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EXHIBIT 10(s)
AMENDMENT NO. 5 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT (this "Fifth
Amendment") dated this 27th day of November, 1996 by and between UNITED STATES
LIME & MINERALS, INC. (formerly known as Scottish Heritable, Inc.), a Texas
corporation ("USL"), XXXXXX LIME COMPANY, a Pennsylvania corporation ("CLC"),
TEXAS LIME COMPANY, a Texas corporation ("TLC"), ARKANSAS LIME COMPANY, an
Arkansas corporation ("ALC", and together with USL, CLC, and TLC, collectively
referred to as the "Borrowers") and CORESTATES BANK, N.A., a national banking
association ("Bank").
BACKGROUND
A. Borrowers and Bank entered into a Loan and Security Agreement
dated October 20, 1993, since amended by Amendment No.1 to Loan and Security
Agreement dated as of December 23, 1994, Amendment No. 2 to Loan and Security
Agreement dated April 28, 1995, Amendment No. 3 to Loan and Security Agreement
dated September 29, 1995 and that certain Letter Agreement dated October 26,
1995 (collectively, the "Loan Agreement"), pursuant to which Bank made
available to Borrowers certain credit facilities specifically described in the
Loan Agreement. All initially-capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement unless the
context clearly requires to the contrary.
B. Borrowers have requested that Bank further amend the terms of
the Loan Agreement to (i) add Adjusted LIBOR as an interest rate option (ii)
extend the Termination Date to June 30, 1998 and extend the maturity date for
the Term Loan to October l, 2000, (iii) add one noncommitted secured line of
credit in the amount of $10,000,000 to be used to finance equipment purchases
and improvements to current plant and equipment and one secured discretionary
line of credit in the amount of $10,000,000 to be used for acquisitions, (iv)
increase the annual limit on Capital Expenditures, and (v) amend certain
financial covenants set forth in the Loan Agreement. Bank has agreed to such
changes subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Ratification of Loan Documents. This Fifth Amendment is a
supplement to and a modification of the Loan Agreement pursuant to Section 9.2
thereof. To the extent not
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modified hereby, each and every term, condition, covenant, representation,
warranty, and each and all of the other provisions set forth in the Loan
Agreement, are hereby ratified and confirmed in full.
2. Additional Definitions. Each of the terms listed below shall
have the meaning herein ascribed to it for the purposes hereof, the Loan
Agreement and for each of the Loan Documents. All capitalized terms not defined
herein shall have the meaning ascribed to them respectively in the Loan
Agreement.
"Acquisition Line of Credit" means the aggregate secured
discretionary line of credit facility under which Bank makes Acquisition Loans
to one or more of the Borrowers, as more fully described in and subject to the
terms of Section 2.6 hereof.
"Acquisition Loan(s)" means collectively, those loans extended
by Bank in its sole discretion to Borrowers pursuant to the Acquisition Line of
Credit, as more fully described in and subject to the terms of Section 2.6
hereof.
"Acquisition Note" means each note of Borrowers payable to the
order of the Bank to evidence Borrowers' joint and several repayment
obligations under this Agreement with respect to the Acquisition Line of
Credit.
"Adjusted LIBOR" means the LIBOR finally adjusted and
determined with respect to the following formula:
[LIBOR] *
Adj. LR = -----------
[1.00 - RP]
Adj. LR = Adjusted LIBOR
LIBOR = London Interbank Offered Rate
RP = Reserve Percentage pertaining to
eurocurrency liabilities
----------
* the amount in brackets being rounded upwards if necessary, to the next
higher 1/16 of 1%
"Adjusted LIBOR Loan(s)" means applicable portions of the
Revolving Credit, the Term Loan and the Capital Expenditure Line of Credit
bearing interest at a rate determined with reference to the Adjusted LIBOR.
"Base Rate Loan(s)" means applicable portions of the Revolving
Credit, the Term Loan, the Capital Expenditure Line
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of Credit and the Acquisition Line of Credit bearing interest at the Base Rate.
"Capital Expenditure Line of Credit" means the aggregate
secured noncommitted line of credit facility under which Bank makes Capital
Expenditure Loans to one or more of the Borrowers, as more fully described in
and subject to the terms of Section 2.5 hereof.
"Capital Expenditure Loan(s)" means those loans extended by
Bank in its sole discretion to Borrowers pursuant to the Capital Expenditure
Line of Credit as more fully described in and subject to the terms of Section
2.5 hereof.
"Capital Expenditure Note(s)" means each note of Borrowers
payable to the order of the Bank to evidence Borrowers' joint and several
repayment obligations under this Agreement with respect to the Capital
Expenditure Line of Credit.
"Conversion Date" means, with respect to a Loan, the Business
Day on which a portion of the Loan is converted to or continued as an Adjusted
LIBOR Loan.
"Dollars" and the symbol "$" mean the lawful money of the
United States of America.
"Interest Period" means that period of time applicable to an
Adjusted LIBOR Loan as determined pursuant to Section 2.4.8.2 hereof.
"Interest Rate Determination Date" means each date for
determining the Adjusted LIBOR with respect to an Interest Period. The Interest
Rate Determination Date shall be the second London Business Day prior to the
first day of the related Interest Period for each Adjusted LIBOR Loan.
"Interest Rate Option" means the Base Rate or the Adjusted
LIBOR selected by Borrower for all or any part of the Revolving Credit, the
Term Loan or the Capital Expenditure Line of Credit.
"LIBOR" means the rate per annum at which deposits of Dollars
are offered to Bank by prime banks in the London Eurodollar Interbank Market at
or about 11:00 A.M. London time, two London Business Days prior to the first
day of the applicable Interest Period for a period equal to the period of such
Interest Period in an amount substantially equal to the principal amount
requested to be converted to or continued as an Adjusted LIBOR Loan.
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"London Business Day" means any Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London and Philadelphia.
"Notice of LIBOR Election" means a notice substantially in the
form of Schedule 2.4.8.1 attached hereto and made a part hereof.
"Reserve Percentage" means for any day that maximum percentage
(expressed as a decimal), whether or not incurred, which is in effect on such
day, as prescribed by the Board of Governors of the Federal Reserve System, for
determining the reserve requirement for a member bank of the Federal Reserve
System in Philadelphia with respect to "Eurocurrency liabilities" (as such term
is defined in Regulation D) (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Adjusted
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of Bank to United
States residents).
"Rules" means any law, regulation, regulatory guideline or
directive or rule of practice whether or not having the force of law by which
Bank is bound or to which it adheres.
