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 disbursement
