EXHIBIT 10.4
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this
"First Amendment"), dated as of May 25, 2001, is entered into among TEXAS
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INDUSTRIES, INC., a Delaware corporation (the "Borrower"), the banks listed on
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the signature pages hereof (the "Lenders"), certain Co-Agents (the "Co-Agents"),
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and BANK OF AMERICA, N.A. (formerly known as NationsBank, N.A.), as
Administrative Lender for the Lenders (in said capacity, the "Administrative
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Lender").
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BACKGROUND
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A. The Borrower, the Lenders, the Co-Agents, and the Administrative Lender
are parties to that certain Third Amended and Restated Credit Agreement, dated
as of March 10, 1999 (said Third Amended and Restated Credit Agreement, as
amended, the "Credit Agreement"; the terms defined in the Credit Agreement and
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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.
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(a) The definition of "Applicable Margin" set forth in Section 1.1 of the
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Credit Agreement is hereby amended to read as follows:
"Applicable Margin" means the following per annum percentages,
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applicable in the following situations:
Base Rate LIBOR
Applicability Margin Margin
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(i) Category 1 - The Leverage Ratio is greater than 4.00 to 1 1.250% 2.750%
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(ii) Category 2 - The Leverage Ratio is less than or equal to 4.00 to 1 but 1.000% 2.500%
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greater than 3.50 to 1
(iii) Category 3 - The Leverage Ratio is less than or equal to 3.50 to 1 but 0.500% 2.000%
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greater than 3.00 to 1
(iv) Category 4 - The Leverage Ratio is less than or equal to 3.00 to 1 but 0.250% 1.750%
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greater than 2.00 to 1
(v) Category 5 - The Leverage Ratio is less than or equal to 2.00 to 1 0.000% 1.250%
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37-1
The Applicable Margin payable by the Borrower on the Revolving Credit
Advances outstanding hereunder shall be subject to reduction or increase,
as applicable and as set forth in the table above, on a quarterly basis
according to the performance of the Borrower as tested by the Leverage
Ratio; provided, that each adjustment in the Applicable Margin shall be
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effective as of the first day of the month immediately following the month
in which the Administrative Lender receives the financial statements
required pursuant to Section 6.1 or 6.2 hereof, as appropriate. If
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financial statements of the Borrower (and corresponding Compliance
Certificate setting forth the Leverage Ratio) are not received by the
Administrative Lender by the date required pursuant to Section 6.1 or 6.2
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hereof, as appropriate, the Applicable Margin shall be determined pursuant
to Category 1 above until such time as such financial statements and
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Compliance Certificate are received. The Applicable Margin shall be
determined pursuant to Category 1 from and including May 25, 2001 until
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such time as a calculation of the Leverage Ratio which would result in an
adjustment of the Applicable Margin is received.
(b) The definition of "Loan Documents" set forth in Section 1.1 of the
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Credit Agreement is hereby amended to read as follows:
"Loan Documents" means this Agreement, the Notes, the Subsidiary
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Guaranty, all L/C Related Documents, the Collateral Documents, any Interest
Rate Protection Agreement, all fee letters, and any other document or
agreement executed or delivered from time to time by the Borrower, any
Subsidiary or any other Person in connection herewith or as security for
the Obligations.
(c) Section 1.1 of the Credit Agreement is hereby amended by adding the
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following defined terms thereto in proper alphabetical order:
"Acquisition Consideration" means the consideration given by the
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Borrower or any of its Subsidiaries for an Acquisition, including but not
limited to the sum of (without duplication) (a) the fair market value of
any cash, property or services given (other than Capital Stock issued in
respect of the Acquisition), plus (b) the amount of any indebtedness for
borrowed money and Capitalized Lease Obligations assumed, incurred or
guaranteed in connection with such Acquisition by the Borrower or any of
its Subsidiaries that is a Subsidiary immediately prior to such
Acquisition.
"Capital Expenditures" means the aggregate amount of all purchases or
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acquisitions of items considered to be capital items under GAAP, and in any
event shall include the aggregate amount of items leased or acquired in
respect to Capitalized Lease Obligations at the cost of the item, and the
acquisition of realty, tools, equipment, and fixed assets, and any deferred
costs associated with any of the foregoing. For the purpose of this
definition, there shall be excluded from the definition of "Capital
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Expenditures" any capital expenditures to the extent funded by insurance
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proceeds.