3. Definition Amendments.
3.1 The following definitions are hereby amended and
restated in their entirety:
"Loans" means collectively, the Cash Advances, ACH
Advances, the Term Loan, the Capital Expenditure Loans and the Acquisition
Loans, and a "Loan" means any Cash Advance, ACH Advance, the Term Loan, Capital
Expenditure Loan or Acquisition Loan.
"Loan Documents" means this Agreement, the Note, the
Term Note, any Capital Expenditure Note and any Acquisition Note, the
individual Mortgages, the ACH Documents, the Pledge Agreement, all financing
statements and fixture filings filed or recorded in connection with this
Agreement, and all certificates of Borrowers, or any Borrower, delivered
pursuant to the requirements of this Agreement.
"Notes" means collectively, the Note, the Term Note,
any Capital Expenditure Note and any Acquisition Note, any substitution
therefor and any extension, supplement, amendment or addendum thereto.
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"Termination Date" means June 30, 1998 or such later
date as may be agreed to in writing by Bank.
3.2 The references to "80%" and "50%" in the definition
of "Borrowing Base" are hereby deleted and replaced with "90%" and "80%",
respectively.
4. Base Rate Revision.
4.1 The first clause of the first sentence of Section
2.1.1 is hereby amended and restated in its entirety as follows:
Borrowers shall pay interest on the unpaid principal
balance of all Cash Advances at a rate per annum
equal to the Base Rate, with the first payment
4.2 The first sentence of Section 2.2.2 is hereby amended
and restated in its entirety as follows:
The Term Loan shall bear interest on the unpaid
principal balance thereof at a rate per annum equal to the Base Rate.
5. Conversion to Adjusted LIBOR; Capital Expenditure Line of
Credit; Acquisition Line of Credit. The Loan Agreement is hereby amended by
adding thereto the following sections:
2.4.8 Adjusted LIBOR Loans; Interest Rate Option.
The Cash Advances under Revolving Credit shall henceforth bear interest on the
unpaid principal balance thereof from the Funding Date of each Cash Advance or
the Funding Date or Conversion Date of each Adjusted LIBOR Loan to maturity
(whether by acceleration or otherwise): (i) with respect to Base Rate Loans as
set forth in the Loan Agreement, or (ii) with respect to Adjusted LIBOR Loans
at the Adjusted LIBOR for the applicable Interest Period on the relevant
Interest Rate Determination Date plus two and one-fourth percent (2.25%) per
annum, calculated on the basis of a 360-day year and charged for the actual
number of days elapsed. The Term Loan and the Capital Expenditure Line of
Credit shall henceforth bear interest on the unpaid principal balance thereof
from the Funding Date of the Term Loan or the Capital Expenditure Loan or the
Funding Date or Conversion Date of each such Adjusted LIBOR Loan to maturity
(whether by acceleration or otherwise): (i) with respect to Base Rate Loans as
set forth in the Loan Agreement, or (ii) with respect to Adjusted LIBOR Loans
at the Adjusted LIBOR on the relevant Interest Rate Determination Date plus two
and one-half percent (2.50%) per annum, calculated on the basis of a 360-day
year and charged for the actual number of days elapsed. The basis for
determining the Interest Rate Option with
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respect to portions of the Revolving Credit, the Term Loan and the Capital
Expenditure Line of Credit shall be selected by Borrower at the time a Notice of
Borrowing or a Notice of LIBOR Election is submitted to Bank.
2.4.8.1 Notice of LIBOR Election. Whenever
Borrower desires to change or continue the Interest Rate Option on a portion of
the Revolving Credit, the Term Loan or the Capital Expenditure Line of Credit
to the Adjusted LIBOR, Borrower shall deliver by overnight delivery or
facsimile telecopy to Bank a properly completed and executed Notice of LIBOR
Election no later than 11:00 A.M. at least three London Business Days in
advance of the proposed Conversion Date or expiration of the current Interest
Period. The Notice of LIBOR Election shall specify: (i) the proposed Conversion
Date (which shall be a Business Day); (ii) the amount of the Revolving Credit,
the Term Loan or the Capital Expenditure Line of Credit affected; and (iii) the
initial or continuation Interest Period(s) therefor; provided that the minimum
amount of any conversion to or continuation of Adjusted LIBOR Loans shall be
$500,000 and integral multiples of $100,000 in excess of that amount. If at the
termination of any Interest Period, Borrower fails to submit a Notice of LIBOR
Election to convert or to continue Adjusted LIBOR Loans, then such Loans shall
automatically be and become Base Rate Loans as of the termination of the
relevant Interest Period.
Subject to Section 2.4.8.6 hereof, Adjusted LIBOR
Loans may only be converted into Base Rate Loans on the expiration date of the
Interest Period applicable thereto; provided, that no portion of the
outstanding Revolving Credit, Term Loan or the Capital Expenditure Line of
Credit may be converted into Adjusted LIBOR Loans or continued as Adjusted
LIBOR Loans: (i) when any Event of Default or Unmatured Event of Default has
occurred and is continuing, or (ii) if the Interest Period relating to the
Adjusted LIBOR of such conversion or continuation would extend beyond the
Termination Date or the maturity date for either the Term Loan or the
applicable Capital Expenditure Loan.
A Notice of Borrowing or Notice of Rate Election
shall be irrevocable on and after the related Interest Rate Determination Date,
and Borrower shall be bound to make, continue or convert the applicable portion
of the Revolving Credit, the Term Loan or the Capital Expenditure Line of
Credit, as applicable, in accordance therewith.
2.4.8.2 Interest Periods. In connection with
each Adjusted LIBOR Loan, Borrower shall elect an Interest Period to be
applicable to such Adjusted LIBOR Loan, which Interest Period shall be either a
one, two, three or six month period; provided that:
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(A) the Interest Period for any Adjusted
LIBOR Loan shall commence on the Funding Date or Conversion Date of such
Adjusted LIBOR Loan;
(B) except as provided in subsection
2.4.8.2(C) hereof, if an Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next succeeding
Business Day;
(C) any Interest Period which: (i)
begins on the last Business Day of a calendar month (or a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the relevant calendar
month, or (ii) would expire on a day which is not a Business Day but is a day
of the month after which no further Business Day occurs in that month, such
Interest Period shall expire on the last Business Day of the month;
(D) with respect to any Adjusted LIBOR
Loan, no Interest Period shall extend beyond the Termination Date or the
applicable maturity date for either the Term Loan or the Capital Expenditure
Loans; and
(E) there shall be no more than five (5)
outstanding Adjusted LIBOR Loans at any time;
2.4.8.3 Interest Payments. Interest shall be
payable as follows: (i) with respect to Base Rate Loans, Borrowers shall pay
interest on the unpaid principal balance of all Cash Advances, the Term Loan,
the Capital Expenditure Loans or the Acquisition Loans, as applicable, at the
Base Rate, with the first payment to be made on the first Business Day of the
month following the month containing the Funding Date for the applicable Cash
Advance or Loan, and thereafter on the first Business Day of each consecutive
month and at maturity; and (ii) with respect to Adjusted LIBOR Loans, interest
shall be due and payable to Bank in arrears on and to the last day of the
Interest Period applicable to such Adjusted LIBOR Loan; provided however, that
interest on Adjusted LIBOR Loans with Interest Periods of six months shall be
paid in arrears on and to the last day of the third-month and the last day of
the relevant Interest Period.
