent
investments in an amount equal to the lesser of (A) the aggregate amount of
the Net Cash Proceeds of such Disposition and (B) any Outstanding Amount of
L/C Obligations) in the aggregate amount equal to the Net Cash Proceeds of
such
Disposition, which prepayment shall be applied to the Loans; provided,
however,
if on
the date of receipt by the Borrower or any of its Subsidiaries of such Net
Cash
Proceeds all of the conditions precedent to a Credit Extension set forth in
Section 4.02
are
satisfied (other than the delivery of a Revolving Loan Notice), the Borrower
shall not be required to make such prepayment.
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(f) Section 5.17
of the
Credit Agreement is hereby amended to read as follows:
5.17 Intellectual
Property; Licenses, Etc. The
Borrower and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively,
"IP
Rights")
that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person, except for such conflicts
that, either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. To the knowledge of the Borrower, no slogan
or other advertising device, product, process, method, substance, part or other
material now employed, or now contemplated to be employed, by the Borrower
or
any Subsidiary
infringes upon any rights held by any other Person, except for such
infringements that, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. No claim or litigation
regarding any of the foregoing is pending or, to the best knowledge of the
Borrower, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(g) Section 6.02
of the
Credit Agreement is hereby amended by amending the penultimate paragraph thereof
to read as follows:
Documents
required to be delivered pursuant to Section 6.01
or
Section 6.02
may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower's website on the Internet at the website
address listed on Schedule 10.02;
or
(ii) on which such documents are posted on the Borrower's behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website
or
whether sponsored by the Administrative Agent); provided
that:
(i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Administrative Agent or such Lender and (ii) the Borrower shall
notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e.,
soft
copies) of such documents. Except for Compliance Certificates required pursuant
to Section 6.02(a),
the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall
have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
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(h) Section 6.04
of the
Credit Agreement is hereby amended to read as follows:
6.04 Payment
of Obligations.
Pay and
discharge as the same shall become due and payable, all its material obligations
and liabilities, including (a) all material tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless
the same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained
by
the Borrower or such Subsidiary; (b) all material lawful claims which, if
unpaid, would by law become a Lien upon its property, unless the same are being
contested in good faith by appropriate proceedings diligently pursued and
adequate reserves in accordance with GAAP are being maintained by the Borrower
or such Subsidiary; and (c) all Debt in a principal amount of at least
$1,000,000, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement pertaining to such
Debt.
(i) Section 6.05
of the
Credit Agreement is hereby amended to read as follows:
6.05 Preservation
of Existence, Etc.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04;
(b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of
business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all
of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
(j) Section 7.03
of the
Credit Agreement is hereby amended by (i) deleting "and" after the end of
clause (j) thereof, (ii) deleting "." after the end of clause (k)
thereof and inserting "; and" in lieu thereof and (iii) adding the
following new clause (l) at the end thereof to read as
follows:
(l) Debt
in
respect of the Term Credit Agreement and any of the other Loan Documents (as
such term is defined in the Term Credit Agreement).
(k) Section 7.05
of the
Credit Agreement is hereby amended by amending clause (d) thereof to read
as follows:
(d) Dispositions
of equipment or real property or other property to the extent (i) such
property is exchanged for credit against the purchase price of property used
or
usable in the conduct of a line of business permitted by Section 7.07
or
(ii) the Net Cash Proceeds of such Disposition are applied within 355 days
after such Disposition to the purchase price or improvement of property used
or
usable in the conduct of a line of business permitted by Section 7.07.
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(l) Section 7.09
of the
Credit Agreement is hereby amended to read as follows:
7.09 Burdensome
Agreements.