"Capital Stock" means, as to any Person, the equity interests in such
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Person, including, without limitation, the shares of each class of capital
stock in any Person that is a corporation, each class of partnership
interest in any Person that is a partnership, and each class of membership
interest in any Person that is a limited liability company.
"Collateral" means any collateral in which a Lien is granted by any
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Person to the Collateral Agent to secure the Obligations.
"Collateral Agent" means Bank of America, N.A., in its capacity as
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collateral agent for the ratable benefit of the Lender Secured Parties and
the Senior Noteholders.
"Collateral Document" means the Pledge Agreements and any other
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document under which a security interest in Collateral is granted and any
document related thereto.
37-2
"Collateral Intercreditor Agreement" means an intercreditor agreement
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to be executed by the Borrower, certain Subsidiaries of the Borrower, the
Collateral Agent, the Lenders and the Senior Noteholders with respect to
the Collateral pledged pursuant to the Collateral Documents.
"Collateral Release Date" means the last day of the Qualifying Period.
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"First Amendment" means that certain First Amendment to Third Amended
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and Restated Credit Agreement among the Borrower, the Lenders, the Co-
Agents and the Administrative Lender, dated as of May 25, 2001.
"Lender Secured Party" means any (a) Bank Affiliate which has entered
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into an Interest Rate Protection Agreement with the Borrower or any
Affiliate of the Borrower and (b) Lender.
"Material Subsidiary" means each direct or indirect Subsidiary of the
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Borrower (a) the gross revenues of which for the then most recently
completed four fiscal quarters constituted (or, with respect to any such
Subsidiary acquired during such fiscal quarters, would have constituted had
the gross revenues of such Subsidiary been included for such period) 5% or
more of the consolidated gross revenues of the Borrower and its
Subsidiaries for such period, (b) the assets of which as of the end of any
fiscal quarter constituted 5% or more of the consolidated assets of the
Borrower and its Subsidiaries as of the end of such fiscal quarter, or (c)
the EBITDA (if calculated with respect to such Subsidiary only) for the
then most recently completed four fiscal quarters constituted (or, with
respect to any such Subsidiary acquired during such fiscal quarters, would
have constituted had the EBITDA of such Subsidiary been included for such
period) 5% or more of the consolidated EBITDA of the Borrower and its
Subsidiaries for such period; provided, further, Material Subsidiary shall
also include any Subsidiary which has a Subsidiary which is a Material
Subsidiary.
"Pledge Agreement" means any Pledge Agreement to be executed by the
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Borrower or any of its Subsidiaries in favor of the Collateral Agent
granting a Lien in the Capital Stock of each Material Subsidiary for the
ratable benefit of the Lender Secured Parties and the Senior Noteholders,
as amended, supplemented, modified, renewed or restated from time to time.
"Qualifying Period" means the period from and including the date of
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the First Amendment through and including the date of receipt by the
Administrative Lender of a Compliance Certificate which is the second
consecutive Compliance Certificate evidencing a Leverage Ratio equal to or
less than 3.50 to 1.
"Second Amended and Restated Intercreditor Agreement" means that
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certain Second Amended and Restated Intercreditor Agreement, dated as of
March 10, 1999, among the Borrower, certain Subsidiaries of the Borrower,
the Lenders and the Senior Noteholders.
"Senior Noteholders" means the holders from time to time of the Senior
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Notes, the Prudential Assumed Notes and the Prudential Borrower Notes.