2.4.8.4 Adjusted LIBOR.
(A) Bank shall give Borrower prompt
notice of the Adjusted LIBOR determined for an Interest Period, and absent
manifest error, each determination of such rates by Bank shall be conclusive
and binding for all purposes hereof.
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(B) If Borrower requests conversion to
or continuation of the Adjusted LIBOR for an Interest Period and (i) Bank
determines that, by reason of circumstances affecting the interbank Eurodollar
market generally, deposits in U.S. Dollars (in the applicable amounts) are not
then being offered to banks in the London Interbank Eurodollar Market for the
selected Interest Period, or (ii) Bank shall certify that the relevant rates of
interest referred to in the definition of Adjusted LIBOR will not accurately
reflect the cost to Bank of making or maintaining Adjusted LIBOR Loans for the
Interest Periods therefor, then Bank shall give notice thereof to Borrower,
whereupon until Bank notifies Borrower that the circumstances giving rise to
such suspension no longer exist, the obligation of Bank to convert to or
continue portions of the Revolving Credit, the Term Loan or the Capital
Expenditure Line of Credit as Adjusted LIBOR Loans shall be suspended so long
as such circumstances exist.
(C) If, after the date hereof, the
adoption of or any change in Rules, or change in the interpretation or
administration thereof, by a governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by Bank (or Bank's holding company) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for Bank to convert or maintain
loans at the Adjusted LIBOR, Bank will forthwith notify Borrower of the
circumstances and the interest rates on the applicable portions of the
outstanding Adjusted LIBOR Loans shall be deemed to have been converted to Base
Rate Loans on either (i) the last day of the then current Interest Period if
Bank may lawfully continue to maintain loans at the Adjusted LIBOR to such day,
or (ii) immediately if Bank may not lawfully continue to maintain loans at the
Adjusted LIBOR to such day.
(D) If any governmental authority,
central bank or other comparable authority shall at any time impose, modify or
deem applicable any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), any tax (including without
limitation, any United States interest equalization tax or similar tax however
named applicable to the acquisition or holding of debt obligations and any
interest or penalties with respect thereto), duty, charge, fee, deduction, or
withholding, with respect to Adjusted LIBOR Loans, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, Bank, or shall impose on Bank or the London Interbank Eurodollar
Market any other condition affecting loans at the Adjusted LIBOR and the result
of any of the foregoing is to increase the cost to Bank of making or
maintaining the interest rate at the Adjusted LIBOR or to reduce the amount of
any sum received or receivable by Bank under this
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Agreement, and any of the Notes by an amount deemed by Bank to be material,
Bank will promptly notify Borrower of any event of which it has knowledge
occurring after the date hereof. If such event occurs during any Interest
Period or if Borrower requests conversion to the Adjusted LIBOR after
notification of the event, said event will entitle Bank to compensation
pursuant to this subsection (but without duplication of any adjustment made
pursuant to 2.4.8.4(E)). A certificate of Bank claiming compensation under this
subsection and setting forth the additional amount or amounts to be paid to
Bank hereunder shall be conclusive in the absence of manifest error.
(E) The LIBOR shall be adjusted
automatically on and as of the effective day of any change in the relevant
Reserve Percentage.
(F) Promptly upon notice from Bank to
Borrower, Borrower will pay, prior to the date on which penalties attach
thereto, all present and future stamp, documentary and other similar taxes,
levies, or costs and charges whatsoever imposed, assessed, levied or collected
on or in respect of the Adjusted LIBOR Loans solely as a result of the interest
rate being determined by reference to the Adjusted LIBOR and/or the provisions
of this Agreement relating to the Adjusted LIBOR and/or the recording,
registration, notarization or other formalization of any thereof and/or
payments of principal, interest or other amounts made on or in respect of
portions of the Revolving Credit, the Term Loan or the Capital Expenditure Line
of Credit when and as a result of the fact that the interest rate is determined
by reference to the Adjusted LIBOR (all such taxes, levies, costs and charges
being herein collectively called "Eurodollar Rate Tax"). Promptly after the
date on which payment of any such Eurodollar Rate Tax is due pursuant to
applicable law, Borrower will, at the request of Bank, furnish to Bank evidence
that Borrower has met its obligations under this subsection. Borrower will
indemnify Bank against, and reimburse Bank on demand for, any Eurodollar Rate
Tax, as determined by Bank in its good faith discretion. Bank shall provide
Borrower with appropriate receipts for any payments or reimbursements made by
Borrower pursuant to this subsection. A certificate of Bank as to any amount
payable pursuant to this Section shall, absent manifest error, be final,
conclusive and binding on all parties hereto.
(G) Failure on the part of Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any Interest
Period shall not constitute a waiver of Bank's right to demand compensation
with respect to such Interest Period or any other Interest Period. The
protection of this Section shall be available to Bank regardless of any
possible
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contention of the invalidity or inapplicability of the law, Rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed. Any claim for compensation must be made no later than 12 months after
the Termination Date.
2.4.8.5 Funding Losses. If Borrower fails to borrow,
or consummate any conversion to, or to continue, an Adjusted LIBOR Loan after a
Notice of Borrowing or Notice of LIBOR Election has been delivered to Bank and
as provided herein, Borrower shall reimburse Bank on demand for any resulting
loss or expense incurred by Bank, including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
provided that Bank shall have delivered to Borrower a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
