Unassociated Document


    CONTRACT
AMENDMENT NO. 1

    Between

    TXI
OPERATIONS LP

    AND

    AMEC-ZACHRY
CONTRACTORS

    FOR
THE HUNTER CEMENT PLANT, NEW BRAUNFELS, TEXAS

    


    This
Contract Amendment No. 1 (the “Amendment”) is made effective the 17th day of
August, 2009 (“Effective Date”) as an amendment to that certain Contract and All
Exhibits by and between AMEC-ZACHRY CONTRACTORS, a Joint Venture between Zachry
Construction Corporation, now known as Zachry Industrial, Inc. and AMEC E&C
Services, Inc. with its principal office at 527 Logwood, San Antonio, Texas
78221, (hereinafter called "Contractor"), and TXI OPERATIONS LP, a Delaware
limited partnership with its principal office at 1341 W. Mockingbird Lane,
Dallas, Texas 75247, (hereinafter called "Owner)",as such Contract has been
amended to date by fully executed Change Orders numbered 00001 through 00006,
inclusive (the “Contract”).

    


    WHEREAS, in December, 2008,
Owner determined, in its sole discretion and through no fault of Contractor,
that the Work, as partially executed by Contractor, should be brought to an
early completion by reducing the original scope of Work in order to provide
short term cash savings to Owner; and,

    


    WHEREAS, Owner and Contractor
executed Change Order 00004, dated January 19, 2009, so as to amend the
description of the Work to be performed under the Contract, primarily by
elimination of certain tasks from the scope of the Work, and the addition of
certain tasks related to the orderly conclusion of Work previously performed;
and,

    


    WHEREAS, per the terms of
Change Order 00004, the Parties agreed that Contractor will complete the Work,
as such term was amended by such Change Order 00004; and,

    


    WHEREAS, neither the
Contractor nor the Owner is in default under the Contract; and,

    


    WHEREAS, the Parties have
resolved all outstanding change order requests as of the Effective Date hereof
to their mutual satisfaction and there are no payment obligations, pending
change orders or other unresolved issues between the Parties, except for the
final payment of the balance of the Contract Price in the amount of $300,000, as
further set out in Article 2 below; and,

    


    WHEREAS, the Parties have
determined that due to Owner’s decision to leave certain elements of the Project
unfinished and not operational, it is in the Parties’ best interest to clarify
that the Work has been concluded under the Contract, except for any continuing
obligations of the Parties that survive per the terms of the Contract unless
specifically released by this Amendment.

     

    NOW, THEREFORE, for and in
consideration of the mutual obligations and promises hereinafter set forth,
Contractor and Owner agree to amend the Contract as follows:

    


    Article
1.  Conclusion of the Work under the Contract

    


    A.           The
Owner and Contractor agree that the Work specified under the Contract shall be
deemed to be complete as of the close of business on May 15, 2009 (the
“Completion Date”).  The obligations set forth in Article 1. B. shall
be enforceable in accordance with the terms of the Agreement as originally
written, including dispute resolution provisions set forth in the
Contract.

    


    
      
        
        

      

      
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    B.           In
addition to any other obligation which by its terms in the Agreement is intended
to survive Mechanical Completion, the following obligations of the Parties shall
survive the Completion Date, and shall continue in effect until such time as
Owner and Contractor have fulfilled such obligations:

     

    


    1)  Contractor
will provide the warranty set forth in Sections 6.27.1. 6.27.2, 6.27.3, 6.27.4
6.27.5, 6.27.6, and 6.28 of the Contract, beginning on the Completion Date
specified above, for all Work as such term has been modified and amended by
Change Order #0004, except for the gearboxes located in Area 5F1 for which no
warranty, express or implied, is provided by Contractor.  For purposes
of commencement of the Warranty Period, the Work will be deemed to be complete
on the Completion Date, and the Warranty Period will run for twelve (12) months
from the Completion Date specified in this Amendment.

    


    2)  Not
by way of limitation, Sections 6.5, 6.6.1, 6.21, 6.27.1-6.27.6, 6.28, 6.29,
6.31, 6.39, 7.1, 7.4, and Article 8 of the Contract shall survive conclusion of
the Work under the Contract or other termination of the
Contract.  Sections 6.27.5 and 6.27.6 shall survive conclusion of the
Work, but shall not be applicable to the extent Contractor is not required to
deliver or install an item as a result of Change Order #0004.

    


    3)  The
parties agree that Contractor has provided to Owner the required drawings,
maintenance manuals, and specifications noted in Change Order #00004 Scope of
Work.

    


    Article 2.  Finish
Mill Gearboxes and Final Payment

    


    As of the
Effective Date hereof, Owner has not executed an Acceptance Certificate as to
one remaining area of the Scope of Work, referred to in Change Order 00004 as
Area 5F1, which is the Finish Mill. The Parties acknowledge and agree that they
have resolved this item as follows:

    


    
      	
               
      

            	
              1)

            	
              Owner
      will Sign the Final Punchlist Item for Area 5F1 and return to
      Contractor.

            


    

    
      	
               
      

            	
              2)

            	
              Owner
      will Sign the 5F1 Area Acceptance Certificate, the last remaining such
      form for the entire scope of work according to Change Order No. 00004, and
      return to Contractor.

            


    

    
      	
               
      

            	
              3)

            	
              Owner
      will issue an invoice to Contractor for $1.2MM to reimburse owner for
      Owner’s purchase and installation of new gear
  boxes.