37-3
(d) Section 2.10(d) of the Credit Agreement is hereby amended to read as
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follows:
(d) If some but less than all amounts due from the Borrower are
received by the Administrative Lender, the Administrative Lender shall
apply such amounts in the following order of priority: (i) to the payment
of the Administrative Lender's expenses incurred on behalf of the Lenders
then due and payable, if any; (ii) to the payment of all other fees then
due and payable; (iii) to the payment of interest then due and payable on
the Advances and the Reimbursement Obligations; (iv) to the payment of all
other amounts not otherwise referred to in this clause (d) then due and
payable under the Loan Documents; and (v) to the payment of principal then
due and payable on the Advances and the Reimbursement Obligations, and,
subject to the Second Amended and Restated Intercreditor Agreement, in the
case of any payments under any Subsidiary Guaranty, to pay any other
obligations to any Guarantied Party (as defined in the Subsidiary Guaranty)
not covered in clauses (i) through (iv) above, ratably among the Guarantied
Parties in accordance with the aggregate principal amount of Advances and
Reimbursement Obligations and, in the case of payments under any Subsidiary
Guaranty, the obligations guaranteed thereby, owed to each Guarantied
Party, and, subject to the Collateral Intercreditor Agreement, in the case
of payment under any Pledge Agreement to pay any other obligations owed to
any Lender Secured Party not covered in clauses (i) through (iv) above,
ratably in accordance with the obligations secured thereby, owed to each
Lender Secured Party.
(e) Section 2.10(e) of the Credit Agreement is hereby amended to read as
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follows:
(e) Except as otherwise provided in the last sentence of this Section
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2.10(e), each payment by the Borrower in respect of obligations relating to
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the Revolving Credit Advances and the Letters of Credit (whether for
principal, interest, fees or otherwise) shall, except as otherwise
expressly provided herein, be made to the Administrative Lender for the
account of the Lenders pro rata in accordance with their respective
Specified Percentages. Except as otherwise provided in the last sentence of
this Section 2.10(e), each payment by the Borrower in respect of
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obligations relating to the Bid Rate Advances shall be made to the
Administrative Lender for the account of the Lenders making such Bid Rate
Advances. Notwithstanding anything in this Section 2.10(e) or any other
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provision of this Agreement or any other Loan Document to the contrary, but
subject to the Second Amended and Restated Intercreditor Agreement and the
Collateral Intercreditor Agreement, any payment by the Borrower in respect
of any Advances after acceleration of the Advances pursuant to Section 8.2
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or any monies received by the Administrative Lender as a result of the
exercise of remedies under any Loan Documents after acceleration of
Advances pursuant to Section 8.2 shall be distributed pro rata to each
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Lender based on the percentage that the outstanding Advances and
Reimbursement Obligations owed to such Lender bears to the aggregate
Advances and Reimbursement Obligations owed to all Lenders.
(f) Section 2.4(a) of the Credit Agreement is hereby amended to read as
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follows:
(a) Commitment Fee. Subject to Section 11.9 hereof, the Borrower
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agrees to pay to the Administrative Lender, for the ratable account of the
Lenders, a nonrefundable commitment fee (which commitment fee shall be
payable in arrears on each Quarterly Date and on the Maturity Date), based
on the daily average unused portion of the Commitment (subject to Section
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11.9 hereof, computed on the basis of a year of 360-day year for the actual
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number of days elapsed, and for purposes of calculation of the commitment
fee, Letters of Credit outstanding from time to time will reduce the unused
portion of the Commitment and Bid Rate Advances outstanding from time to
time shall not reduce the unused portion of the Commitment) commencing on
the Agreement Date, at the following per annum percentages, applicable in
the following situations:
37-4
Applicability Percentage
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(i) Category 1 - The Leverage Ratio is greater than 3.50 to 1 0.500%
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(ii) Category 2 - The Leverage Ratio is less than or equal to 3.50 to 1 but is 0.375%
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greater than 3.00 to 1
(iii) Category 3 - The Leverage Ratio is less than or equal to 3.00 to 1 but is 0.300%
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greater than 2.00 to 1
(iv) Category 4 - The Leverage Ratio is less than or equal to 2.00 to 1 0.250%
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Such fee shall be subject to reduction or increase, as applicable, and as
set forth in the table above, on a quarterly basis according to the
performance of the Borrower as tested by the Leverage Ratio; provided, that
each adjustment in such fee shall be effective as of the first day of the
month immediately following the month in which the Administrative Lender
receives the financial statements required pursuant to Section 6.1 or 6.2
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hereof, as appropriate. If financial statements of the Borrower (and
corresponding Compliance Certificate setting forth the Leverage Ratio) are
not received by the Administrative Lender by the date required pursuant to
Section 6.1 or 6.2 hereof, as appropriate, the commitment fee shall be
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determined pursuant to Category 1 above until such time as such financial
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statements and Compliance Certificate are received. For the period from May
25, 2001 to the date that an adjustment in such fee would otherwise be made
pursuant to the terms hereof, the commitment fee shall be determined
pursuant to Category 1 above.