2.4.8.6 Prepayment Premium For Adjusted LIBOR Loans.
All prepayments shall be applied first to Base Rate Loans to the extent
outstanding, then to Adjusted LIBOR Loans, unless otherwise specified by
Borrowers and consented to by Bank, such consent not to be unreasonably
withheld. Adjusted LIBOR Loans may be prepaid or converted to Base Rate Loans
before the expiration date of the Interest Period applicable thereto only upon
payment to Bank of prepayment compensation determined as follows: (i) on the
prepayment date, the remaining payments of principal and interest that would
otherwise have become payable during or at the expiration of the Interest
Period pertaining to the principal being prepaid shall be discounted to a
present value at a rate per annum equal to the "Prepayment Yield to Maturity",
as hereinafter defined, plus any costs for reserves or assessments or for
reinvesting the amount being prepaid or converted, and if such discounted value
shall exceed the unpaid principal amount being prepaid or converted, then the
prepayment premium shall be an amount equal to such excess; otherwise no
prepayment premium shall be payable; (ii) the "Prepayment Yield to Maturity"
shall mean the yield to maturity of the debt obligation of the United States
Treasury (excluding those commonly known as "Flower Bonds") having a term
substantially equal to the term of the relevant Interest Period maturity date
nearest in expiration of the relevant Interest Period. The maturity date and
yield to maturity of such United States Treasury obligations shall be
determined on the basis of quotations published in the Wall Street Journal or
similar publication on the prepayment date or Conversion Date. If there shall
be more than one such debt obligation of the United States Treasury maturing
nearest in time to the expiration of the relevant Interest Period, the
Prepayment Yield to Maturity shall be the arithmetic average of the yields to
maturity of all such obligations.
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2.5 Capital Expenditure Line of Credit.
2.5.1 Amount. Provided that no event of
Default or Unmatured Event of Default has occurred and is continuing and
subject to the terms and conditions set forth herein, Bank may in its sole
discretion, commencing on November ___________, 1996, and expiring on December
31, 1997, lend to Borrowers upon Borrowers' written request from time to time
certain principal amounts determined and approved by the Bank not to exceed
$10,000,000 in the aggregate for the purpose of financing Borrowers' capital
expenditures made in the normal course of business, in the form of one or more
term loans. Each such Capital Expenditure Loan shall mature on a date
determined and approved by the Bank which is reflective of the useful and/or
depreciable life of the equipment or other items to be purchased by
Borrower(s), but in no event shall such maturity date be later than a date
which is seven (7) years following the Funding Date of such Capital Expenditure
Loan. In addition to the security set forth in Section 3 of the Loan Agreement,
Bank may require in its sole discretion as a condition to the extension of a
Capital Expenditure Loan, that Borrowers grant to Bank a security interest in
the equipment or other items to be purchased by Borrowers with the proceeds of
any Capital Expenditure Loan.
2.5.2 Interest Rate. The Capital
Expenditure Loans shall bear interest on the unpaid principal balance thereof
at the Base Rate or Adjusted LIBOR, as the Borrowers may select, in accordance
with the provisions of Section 2.4.8 hereof.
2.5.3 Payment of Principal and Interest.
Each Capital Expenditure Loan shall be payable in installments of principal as
the Bank may determine in its sole discretion at the time such Capital
Expenditure Loan is extended by the Bank. Interest shall be paid as provided in
Section 2.4.8.3 of the Loan Agreement.
2.5.4 Capital Expenditure Note. To
evidence Borrowers' joint and several repayment obligations under the Capital
Expenditure Loans, Borrowers shall execute and deliver a Capital Expenditure
Note each time a Capital Expenditure Loan is extended by the Bank in the
original principal amount equal to such Capital Expenditure Loan. The terms of
the Capital Expenditure Notes shall reflect the terms of payment determined by
the Bank in accordance with Section 2.5.3 hereof.
2.5.5 Conditions Precedent. In addition to
the terms and conditions set forth in this Section 2.5, as conditions precedent
to the extension by Bank of each Capital Expenditure Loan,- Borrowers agree to
provide to Bank, in form and
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substance satisfactory to Bank and Bank's counsel, the following documents,
items and instruments:
2.5.5.1 a Capital Expenditure Note
pursuant to Section 2.5.4 hereof;
2.5.5.2 resolutions adopted by the
Boards of Directors of each Borrower authorizing the execution, delivery and
performance of the Capital Expenditure Note, certified by Borrower's Secretary
to be in full force and effect as of the date the Capital Expenditure Loan is
extended; and
2.5.5.3 invoices or bills of sale
setting forth the purchase price for the items to be acquired with the proceeds
of the Capital Expenditure Loans.
2.6 Acquisition Line of Credit.
2.6.1 Amount. Provided that no event of
Default or Unmatured Event of Default has occurred and is continuing and
subject to the terms and conditions set forth here+n, Bank may in its sole
discretion, commencing on November, 1996, and expiring on December 31, 1997,
extend to Borrowers from time to time upon Borrowers' written request the
Acquisition Line of Credit for purposes of providing temporary, initial
financing for acquisitions by Borrowers of entities and/or assets in the
construction materials, limestone products or related industries (each, an
"Acquisition"), pursuant to which Bank may extend Acquisition Loans to
Borrowers, in amounts determined and approved by the Bank which, if not
exhausting the unadvanced portion of the Acquisition Line of Credit or
Borrowing. Base, as the case may be, the Borrowers may, from time to time,
repay, and, subject to the terms determined by the Bank at the time- the
Acquisition Loans are extended to Borrowers, reborrow. Borrowers may not
reborrow Acquisition Loans pursuant to the Acquisition Line of Credit after
December 31, 1997.
2.6.2 Interest Rate. The Acquisition Loans
shall bear interest on the unpaid principal balance thereof at the Base Rate.
Interest on the outstanding principal balance of each Acquisition Loan shall be
payable monthly on the first business day of each month, commencing with the
first month following the Funding Date of such Acquisition Loan, and at
maturity.
2.6.3 Repayment of Principal; Prepayment.
The outstanding principal balance of, and any accrued and unpaid interest on,
all Acquisition Loans, and all Bank's Costs pertaining thereto, shall be
payable as determined by the Bank in its sole discretion exercised at the time
of the Acquisition Loan
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provided that each Acquisition Loan shall be paid in full on the earlier to
occur of (i) the date on which permanent financing for the Acquisition funded
by such Acquisition Loan is obtained, but no later than nine (9) months
following Funding Date of a particular Acquisition Loan, (ii) December 31,
1997, or (iii) the date on which the Acquisition Loan is payable as provided in
Section 8.2 hereof.
2.6.4 Acquisition Note. To evidence
Borrowers' joint and several repayment obligations under the Acquisition Line
of Credit, Borrowers shall execute and deliver an Acquisition Note concurrently
with the funding of each Acquisition Loan. The terms of the Acquisition Notes
shall reflect the terms of payment determined by the Bank in accordance with
Sections 2.6.2 and 2.6.3 hereof.
