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Exhibit 10(aa)
AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this "Third
Amendment"), dated this 29th day of September, 1995 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 and Amendment No. 2 to Loan and
Security Agreement dated April 28, 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) extend the Termination Date until November 1, 1997,
and (ii) reduce the rates of interest applicable to Revolving Credit and the
Term Loan as provided herein. 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 Third Amendment is a
supplement to and a modification of the Loan Agreement pursuant to Section 9.2
thereof. To the extent not 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. Termination Date. The defined term "Termination
Date" is hereby amended and restated in its entirety as follows:
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"Termination Date" means November 1, 1997 or such later date as may be
agreed to in writing by Bank.
3. Interest Rate Reductions.
3.1 Revolving Credit. The first sentence of Section 2.1.1 of
the Loan Agreement 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 fluctuating rate equal to the Base
Rate per annum, with the first payment to be made on the first
Business Day of the month following the month containing the
date of the first Cash Advance, and thereafter on the first
Business Day of each consecutive month and at maturity.
3.2 Term Loan. The first sentence of Section 2.2.2 of the
Loan Agreement is hereby amended and restated in its entirety as follows:
The Term Loan shall bear interest on the unpaid principal
balance thereof at a fluctuating rate per annum equal to the
sum of the Base Rate plus one-fourth percent (0.25%) per
annum.
4. Conditions Precedent. As conditions precedent to the
performance by Bank of any of Bank's obligations hereunder, Borrower
acknowledges that Bank shall have received, in form or substance satisfactory
to Bank and Bank's counsel, in addition to this Third Amendment, the following
documents, items and instruments:
4.1 the Second Allonge to Note executed by Borrowers
substantially in the form attached hereto as Exhibit A;
4.2 the Second Allonge to Term Note executed by Borrowers
substantially in the form attached hereto as Exhibit B;
4.3 Resolutions adopted by the Boards of Directors of
each Borrower authorizing the execution, delivery and performance of this Third
Amendment and the Second Allonges to the Note and Term Note, all certified by
Borrower's Secretary to be in full force and effect as of the date hereof; and
4.4 Such additional documents or instruments as Bank may
reasonably require.
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5. Miscellaneous.
5.1 Integration. This Third 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 Third Amendment
shall control the provisions of any other Loan Document, except for the Notes.
This Third 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.
5.2 Survivorship. The terms of this Third 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.
5.3 Successors and Assigns; Governing Law. This Third
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 Third Amendment, or any of its respective rights or duties
arising hereunder, without the prior written consent of Bank. This Third
Amendment shall be construed and enforced in accordance with the internal laws
of the Commonwealth of Pennsylvania.
5.4 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.
5.5 Partial Invalidity. If any provision of this Third
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 Third Amendment shall be construed as if such invalid or unenforceable
provision had never been contained herein.
5.6 Headings. The heading of any paragraph contained in
this Third Amendment is for convenience of reference only and shall not be
deemed to amplify, limit, modify or give full notice of the provisions thereof.
5.7 Counterparts. This Third Amendment may be executed in
one or more counterparts, each of which shall be deemed
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an original, but all of which together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Third 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
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Xxxxxxxx X. Xxxxxx,
Vice President
Borrowers:
UNITED STATES LIME & MINERALS,
INC.(formerly known as Scottish
Heritable, Inc.)
By: /s/ XXXXXX X. XXXX
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XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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SECOND ALLONGE TO NOTE
ALLONGE, dated September 29th, 1995, attached to and forming a
part of a Note, dated October 20, 1993 as previously amended by the Allonge to
Note dated as of December 23, 1994 (collectively, the "Note"), made by SCOTTISH
HERITABLE, INC., a Texas corporation (now known as United States Lime &
Minerals, Inc.), XXXXXX LIME COMPANY, a Pennsylvania corporation, TEXAS LIME
COMPANY, a Texas corporation, and ARKANSAS LIME COMPANY, an Arkansas
corporation (the aforesaid four corporations collectively, the "Borrowers"),
payable to the order of CoreStates Bank, N.A. (the "Bank") in the original
principal amount of $6,000,000.