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(g) Section 2.16(f) of the Credit Agreement is hereby amended to read as
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follows:
(f) Compensation for Letters of Credit.
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(i) Credit Fees. Subject to Section 11.9 hereof, the Borrower
shall pay to the Administrative Lender for the account of each Lender
a credit fee (which shall be payable quarterly in arrears on each
Quarterly Date and on the Maturity Date) on the average daily amount
available for drawing under all outstanding Letters of Credit
(computed, subject to Section 11.9 hereof, on the basis of a 360-day
year for the actual number of days elapsed) at the following per annum
percentages, applicable in the following situations:
Applicability Percentage
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(A) Category 1 - The Leverage Ratio is greater than 4.00 to 1 2.750%
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(B) Category 2 - The Leverage Ratio is less than or equal to 4.00 to 1 but 2.500%
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is greater than 3.50 to 1
(C) Category 3 - The Leverage Ratio is less than or equal to 3.50 to 1 but 2.000%
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is greater than 3.00 to 1
(D) Category 4 - The Leverage Ratio is less than or equal to 3.00 to 1 but 1.750%
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is greater than 2.00 to 1
(E) Category 5 - The Leverage Ratio is less than or equal to 2.00 to 1 1.250%
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37-5
(ii) Adjustment of Credit Fee. The credit fee payable in respect
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of the Letters of Credit shall be subject to reduction or increase, as
applicable and as set forth in the table in (i) above, on a quarterly
basis according to the performance of the Borrower as tested by the
Leverage Ratio. Any such increase or reduction in such fee shall be
effective as of the first day of the month immediately following the
month in which the Administrative Lender receives the financial
statements required pursuant to Section 6.1 or 6.2 hereof, as
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appropriate. If financial statements of the Borrower (and
corresponding Compliance Certificate setting forth the Leverage Ratio)
are not received by the Administrative Lender by the date required
pursuant to Section 6.1 or 6.2 hereof, as appropriate, the fee payable
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in respect of the Letters of Credit shall be determined pursuant to
Category 1 above until such time as such financial statements are
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received. The credit fee payable in respect of the Letters of Credit
shall be determined pursuant to Category 1 from and including May 25,
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2001 until such time as a calculation of the Leverage Ratio which
would result in an adjustment of such fee is received.
(h) Article 5 of the Credit Agreement is hereby amended by adding a new
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Section 5.12 thereto to read as follows:
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Section 5.12 Material Subsidiary. If any Subsidiary becomes a Material
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Subsidiary after August 29, 2001 but during the Qualifying Period, (a) the
Capital Stock of such Subsidiary shall be pledged pursuant to a Pledge
Agreement and (b) the Lenders shall receive such board resolutions and
opinions of counsel as the Administrative Lender shall reasonably request
in connection with the actions described in clause (a) above.