2.6.5 Conditions Precedent. In addition to
the terms and conditions set forth in this Section 2.6, as conditions precedent
to the extension by Bank of each Acquisition Loan, Borrowers agree to provide
to Bank, in form and substance satisfactory to Bank and Bank's counsel, the
following documents, items and instruments:
2.6.5.1 an Acquisition Note pursuant to
Section 2.6.4 hereof;
2.6.5.2 resolutions adopted by the Boards of
Directors of each Borrower authorizing the execution, delivery and performance
of the Acquisition Note, certified by Borrower's Secretary to be in full force
and effect as of the date the Acquisition Loan is extended; and
2.6.5.3 a copy of the definitive or proposed
acquisition agreement, together with copies of-all other relevant documentation
relating to the proposed acquisition.
6. Maturity Date. In the first sentence of Section 2.2.3 of the
Loan Agreement, the reference to "October l, 1998", is hereby deleted and
replaced with "October l, 2000".
7. Capital Expenditures. Section 7.1.12 of the Loan Agreement is
hereby amended and restated in its entirety as follows:
Make Capital Expenditures in any Fiscal Year in excess of
$15,000,000; or
8. Financial Covenants.
8.1 Section 6.1.13.2 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
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Maintain at all times the ratio of Borrowers' consolidated
Total Liabilities to consolidated Net Worth at no greater than
1.75 to l. Borrowers' ratio of Total Liabilities to Net Worth
shall be tested quarterly upon Bank's receipt of Borrowers'
quarterly consolidated Financial Statements;
8.2 Section 6.1.13.3 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
Maintain at all times the ratio of Borrowers' Cash Flow to
Borrowers' Fixed Obligations at no less than 1.5 to 1, which
ratio shall be tested quarterly upon receipt of Borrowers'
quarterly consolidated Financial Statements, on a rolling
four-quarter historical basis commencing with the four
consecutive Calendar Quarters ending December 31, 1996.
9. Conditions Precedent. As conditions precedent to the
effectiveness of this Fifth Amendment, Borrower acknowledges that Bank shall
have received, in form and substance reasonably satisfactory to Bank and Bank's
counsel, in addition to this Fifth Amendment, the following documents, items
and instruments:
9.1 the Amended and Restated Note executed by Borrowers
substantially in the form attached hereto as Exhibit A;
9.2 the Amended and Restated Term Note executed by
Borrowers substantially in the form attached hereto as Exhibit B;
9.3 resolutions adopted by the Boards of Directors of
each Borrower authorizing the execution, delivery and performance of this Fifth
Amendment, the Amended and Restated Note, Amended and Restated Term Note
certified by Borrower's Secretary to be in full force and effect as of the date
hereof; and
9.4 Such additional documents or instruments as Bank may
reasonably require.
Upon Borrower's satisfaction of all of the foregoing
conditions precedent, Bank, in consideration of the execution and delivery of
the replacement promissory notes described herein to evidence the Loans as
modified hereby, shall return to Borrowers the original promissory notes in
Bank's possession evidencing the Loans prior to the date hereof, marked
"cancelled and replaced."
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15
In the event Bank agrees to fund any Acquisition Loan or any
Capital Expenditure Loan, Bank shall have received on or before the Funding
Date thereof, in form and substance reasonably satisfactory to Bank and Bank's
counsel, a promissory note or notes, as applicable, and such collateral and
other documentation as Bank may reasonably require.
10. Miscellaneous.
10.1 Integration. This fifth Amendment, the Loan
Agreement, and the other loan documents shall be construed as one agreement,
and in the event of any inconsistency, the provisions of this Fifth Amendment
shall control the provisions of any other Loan Document, except for the Notes.
This Fifth Amendment, the Loan Agreement, the Notes, and the other Loan
Documents, contain all of the agreements of the parties hereto with respect to
the subject matter of each thereof and supersede all prior or contemporaneous
agreements with respect to such subject matter.
10.2 Survivorship. The terms of this Fifth Amendment and
all agreements, representations, warranties or covenants made by Borrower in
the Loan Agreement and the other Loan Documents shall survive the issuance and
payment of the Notes and shall continue as long as any portion of the
Indebtedness shall remain outstanding and unpaid, provided, however, that the
covenants set forth in Section 1.6 and 6.2 of the Loan Agreement shall survive
the payment of the Indebtedness.
10.3 Successors and Assigns; Governing Law. This Fifth
Amendment shall be binding upon and inure to the benefit of the
respective-successors and assigns of the parties hereto; provided however that
no Borrower shall assign this Fifth Amendment, or any of its respective rights
or duties arising hereunder, without the prior written consent of Bank. This
Fifth Amendment shall be construed and enforced in accordance with the internal
laws of the Commonwealth of Pennsylvania.
10.4 WAIVER OF JURY TRIAL. EACH BORROWER AND BANK
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT BY ANY PARTY
WITH RESPECT TO THE LOAN AGREEMENT, AS AMENDED HEREBY, OR AS AMENDED HEREAFTER,
ANY LOAN DOCUMENT OR THE INDEBTEDNESS.
10.5 Partial Invalidity. If any provision of this Fifth
Amendment shall for any reason be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision hereof, but
this Fifth Amendment shall be construed as if such invalid or unenforceable
provision had never been contained herein.
15
16
10.6 Headings. The heading of any paragraph contained in
this Fifth Amendment is for convenience of reference only and shall not be
deemed to amplify, limit, modify or give full notice of the provisions thereof.
10.7 Counterparts. This Fifth Amendment may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment under seal, intending to be legally bound hereby, on the day and year
first above written.
Bank:
CORESTATES BANK, N.A.
By: /s/ XXXXXXXX X. XXXXXX
----------------------------------
Xxxxxxxx X. Xxxxxx,
Vice President
Borrowers:
UNITED STATES LIME & MINERALS, INC.
(formerly known as Scottish Heritable,
Inc.)
By: /s/ XXXXXX X. XXXXX
----------------------------------
XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
----------------------------------
ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
----------------------------------
TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
----------------------------------
16
17
AMENDED AND RESTATED TERM NOTE
$4,476,194 November 27th, 1996
FOR VALUE RECEIVED, UNITED STATES LIME & MINERALS, INC. (formerly
known as Scottish Heritable, Inc.), a Texas corporation, XXXXXX LIME COMPANY, a
Pennsylvania corporation, TEXAS LIME COMPANY, a Texas corporation, and ARKANSAS
LIME COMPANY, an Arkansas corporation (collectively referred to as
"Borrowers"), jointly and severally promise to pay to the order of CoreStates
Bank, N.A., a national banking association ("Bank"), the principal sum of Four
Million Four Hundred Seventy-six Thousand One Hundred Ninety-four ($4,476,194)
Dollars together with interest on the unpaid principal amount hereof accrued
from the date hereof to maturity (whether by acceleration or otherwise) or
earlier repayment at a rate per annum equal to the Base Rate or, with respect
to such portion of the Term Loan as is converted to or continued as an Adjusted
LIBOR Loan, at a rate based on the applicable Adjusted LIBOR on the relevant
Interest Rate Determination Date plus two and one-half percent (2.50%) per
annum, payable in accordance with Section 2.2 of the Loan and Security
Agreement, as amended (the Fifth Amendment of which is dated of even date
herewith) by and between Borrowers and the Bank (the "Loan Agreement") and as
hereinafter provided. All initially capitalized terms not otherwise defined
herein shall have the same meanings as ascribed to them in the Loan Agreement
unless the context clearly requires to the contrary.