The second paragraph of the Note is amended to read in full as
follows:
"Borrowers also promise to pay interest on the unpaid
principal amount of all Cash Advances from the date made to
maturity (whether by acceleration or otherwise) or earlier
repayment at a fluctuating rate per annum equal to the Base
Rate per annum, which fluctuating rate shall change as and
when the Base Rate shall change, or, if applicable, at the
rate set forth in Section 2.4.7 of the Loan Agreement."
In all other respects, the Note is confirmed, ratified and
approved and, as amended by this Second Allonge to Note, shall continue in full
force and effect.
IN WITNESS WHEREOF, the Borrowers and the Bank have caused
this Second Allonge to Note to be executed and delivered by their respective
duly authorized officers as of the date and year first above written.
UNITED STATES LIME & MINERALS, INC.
(formerly known as Scottish
Heritable, Inc.)
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President and Chief
Executive Officer
[Signatures continued on next page]
(1)
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XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
Accepted and agreed to:
CORESTATES BANK, N.A.
By: /s/ XXXXXXXX X. XXXXXX
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Xxxxxxxx X. Xxxxxx
Vice President
(2)
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SECOND ALLONGE TO TERM NOTE
ALLONGE, dated September 29th, 1995, attached to and forming a
part of a Term Note, dated October 20, 1993 as previously amended by the First
Amendment to Term Note dated as of March 1, 1994 and the Allonge to Term Note
dated as of December 23, 1994 (collectively, the "Term Note"), made by SCOTTISH
HERITABLE, INC., a Texas Corporation (now known as United States Lime &
Minerals, Inc.), XXXXXX LIME COMPANY, a Pennsylvania corporation, TEXAS LIME
COMPANY, a Texas corporation, and ARKANSAS LIME COMPANY, an Arkansas
corporation (the aforesaid four corporations collectively, the "Borrowers"),
payable to the order of CoreStates Bank, N.A. (the "Bank") in the original
principal amount of $8,000,000.
The first sentence of the first paragraph of the Term Note is
amended to read in full as follows:
"FOR VALUE RECEIVED, 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
the "Borrowers"), jointly and severally promise to pay to the
order of CoreStates Bank, N.A., a national banking association
which also conducts business as Philadelphia National Bank and
CoreStates First Pennsylvania Bank ("Bank"), the principal sum
of Eight Million ($8,000,000) 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 the rate per annum which (A) prior to
March 1, 1994 shall be the fluctuating rate per annum at all
times equal to the sum of the Base Rate plus one percent (1%)
per annum and (B) from and after March 1, 1994 and prior to
March 1, 1997 shall be the fixed rate of seven and ninety-five
one-hundredths percent (7.95%) per annum and (C) from and
after March 1, 1997 shall be the fluctuating rate per annum at
all times equal to the sum of the Base Rate plus one-fourth of
one percent (1/4%) per annum, which fluctuating rates shall
change as and when the Base Rate shall change, or, if
applicable, at the rate set forth in Section 2.4.7 of the Loan
Agreement, payable as provided herein and in accordance with
Section 2.2.3 of the Loan and Security Agreement of even date
herewith by, between, and among Borrowers and Bank (the 'Loan
Agreement')."
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In all other respects, the aforesaid Term Note is confirmed,
ratified and approved and, as amended by this Second Allonge to Term Note,
shall continue in full force and effect.
IN WITNESS WHEREOF, and intending to be legally bound hereby,
Borrowers have executed this Second Allonge to Term Note as an instrument under
seal as of the day and year first above written.
UNITED STATES LIME & MINERALS, INC.
(formerly known as Scottish
Heritable, Inc.)
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
President and Chief
Executive Officer
XXXXXX LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
TEXAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
ARKANSAS LIME COMPANY
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Senior Vice President
Accepted and agreed to:
CORESTATES BANK, N.A.
By: /s/ XXXXXXXX X. XXXXXX
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Xxxxxxxx X. Xxxxxx
Vice President
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