(i) Section 7.1(i) of the Credit Agreement is hereby amended to read as
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follows:
(i) (i) During the Qualifying Period, (A) unsecured Indebtedness of
the Borrower set forth on Exhibit J hereto plus (B) other unsecured
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Indebtedness of the Borrower not otherwise permitted under this Section 7.1
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not to exceed $5,000,000 in aggregate principal amount, provided that
immediately prior thereto and after the occurrence thereof there shall be
no Default or Event of Default, the covenants, terms (excluding interest
rate and fees) and provisions with respect to such Indebtedness are no more
restrictive than the terms of this Agreement and the other Loan Documents,
and (ii) not during the Qualifying Period, unsecured Indebtedness of the
Borrower not otherwise permitted under this Section 7.1 in an aggregate
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principal amount outstanding not to exceed 25% of Net Worth at any time,
provided that (A) immediately prior thereto and after the occurrence
thereof there shall be no Default or Event of Default, the covenants, terms
(excluding interest rate and fees) and provisions with respect to such
Indebtedness are no more restrictive than the terms of this Agreement and
the other Loan Documents and (B) no such Indebtedness shall have an
original maturity date earlier than 180 days after the Maturity Date;
(j) Section 7.5 of the Credit Agreement is hereby amended to read as
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follows:
Section 7.5 Guaranties. The Borrower shall not, and shall not permit
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any Subsidiary to, at any time make or issue any Guaranty, or assume, be
obligated with respect to, or permit to be outstanding any Guaranty, of any
obligation of any other Person except (a) the Subsidiary Guaranty, (b) the
endorsement in the ordinary course of business of negotiable instruments
for deposit or collection, (c) Guaranties in respect of the Prudential
Borrower Notes, the Prudential Assumed Notes and the Senior Notes, (d) the
Preferred Securities Guarantee, (e) Guaranties in respect of Indebtedness
otherwise permitted pursuant to Section 7.1 hereof, (f) Guaranties in
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respect of operating leases of Subsidiaries, and (g) other Guaranties, not
to exceed, together with the Indebtedness permitted pursuant to Section
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7.1(d) hereof, in aggregate amount 5% of Net Worth at any time of
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determination.
(k) Clause (a) of Section 7.6 of the Credit Agreement is hereby amended to
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read as follows:
(a) (i) During the Qualifying Period, make any Treasury Stock
Purchases in an aggregate amount in excess of $10,000,000 and (ii) not
during the Qualifying Period, make any Treasury Stock Purchases in an
aggregate amount for all Treasury Stock Purchases made after the Agreement
Date in excess of 10% of Net Worth at any time outstanding or
37-6
(l) Section 7.9 of the Credit Agreement is hereby amended to read as
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follows:
Section 7.9 Leverage Ratio. The Borrower shall not permit the Leverage
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Ratio to exceed (a) 4.40 to 1 at May 31, 2001, (b) 4.60 to 1 at August 31,
2001, (c) 4.40 to 1 at November 30, 2001, (d) 4.00 to 1 at February 28,
2002 or (e) 3.50 to 1 at the end of any fiscal quarter thereafter.
(m) Section 7.15 of the Credit Agreement is hereby amended to read as
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follows:
Section 7.15 Acquisitions. The Borrower shall not, and shall not
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permit any Subsidiary to, make any Acquisitions unless (a) immediately
prior to and after giving effect to the proposed Acquisition there shall
not exist a Default or Event of Default, (b) such Acquisition shall not be
opposed by the board of directors of the Person being acquired, (c) if the
Acquisition is during the Qualifying Period, the aggregate Acquisition
Consideration for all Acquisitions during the Qualifying Period, including
the proposed Acquisition, will not exceed $25,000,000, (d) if the
Acquisition is not during the Qualifying Period, and the Acquisition
Consideration for any Acquisition (including any Indebtedness or Operating
Leases assumed in connection therewith) exceeds $75,000,000, (i) the
Lenders shall have received written notice at least 15 Business Days prior
to the date of such Acquisition, and (ii) the Administrative Lender shall
have received at least 10 Business Days prior to the date of such
Acquisition a Compliance Certificate setting forth the covenant
calculations both immediately prior to and after giving effect to the
proposed Acquisition, (e) the assets, property or business acquired shall
be in the business described in Section 4.1(d) hereof, and (f) if such
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Acquisition results in a Subsidiary, (i) such Subsidiary shall have
executed and delivered a Subsidiary Guaranty of the Obligations, (ii) if
such Acquisition occurs during the Qualifying Period and the Subsidiary is
a Material Subsidiary, the Capital Stock of such Subsidiary shall be
pledged pursuant to a Pledge Agreement and (iii) the Lenders shall have
received such board resolutions, officer's certificates and opinions of
counsel as the Administrative Lender shall reasonably request in connection
with the actions described in clauses (f)(i) and (f)(ii) above.
(n) Article 7 of the Credit Agreement is hereby amended by adding a new
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Section 7.16 thereto to read as follows:
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Section 7.16 Capital Expenditures. The Borrower shall not, and shall
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not permit any of its Subsidiaries to, directly or indirectly make or
commit to make Capital Expenditures during fiscal year 2002 in an aggregate
amount in excess of $75,000,000.