Principal shall be payable in 47 equal consecutive monthly
installments of principal of $95,238.17 each, due on the first Business Day of
each consecutive month, beginning on the first Business Day of the month
following the date hereof and continuing monthly thereafter on the first
Business Day of each month, with a final payment of all of the remaining
outstanding principal balance, together with all accrued and unpaid interest
and Bank's Costs pertaining thereto due and payable on October 1, 2000.
Interest on Base Rate Loans shall be payable monthly, in arrears
through the last Business Day of each month, on the first Business Day of each
month, with the first payment to made on the first Business Day of the first
month following the date hereof and at maturity. Interest payments on Adjusted
LIBOR Loans shall be payable, in arrears, on and to, but not including, the
last day of the Interest Period applicable to that Loan (subject to the
provisions of Section 2.4.8.3 of the Loan Agreement); provided,
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18
however, that interest on such Loans with Interest Periods of 6 months shall be
payable, in arrears, on and to the last day of the third month of such Interest
Periods, as the case may be, and the last day of the relevant Interest Period,
subject as aforesaid. Interest shall be calculated on the basis of a 360 day
year, but charged for the number of days actually elapsed during any year or
part thereof.
Borrowers may prepay the entire amount of the principal of the Term
Loan at any time, or in portions of $50,000 or an integral multiple from time
to time, without premium or penalty during the term thereof, provided that
Adjusted LIBOR Loans may be prepaid only as provided in Section 2.4.8.6 of the
Loan Agreement.
All payments of principal, interest, and fees hereunder shall be made
by Borrowers jointly and severally without defense, set off, or counterclaim
and in same day funds and delivered to Bank not later than 12:00 noon
(Philadelphia time) on the date due at Bank's office located at The Xxxxxxx
Building, 11th Floor, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 or
such other place as shall be designated in writing for such purpose in
accordance with the terms of the Loan Agreement.
Each Borrower authorizes Bank to charge such Borrower's demand deposit
account with Bank in order to cause timely payment to be made to Bank of all
principal, interest and fees hereunder as provided in Section 1.5 of the Loan
Agreement.
Subject to Section 2.4.8.2, whenever any payment on this Amended and
Restated Term Note shall be stated to be due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of interest on this
Amended and Restated Term Note.
Any principal payment hereon and, to the extent permitted by
applicable law, any interest payment hereon which is not paid when due, and any
other amount due to Bank under the Loan Agreement or any other Loan Document
not paid when due, in any case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall thereafter bear interest
payable upon demand at a rate per annum which is three percent (3%) in excess
of the Base Rate.
It shall be an event of default hereunder if an Event of Default shall
have occurred under the Loan Agreement (a "Default").
In addition to other remedies of Bank as set forth in this Amended and
Restated Term Note, the Loan Agreement, or any other Loan Document, upon the
occurrence of a Default which shall
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19
be continuing, Bank may, without demand, by written notice to Borrowers, cause
this Amended and Restated Term Note to become immediately due and payable in
the manner, upon the conditions and with the effect provided in the Loan
Agreement.
THE FOLLOWING SETS FORTH A WARRANT OF ATTORNEY TO CONFESS JUDGMENT
AGAINST BORROWERS. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT
AGAINST BORROWERS, BORROWERS, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO
CONSULT WITH) SEPARATE COUNSEL FOR BORROWERS, AND WITH KNOWLEDGE OF THE LEGAL
EFFECT HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS BORROWERS HAVE, OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY TO BE HEARD UNDER THE CONSTITUTIONS AND LAWS OF
THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. BORROWERS SPECIFICALLY
ACKNOWLEDGE THAT BANK HAS RELIED ON THIS WARRANT OF ATTORNEY IN GRANTING THE
FINANCIAL ACCOMMODATIONS DESCRIBED HEREIN.
UPON THE OCCURRENCE AND CONTINUANCE OF ANY DEFAULT, BORROWERS,
INDIVIDUALLY AND COLLECTIVELY, HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR BORROWERS OR ANY BORROWER IN ANY
AND ALL ACTIONS, AND TO: (I) ENTER JUDGMENT AGAINST BORROWERS OR ANY BORROWER
FOR THE PRINCIPAL SUN HEREOF, TOGETHER WITH ACCRUED AND UNPAID INTEREST; OR
(II) SIGN FOR BORROWERS OR ANY BORROWER AN AGREEMENT FOR ENTERING IN ANY
COMPETENT COURT AN AMICABLE ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST
BORROWERS OR ANY BORROWER FOR ALL OR ANY PART OF THE INDEBTEDNESS; AND IN
EITHER CASE FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE COLLECTION FEE.
EACH BORROWER FURTHER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY
COURT OF RECORD TO APPEAR FOR AND TO ENTER JUDGMENT AGAINST BORROWERS OR ANY
BORROWER AND IN FAVOR OF BANK OR ANY HOLDER HEREOF WITH RESPECT TO AN AMICABLE
ACTION OF REPLEVIN OR ANY OTHER ACTION TO RECOVER POSSESSION OF ANY COLLATERAL
PURSUANT TO THE LOAN AGREEMENT. BORROWERS WAIVE ALL RELIEF FROM ANY AND ALL
APPRAISEMENT OR EXEMPTION LAWS NOW OR IN FORCE OR HEREINAFTER ENACTED. IF A
COPY OF THIS AMENDED AND RESTATED TERM NOTE, VERIFIED BY AFFIDAVIT OF AN
OFFICER OF BANK OR ANY OTHER HOLDER HEREOF, SHALL BE FILED IN ANY PROCEEDING OR
ACTION WHEREIN JUDGMENT IS TO BE CONFESSED, IT SHALL NOT BE NECESSARY TO FILE
THE ORIGINAL HEREOF AND SUCH VERIFIED COPY SHALL BE SUFFICIENT WARRANT FOR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWERS OR ANY BORROWER AS PROVIDED HEREIN. JUDGMENT MAY BE CONFESSED FROM
TIME TO TIME UNDER THE AFORESAID POWERS WHICH SHALL NOT BE EXHAUSTED BY ONE
EXERCISE THEREOF.