Enter
into any Contractual Obligation (other than this Agreement or any other Loan
Document or the Term Credit Agreement or any other "Loan Documents" as defined
in the Term Credit Agreement) that (a) limits the ability (i) of any
Subsidiary to make Restricted Payments to the Borrower or any Guarantor or
to
otherwise transfer property to the Borrower or any Guarantor, (ii) of any
Subsidiary to Guarantee the Debt of the Borrower or (iii) of the Borrower
or any Subsidiary to create, incur, assume or suffer to exist Liens on property
of such Person; provided,
however,
that
the restrictions above shall not (A) prohibit any negative pledge or other
restriction incurred or provided (x) in favor of any holder of Debt
permitted under Section 7.03(d)
or
Section 7.03(k),
in each
case solely to the extent any such negative pledge relates to the property
financed by or the subject of such Debt or (y) with respect to the Senior
Notes, (B) apply to restrictions and conditions relating to the sale of a
Subsidiary pending such sale, provided
such
restrictions or conditions apply only to the Subsidiary that is to be sold
and
such sale is permitted hereunder and (C) apply to customary provisions in
leases and other contracts restricting the assignment or pledge thereof; or
(b) requires the grant of a Lien other than a Permitted Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation
of
such Person.
(m) Article X
of the
Credit Agreement is hereby amended by (i) renumbering Section 10.18
thereto
as "Section 10.19" and (ii) adding a new Section 10.18
thereto
to read as follows:
10.18 2005
Indenture.
The
Borrower hereby informs the Lenders that the Debt evidenced by the Loans and
L/C
Obligations has been incurred pursuant to Section 4.09(b)(i) of the 2005
Indenture. As a result thereof, the Borrower would be able to secure such Debt
pursuant to clause (l) of the definition of "Permitted Liens" as set forth
in Section 1.01 of the 2005 Indenture, subject to the terms of
Section 4.09(b)(i) of the 2005 Indenture.
2. REPRESENTATIONS
AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its
execution and delivery hereof, the Borrower represents and warrants that, as
of
the date hereof:
(a) the
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true and correct on and as of the date hereof as if made
on
and as of such date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall
be
true and correct as of such earlier date;
(b) no
event
has occurred and is continuing which constitutes a Default or an Event of
Default;
(c) (i) the
Borrower has full power and authority to execute and deliver this Second
Amendment, (ii) this Second Amendment has been duly executed and delivered
by the Borrower, and (iii) 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;
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(d) neither
the execution, delivery and performance of this Second Amendment or the Credit
Agreement, as amended hereby, nor the consummation of any transactions
contemplated herein or therein, will conflict with any Law or Organization
Documents of the Borrower, or any indenture, agreement or other instrument
to
which the Borrower or any of its properties are subject; and
(e) no
authorization, approval, consent, or other action by, notice to, or filing
with,
any governmental authority or other Person not previously obtained is required
for (i) the execution, delivery or performance by the Borrower of this
Second Amendment, or (ii) the acknowledgement by each Guarantor of this
Second Amendment.
3. CONDITIONS
TO EFFECTIVENESS.
This
Second Amendment shall be effective upon satisfaction or completion of the
following:
(a) the
Administrative Agent shall have received counterparts of this Second Amendment
executed by the Required Lenders;
(b) the
Administrative Agent shall have received counterparts of this Second Amendment
executed by the Borrower and acknowledged by each Guarantor; and
(c) the
Administrative Agent shall have received, in form and substance satisfactory
to
the Administrative Agent and its counsel, such other documents, certificates
and
instruments as the Administrative Agent shall require.
4. REFERENCE
TO THE CREDIT AGREEMENT.
(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 amendment referred to above, shall remain
in
full force and effect and is hereby ratified and confirmed.
5. COSTS,
EXPENSES AND TAXES.
The
Borrower agrees to pay on demand all costs and expenses of the Administrative
Agent 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 Agent with respect thereto).
6. GUARANTOR'S
ACKNOWLEDGMENT.
By
signing below, each Guarantor (a) acknowledges, consents and agrees to the
execution, delivery and performance by the Borrower of this Second Amendment,
(b) acknowledges and agrees that its obligations in respect of its Guaranty
(i) are not released, diminished, waived, modified, impaired or affected in
any manner by this Second Amendment or any of the provisions contemplated
herein, (c) ratifies and confirms its obligations under its Guaranty, and
(d) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, its Guaranty.
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7. EXECUTION
IN COUNTERPARTS.