(o) Section 8.1 of the Credit Agreement is hereby amended by (i) deleting
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"or" at the end of clause (n) thereof, (ii) deleting "." at the end of clause
(o) thereof and inserting "; or" in lieu thereof and (iii) adding new clauses
(p) and (q) thereto to read as follows:
(p) Collateral Document. During the Qualifying Period, any Collateral
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Document shall for any reason (other than as expressly provided or
permitted pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien in any Collateral in favor of the Collateral
Agent for the ratable benefit of the Lender Secured Parties and the Senior
Noteholders.
(q) Pledge Agreement and Collateral Intercreditor Agreement. (i) The
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Borrower and its Subsidiaries shall fail to execute and deliver Pledge
Agreements granting a Lien in all Capital Stock of the Material
Subsidiaries by August 29, 2001, together with an opinion of counsel
satisfactory to the Administrative Lender, stock certificates with respect
to such Capital Stock, UCC-1 financing statements and other related
documents requested by the Administrative Lender or (ii) the Collateral
Intercreditor Agreement shall fail to have been executed and delivered by
all parties thereto by August 29, 2001.
(p) Exhibit D is here by amended to be in the form of Exhibit D to
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this First Amendment.
(q) Exhibit J is hereby added to the Credit Agreement in the form of
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Exhibit J hereto.
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37-7
2. COLLATERAL. The Borrower acknowledges its agreement to grant a first
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priority Lien, and to cause each of its Subsidiaries to grant a first priority
Lien, in the Capital Stock of the Material Subsidiaries for the ratable benefit
of the Lender Secured Parties and the Senior Noteholders pursuant to the Pledge
Agreements. The parties hereto acknowledge and agree that the Pledge Agreements
will contain an automatic release of the Lien (with respect to both the Lender
Secured Parties and the Senior Noteholders) in the Collateral granted thereunder
on the Collateral Release Date.
3. 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
and the other Loan Documents 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;
(c) the Borrower has full power and authority to execute and deliver this
First Amendment and the Collateral Documents and this First Amendment and the
Credit Agreement, as amended hereby, and the Collateral Documents when executed
will, constitute the legal, valid and binding obligations of the Borrower or its
Subsidiaries, as the case may be, 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 First
Amendment, the Credit Agreement, as amended by this First Amendment, the
Collateral Documents, 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 not already obtained is
required for the execution, delivery or performance by the Borrower of this
First Amendment, the acknowledgment by any Guarantor of this First Amendment or
the Borrower or any of its Subsidiaries of the Collateral Documents.
4. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective
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as of May 25, 2001, subject to the following:
(a) the Administrative Lender shall have received counterparts of this
First Amendment executed by the Determining Lenders;
(b) the Administrative Lender shall have received counterparts of this
First Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) the Administrative Lender shall have received certified
resolutions of the Board of Directors of the Borrower and each Subsidiary which
is to execute any Collateral Documents; and
(d) 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.
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5. AMENDMENT FEE. The Borrower covenants and agrees to pay an amendment
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fee to the Lenders which execute and deliver this First Amendment to the
Administrative Lender (or its counsel) not later than 5:00 p.m., Dallas time,
May 25, 2001, in an amount equal to the product of (a) 0.25% and (b) an amount
equal to such Lender's portion of the Commitment. Such amendment fee shall be
paid in immediately available funds and shall be due and payable to each Lender
eligible for payment pursuant to the preceding sentence no later than one
Business Day after the date on which this First Amendment becomes effective. The
Borrower agrees that the failure to pay the amendment fee provided in this
Section 4 shall be an Event of Default under Section 8.1(b)(i) of the Credit
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Agreement.
6. 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 First 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 First 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.
7. REFERENCE TO THE CREDIT AGREEMENT.
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(a) Upon the effectiveness of this First 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.
8. 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 First 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).
9. EXECTUION IN COUNTERPARTS. This First Amendment may be executed in any
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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.
10. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be 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.
11. HEADINGS. Section headings in this First Amendment are included herein
--------
for convenience of reference only and shall not constitute a part of this First
Amendment for any other purpose.
12. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
----------------
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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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date above written.
TEXAS INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
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