Borrowers hereby individually and collectively waive presentment,
demand for payment, notice of dishonor, protest or notice of protest and any
and all notices or demands and, to the full extent permitted by law, the right
to plead any statute of
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20
limitations as a defense to any demand hereunder in connection with the
delivery, acceptance or performance of this Amended and Restated Term Note.
The joint and several liabilities and obligations of Borrowers
hereunder shall be unconditional without regard to the liability or obligations
of any other party and shall not be in any manner affected by any indulgence
whatsoever granted or consented to by Bank, including, but not limited to, any
extension of time, renewal, waiver or other modification. Any failure of Bank
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any time and from time to time
thereafter.
This Amended and Restated Term Note shall be governed as to its
validity, interpretation and effect by the internal laws of the Commonwealth of
Pennsylvania. Any and all actions at law or in equity relating to this Amended
and Restated Term Note and the Indebtedness shall be brought, and jurisdiction
may be had, in the courts of the Philadelphia County, Pennsylvania, or at the
election of the holder hereof, the United States District Court for the Eastern
District of Pennsylvania. Borrowers consent in advance to service of process by
registered mail, return receipt requested, to the address set forth in Section
9.3 of the Loan Agreement.
EACH BORROWER AND BANK EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION BROUGHT BY ANY PARTY WITH RESPECT TO THE INDEBTEDNESS OR ANY LOAN
DOCUMENT.
This Amended and Restated Term Note may not be changed or amended
orally but only by an agreement in writing and signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
This Amended and Restated Term Note is secured by and entitled to the
benefits of certain other Loan Documents.
If any provision of this Amended and Restated Term Note shall for any
reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, but this Amended
and Restated Term Note shall be construed as if such invalid or unenforceable
provision had never been contained herein.
Borrowers promise to pay all Bank's Costs and expenses, including
reasonable attorneys' fees, as provided in Section 1.6 of the Loan Agreement,
incurred in the collection and enforcement of this Amended and Restated Term
Note. Each Borrower and endorsers of this Amended and Restated Term Note
hereby consent to renewals
4
21
and extensions of time at or after the maturity hereof, without notice.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
Borrowers have executed this Amended and Restated Term Note, as an instrument
under seal, the day and year first above written.
UNITED STATES LIME & MINERALS, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
5
22
AMENDED AND RESTATED NOTE
$6,000,000 November 27th, 1996
FOR VALUE RECEIVED, UNITED STATES LIME & MINERALS, INC. (formerly
known as Scottish Heritable, Inc.), a Texas corporation, XXXXXX LIME COMPANY, a
Pennsylvania corporation, TEXAS LIME COMPANY, a Texas corporation, and ARKANSAS
LIME COMPANY, an Arkansas corporation (collectively referred to as
"Borrowers"), jointly and severally promise to pay to the order of CoreStates
Bank, N.A., a national banking association ("Bank"), the lesser of (x) Six
Million Dollars ($6,000,000) or (y) the aggregate unpaid principal amount of
all Cash Advances made by Bank to the Borrowers or any Borrower under the Loan
and Security Agreement, as amended (the Fifth Amendment of which is dated of
even date herewith) by and between Borrowers and Bank ("Loan Agreement"),
together with interest on the unpaid principal amount hereof accrued from the
date hereof to the Termination Date (whether by acceleration or otherwise) or
earlier repayment at a rate per annum equal to the Base Rate or, with respect
to such portion of the Revolving Credit made as, converted to or continued as
an Adjusted LIBOR Loan, at a rate based on the applicable Adjusted LIBOR on the
relevant Interest Rate Determination Date plus two and one-quarter percent
(2.25%) per annum, payable in accordance with Section 2.1 of the Loan Agreement
and as hereinafter provided, on the Termination Date. All initially capitalized
terms not otherwise defined herein shall have the same meanings as ascribed to
them in the Loan Agreement unless the context clearly requires to the contrary.
Interest on Base Rate Loans shall be payable monthly, in arrears
through the last Business Day of each month, on the first Business Day of each
month, with the first payment to made on the first Business Day of the first
month following the date hereof and at maturity. Interest payments on Adjusted
LIBOR Loans shall be payable, in arrears, on and to, but not including, the
last day of the Interest Period applicable to that Loan (subject to the
provisions of Section 2.4.8.3 of the Loan Agreement); provided, however, that
interest on such Loans with Interest Periods of 6 months shall be payable, in
arrears, on and to the last day of the third month of such Interest Periods, as
the case may be, and the last day of the relevant Interest Period, subject as
aforesaid. Interest shall be calculated on the basis of a 360 day year, but
charged for the number of days actually elapsed during any year or part
thereof.
23
Any principal payment on Cash Advances not paid when due and, to the
extent permitted by applicable law, any interest payment on Cash Advances not
paid when due, and any other amount due to Bank under the Loan Agreement or any
other Loan Document not paid when due, in any case whether at stated maturity,
by notice of prepayment, by acceleration or otherwise, shall thereafter bear
interest payable upon demand at a rate per annum which is two and three-fourths
percent (2-3/4%) per annum in excess of the Base Rate.
This Amended and Restated Note is issued pursuant to and entitled to
the benefits of the Loan Agreement to which reference is hereby made for a more
complete statement of the terms and conditions under which Cash Advances
evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Amended and
Restated Note shall be made by Borrowers without defense, setoff or
counterclaim in same day funds and delivered to Bank not later than 12:00 noon
(Philadelphia time) on the date due to Bank at the Banks' offices at The
Xxxxxxx Building, 11th Floor, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000 or at such other place as shall be designated in writing for such purpose
in accordance with the terms of the Loan Agreement. Each of Bank and any
subsequent holder of this Amended and Restated Note agrees, by its acceptance
hereof, that before disposing of this Amended and Restated Note or any part
hereof it will make a notation hereon of all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this
Amended and Restated Note shall not limit or otherwise affect the obligation of
Borrowers hereunder with respect to payments of principal or interest on this
Amended and Restated Note.
Subject to Section 2.4.8.2 of the Loan Agreement, whenever any payment
on this Amended and Restated Note shall be stated to be due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of interest
on this Amended and Restated Note.
Each Borrower authorizes Bank to charge such Borrower's demand deposit
account with Bank in order to cause timely payment to be made to Bank of all
principal, interest and fees hereunder as provided in Section 1.5 of the Loan
Agreement.