            


    

    
      	
               
      

            	
              4)

            	
              Owner
      will net their $1.2MM invoice against the $1.5MM balance of the Contract
      Price.

            


    

    
      	
               
      

            	
              5)

            	
              Owner
      will pay Contractor $.3MM balance due to
  Contractor.

            


    

    


    Owner
agrees that the deduction of $1.2MM is in full satisfaction for any costs it has
incurred or may incur in the future in connection with the gear boxes, and by
executing the Area 5F1 Acceptance Certificate, Owner releases Contractor from
any liability for costs that have been incurred or which may be incurred in the
future with regard to said gear boxes.  The parties expressly agree
that Contractor has no warranty obligations to Owner whatsoever for the
replacement gear boxes or their subsequent installation or
performance.

    


    


    Article
3.  Substantial Completion and Mechanical
Completion

    


    A.           Section
1.1(1) of the Contract shall be amended to replace the phrase “Mechanically
Complete new 3850 short tons per day” with the phrase “partially complete new
3850 short tons per day”.

    


    
      
        
        

      

      
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    B.           The
Parties agree that the definition and references to “Substantial Completion” in
the original contract are deleted and replaced in each place that they occur by
the “Acceptance Certificate by Area” as described in Change Order
#0004.

    


    C.           The
Parties further acknowledge that the list of items to be turned over to Owner
under “Mechanical Completion” has been substantially modified and shortened by
Change Order 00004; and the event of Mechanical Completion is deemed to be
completed as of the Completion Date specified in this
Amendment.  Execution by Owner of Acceptance Certificates by Area will
reflect Owner’s certification that Contractor has successfully completed each
area of Work.

    


    Article
4.  Pass-Through Warranties

    


    Contractor
has provided Owner with certain information regarding warranties provided by its
subcontractors or vendors with respect to equipment or materials included within
Contractor’s scope of Work to the extent Contractor was able to procure such
warranties prior to the termination of those subcontracts and purchase orders or
purchase agreements. A list of such subcontractors or vendors and associated
warranties is attached hereto as Exhibit A.  Contractor represents and
warrants to Owner that the warranties provided in the attached list were the
only warranties that were reasonably available (as required by Section 6.28 of
the Agreement).  Contractor will remain obligated to administer such
warranties as specified in Section 6.28 of the Agreement during the Warranty
Period specified in Article 1(B)(3) above, will assign such warranties to Owner
upon conclusion of such Warranty Period, and shall otherwise continue to perform
its obligations as specified in Section 6.28 of the Agreement.

    


    


    


    (Signature
Page Follows)

     

    
      
        
        

      

      
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    Signature
Page for the Contract Amendment No. 1

    Between
TXI Operations LP and AMEC-Zachry Contractors

    For
the Hunter Cement Plant, New Braunfels, Texas

     

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                	 
      	
                                                        TXI
      OPERATIONS LP

                                                      	 	 
      	
                                                        AMEC-ZACHRY
      CONTRACTORS,

                                                      	 
      
	 
      	
                                                        By:  TXI
      Operating Trust, its general partner

                                                      	 	 
      	
                                                        a
      Joint Venture between

                                                      	 
      
	 
      	 
      	 	 
      	 
      	 
      
	 
      	
                                                      	 	
                                                      	

                                                        Zachry Industrial,
      Inc.

                                                      	 
      
	 
      	 
      	 	 
      	 
      	 
      
	
                                                        By:

                                                      	
                                                        /s/ George Eure

                                                      	 	

                                                        By:

                                                      	/s/ Steven K. Brauer	 
      
	 
      	
                                                          (Signature)

                                                      	 	 
      	
                                                        (Signature)

                                                      	 
      
	 	 	 	 	 	 
	 
      	
                                                        George Eure

                                                      	 	 
      	
                                                        Steven K. Brauer

                                                      	 
      
	 
      	
                                                        (Printed
      Name)

                                                      	 	 
      	
                                                        (Printed
      Name)

                                                      	 
      
	 	 	 	 	 	 
	
                                                        Title:

                                                      	
                                                        VP Engineering

                                                      	 	
                                                        Title:

                                                      	
                                                        Construction Group
President

                                                      	 
      
	
                                                        Date:

                                                      	
                                                        8/14/09

                                                      	 	
                                                        Date:

                                                      	
                                                        8/14/09

                                                      	 
      
	 	 	 	 	 	 
	 
      	 
      	 	
                                                        and

                                                      	 
      	 
      
	 	 	 	 	 	 
	 
      	
                                                      	 	 
      	

                                                        AMEC
      E&C Services, Inc.

                                                      	 
      
	 	 	 	 	 	 
	
                                                      	
                                                      	 	

                                                        By:

                                                      	

                                                        /s/ Timothy P.
    Gelbar

                                                      	 
      
	 
      	
                                                      	 	 
      	

                                                        (Signature)

                                                      	 
      
	 	 	 	 	 	 
	 
      	
                                                      	 	 
      	

                                                        Timothy P. Gelbar

                                                      	 
      
	 
      	
                                                      	 	 
      	

                                                        (Printed
      Name)

                                                      	 
      
	 	 	 	 	 	 
	 
      	
                                                      	 	Title:	

                                                        President, Power & Process
      Americas

                                                      	 
      
	 	 	 	 	 	 
	
                                                      	
                                                      	 	

                                                        Date:

                                                      	

                                                        8/17/09

                                                      	 
      


                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
         

      

      
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