This
Second Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of 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. For purposes of this Second
Amendment, a counterpart hereof (or signature page thereto) signed and
transmitted by any Person party hereto to the Administrative Agent (or its
counsel) by facsimile machine, telecopier or electronic mail is to be treated
as
an original. The signature of such Person thereon, for purposes hereof, is
to be
considered as an original signature, and the counterpart (or signature page
thereto) so transmitted is to be considered to have the same binding effect
as
an original signature on an original document.
8. GOVERNING
LAW; BINDING EFFECT.
This
Second Amendment shall be governed by and construed in accordance with the
laws
of the State of Texas applicable to agreements made and to be performed entirely
within such state, and shall be binding upon the parties hereto and their
respective successors and assigns.
9. HEADINGS.
Section
headings in this Second Amendment are included 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 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 UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK
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IN
WITNESS WHEREOF, this Second Amendment is executed as of the date first set
forth above.
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TEXAS
INDUSTRIES, INC.
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By:
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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Vice
President and Treasurer
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Second
Amendment to First Amended and Restated Credit Agreement - Signature
Page
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BANK
OF AMERICA, N.A.,
as Administrative Agent
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
Xxxxx
Xxxxxxx
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Title:
Vice
President
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Second
Amendment to First Amended and Restated Credit Agreement - Signature
Page
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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/
Xxxxx XxXxxxxx
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Name:
Xxxxx XxXxxxxx
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Title:
Senior Vice President
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Second
Amendment to First Amended and Restated Credit Agreement - Signature
Page
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UBS
SECURITIES LLC,
as Syndication Agent
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:Xxxxxxx
X. Xxxxxx
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Title:Director
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By:
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/s/
Xxxx X. Xxxxx
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Name:Xxxx
X. Xxxxx
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Title:Associate
Director
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Second
Amendment to First Amended and Restated Credit Agreement - Signature
Page
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UBS
LOAN FINANCE,
as a Lender
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:Xxxxxxx
X. Xxxxxx
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Title:Director
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By:
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/s/
Xxxx X. Xxxxx
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Name:Xxxx
X. Xxxxx
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Title:Associate
Director
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Second
Amendment to First Amended and Restated Credit
Agreement - Signature Page
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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/
Xxxxxxx X. Xxxxxxxx
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Name:Xxxxxxx
X. Xxxxxxxx
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Title:Vice
President
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Second
Amendment to First Amended and Restated Credit
Agreement - Signature Page
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COMERICA
BANK,
as Co-Documentation Agent and as a Lender
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:Xxxxxxx
X. Xxxxxx
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Title:Vice
President
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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WACHOVIA
BANK, NATIONAL
ASSOCIATION,
as Co-Documentation Agent and
as
a Lender
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By:
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/s/
Xxxxxxxx X. Xxxxxx
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Name:Xxxxxxxx
X. Xxxxxx
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Title:Senior
Vice President
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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SUNTRUST
BANK,
as a Lender
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By:
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/s/
Xxxxx Xxxxx
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Name:Xxxxx
Xxxxx
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Title:Managing
Director
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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U.S.
BANK NATIONAL ASSOCIATION,
as a Lender
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By:
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/s/
Xxxxx X. XxXxxxxx
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Name:Xxxxx
X. XxXxxxxx
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Title:Vice
President
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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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:Xxxx
Xx Xxxx
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Title:Senior
Vice President
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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GENERAL
ELECTRIC CAPITAL
CORPORATION,
as a Lender
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By:
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/s/
Xxxxxx Xxxxx
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Name:Xxxxxx
Xxxxx
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Title:Duly
Authorized Signatory
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Second Amendment to First Amended and Restated Credit
Agreement - Signature Page
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ACKNOWLEDGED
AND AGREED AS OF THE FIRST DAY ABOVE WRITTEN:
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BROOKHOLLOW
CORPORATION
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BROOKHOLLOW
PROPERTIES, INC.
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BROOKHOLLOW
OF ALEXANDRIA, INC.
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BROOKHOLLOW
OF VIRGINIA, INC.
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SOUTHWESTERN
FINANCIAL 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/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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Vice
President and Treasurer
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Second
Amendment to First Amended and Restated Credit
Agreement - Signature Page
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RIVERSIDE
CEMENT COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
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Assistant
General Manager - Treasurer
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Second
Amendment to First Amended and Restated Credit
Agreement - Signature Page