This Amended and Restated Note is subject to mandatory prepayment and
repayment at the option of the Borrowers as provided in Sections 2.4.6 and
2.1.2 of the Loan Agreement, provided that
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24
Adjusted LIBOR Loans may be prepaid only as provided in Section 2.4.8.6 of the
Loan Agreement.
This Amended and Restated Note is secured by and entitled to the
benefits of certain other Loan Documents.
The liabilities and obligations of Borrowers hereunder shall be
unconditional without regard to the liability or obligations of any other party
and shall not be in any manner affected by any indulgence whatsoever granted or
consented to by Bank, including, but without being limited to, any release by
any party of any Collateral, extension of time, renewal, waiver or other
modification. Any failure of Bank to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any time and from time to time thereafter.
This Amended and Restated Note shall be governed as to its validity,
interpretation and effect by the internal laws of the Commonwealth of
Pennsylvania for contracts made and to be performed in Pennsylvania. Each
Borrower consents to the jurisdiction of the courts of Philadelphia County,
Pennsylvania, or at the election of the holder hereof, the United States
District Court for the Eastern District of Pennsylvania, in any and all actions
and proceedings by Bank arising under or in any way related to this Amended and
Restated Note or the Loan Agreement or the transactions contemplated thereby.
Notwithstanding anything herein to the contrary, an action to enforce the
Bank's rights with respect to the Collateral may be brought in any jurisdiction
in which the Collateral is located. Notwithstanding Section 9.8 of the Loan
Agreement, with respect to any action of foreclosure, ejectment, distraint,
distress, expulsion, removal or other disentitlement of any parcel of Real
Estate, the provisions of the applicable Mortgage shall control the provisions
of any other Loan Document.
EACH BORROWER AND BANK EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION BROUGHT BY ANY PARTY WITH RESPECT TO THIS AMENDED AND RESTATED NOTE
OR THE LOAN AGREEMENT.
It shall be an event of default hereunder if an Event of Default shall
have occurred under the Loan Agreement (a "Default").
Upon the occurrence of a Default which shall be continuing, the unpaid
balance of the principal amount of this Amended and Restated Note, together
with all accrued but unpaid interest thereon, and all other Indebtedness may
become, or may by written notice to Borrowers be declared to be, due and
payable in the manner, upon the conditions, and with the effect, provided in
the Loan Agreement.
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25
THE FOLLOWING SETS FORTH A WARRANT OF ATTORNEY TO CONFESS JUDGMENT
AGAINST BORROWERS. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT
AGAINST BORROWERS, BORROWERS, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO
CONSULT WITH) SEPARATE COUNSEL FOR BORROWERS, AND WITH KNOWLEDGE OF THE LEGAL
EFFECT HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS BORROWERS HAVE, OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY TO BE HEARD UNDER THE CONSTITUTIONS AND LAWS OF
THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. BORROWERS SPECIFICALLY
ACKNOWLEDGE THAT BANK HAS RELIED ON THIS WARRANT OF ATTORNEY IN GRANTING THE
FINANCIAL ACCOMMODATIONS DESCRIBED HEREIN.
UPON THE OCCURRENCE AND CONTINUANCE OF ANY DEFAULT, BORROWERS,
INDIVIDUALLY AND COLLECTIVELY, HEREBY IRREVOCABLY AUTHORIZE AND EMPOWER ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR BORROWERS OR ANY BORROWER IN ANY
AND ALL ACTIONS, AND TO: (I) ENTER JUDGMENT AGAINST BORROWERS OR ANY BORROWER
FOR THE PRINCIPAL SUM HEREOF, TOGETHER WITH ACCRUED AND UNPAID INTEREST; OR
(II) SIGN FOR BORROWERS OR ANY BORROWER AN AGREEMENT FOR ENTERING IN ANY
COMPETENT COURT AN AMICABLE ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST
BORROWERS OR ANY BORROWER FOR ALL OR ANY PART OF THE INDEBTEDNESS; AND IN
EITHER CASE FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE COLLECTION FEE.
EACH BORROWER FURTHER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY
COURT OF RECORD TO APPEAR FOR AND TO ENTER JUDGMENT AGAINST BORROWERS OR ANY
BORROWER AND IN FAVOR OF BANK OR ANY HOLDER HEREOF WITH RESPECT TO AN AMICABLE
ACTION OF REPLEVIN OR ANY OTHER ACTION TO RECOVER POSSESSION OF ANY COLLATERAL
PURSUANT TO THE LOAN AGREEMENT. BORROWERS WAIVE ALL RELIEF FROM ANY AND ALL
APPRAISEMENT OR EXEMPTION LAWS NOW OR IN FORCE OR HEREINAFTER ENACTED. IF A
COPY OF THIS AMENDED AND RESTATED NOTE, VERIFIED BY AFFIDAVIT OF AN OFFICER OF
BANK OR ANY OTHER HOLDER HEREOF, SHALL BE FILED IN ANY PROCEEDING OR ACTION
WHEREIN JUDGMENT IS TO BE CONFESSED, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL HEREOF AND SUCH VERIFIED COPY SHALL BE SUFFICIENT WARRANT FOR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWERS OR ANY BORROWER AS PROVIDED HEREIN. JUDGMENT MAY BE CONFESSED FROM
TIME TO TIME UNDER THE AFORESAID POWERS WHICH SHALL NOT BE EXHAUSTED BY ONE
EXERCISE THEREOF.
The terms of this Amended and Restated Note may not be changed or
amended orally but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change, modification, or discharge is
sought.
Borrowers and endorsers, if any, of this Amended and Restated Note
hereby waive presentment, demand for payment, notice of dishonor, protest or
notice of protest and any and all notices or demands in connection with the
delivery, acceptance,
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26
performance, extension or renewal of this Amended and Restated Note.
Borrowers promise to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in Sections 1.6 and 3.1.5 of the Loan
Agreement, incurred in the collection and enforcement of this Amended and
Restated Note. Borrowers and endorsers, if any, of this Amended and Restated
Note hereby consent to renewals and extensions of time at or after the maturity
hereof, without notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent permitted by law, the
right to plead any statute of limitations as a defense to any demand hereunder.
If any provision of this Amended and Restated Note shall for any
reason be held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, but this Amended
and Restated Note shall be construed as if such invalid or unenforceable
provision had never been contained herein.
IN WITNESS WHEREOF, Borrowers have caused this Amended and Restated
Note to be executed and delivered by their respective duly authorized officers,
on the day and year first above written.
UNITED STATES LIME & MINERALS, INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
5
27
TRANSACTIONS ON NOTE
Amount of Outstanding
Amount of Principal Principal
Loan Made Paid Balance Notation
Date This Date This Date This Date Made By
---- --------- --------- --------- -------
6
