EXHIBIT 10.2
SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of August 25, 2004, made
by each of the signatories party hereto (including any permitted successors and
assigns, collectively, the "Grantors" and each a "Grantor"), in favor of Xxxxx
Fargo Bank, N.A., as Administrative Agent ("Administrative Agent"), for the
ratable benefit of the Lenders (as defined in the Credit Agreement defined
below) and Affiliates of the Lenders party to Swap Contracts with one or more of
the Grantors (collectively, the "Secured Creditors"). The Administrative Agent,
in said capacity, may also be referred to, from time to time, herein as the
"Secured Party".
BACKGROUND
Administrative Agent, Lenders, and United States Lime & Minerals, Inc., a
Texas corporation, entered into the Credit Agreement dated as of August 25,
2004, (said Credit Agreement, as it may be amended, restated, extended,
supplemented or otherwise modified in writing from time to time, being the
"Credit Agreement," and, as noted in Section 1.2 hereof, capitalized terms not
defined herein but defined therein being used herein as therein defined). It is
the intention of the parties hereto that this Agreement create a first priority
security interest in property of the Grantors in favor of the Administrative
Agent on behalf of the Secured Creditors securing the payment and performance of
the Obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce Lenders to make the Loans under the
Credit Agreement and to extend other credit accommodations under the Loan
Documents, each Grantor hereby agrees with the Secured Party, for the ratable
benefit of Secured Creditors, as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement:
"Accession" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
an accession (as defined in the UCC), and (whether or not included in that
definition), a good that is physically united with another good in such a manner
that the identity of the original good is not lost.
"Account" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
an account (as defined in the UCC), and (whether or not included in such
definition), a right to payment of a monetary obligation, whether or not earned
by performance for property that has been or is to be sold, leased, licensed,
assigned, or otherwise disposed of, and for service rendered or to be rendered,
and all right, title, and interest in any returned property, together with all
rights, titles, securities, and guarantees with respect thereto, including any
rights to stoppage in transit, replevin, reclamation, and resales, and all
related Liens whether voluntary or involuntary.
"Account Debtor" means any Person who is or who may become obligated to
each Grantor under, with respect to or on account of an Account.
"Chattel Paper" means all right, title, and interest of each Grantor (in
each case whether now or hereafter existing, owned, arising, or acquired) in and
to chattel paper (as defined in the UCC), and (whether or not included in such
definition), a Record or Records that evidence both a monetary obligation and a
security interest in specific Goods, a security interest in specific Goods and
software used in the Goods, or a lease of specific Goods.
"Collateral" means all (a) Accounts, (b) Accessions, (c) Chattel Paper,
(d) Deposit Accounts, (e) Documents, (f) Equipment, (g) Financial Assets, (h)
Fixtures, (i) General Intangibles, (j) Goods, (k) Instruments, (l) Inventory,
(m) Investment Property, (n) Letters of Credit, (o) Letter-of-Credit Rights, (p)
Payment Intangibles, (q) Securities, (r) supporting obligations, (s) cash and
cash accounts, (t Proceeds, (u) products, (v) Collateral Records, (w) Insurance,
(x) Money, (y) Pledged Equity Interests and (z) Special Collateral.
"Collateral Records" shall mean books, records, ledger cards, files,
correspondence, customer lists, blueprints, technical specifications, manuals,
computer software, computer printouts, tapes, disks and related data processing
software and similar items that at any time evidence or contain information
relating to any of the Collateral or are otherwise necessary of helpful in the
collection thereof or realization thereupon.
"Commercial Tort Claim" means all right, title, and interest of each
Grantor (in each case whether now or hereafter existing, owned, arising, or
acquired) in and to a commercial tort claim (as defined in the UCC), and
(whether or not included in such definition), all claims arising in tort with
respect to which the claimant (a) is an organization, or (b) an individual and
the claim (i) arose in the course of the claimant's business or profession, and
(ii) does not include damages arising out of personal injury to or the death of
an individual.
"Commodity Account" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to a commodity account (as defined in the UCC), and (whether or not included
in such definition), an account maintained by a Commodity Intermediary in which
a Commodity Contract is carried for a Commodity Customer.
"Commodity Contract" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to a commodity futures contract, an option on a commodity futures contract,
a commodity option, or any other contract if the contract or option is (a)
traded on or subject to the rules of a board of trade that has been designated
as a contract market for such a contract pursuant to the federal commodities
Laws, or (b) traded on a foreign commodity board of trade, exchange, or market,
and is carried on the books of a Commodity Intermediary for a Commodity
Customer.
"Commodity Customer" means a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
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"Commodity Intermediary" means (a) a Person that is registered as a
futures commission merchant under the federal commodities Laws or (b) a Person
that in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to federal commodities Laws.
"Copyright License" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to any written agreement, now or hereafter in effect, granting any right to
any third party under any Copyright now or hereafter owned by each such Grantor
or which each such Grantor otherwise has the right to license, or granting any
right to each such Grantor under any Copyright now or hereafter owned by any
third party, and all rights of each such Grantor under any such agreement.
"Copyrights" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
(a) all copyright rights in any work subject to the copyright Laws of any
Governmental Authority, whether as author, assignee, transferee, or otherwise,
(b) all registrations and applications for registration of any such copyright in
any Governmental Authority, including registrations, recordings, supplemental
registrations, and pending applications for registration in any jurisdiction,
and (c) all rights to use and/or sell any of the foregoing.
"Deposit Account" means all right, title, and interest of each Grantor (in
each case whether now or hereafter existing, owned, arising, or acquired) in and
to a deposit account (as defined in the UCC), and (whether or not included in
such definition), a demand, time, savings, passbook, or similar account
maintained at a bank (as defined in the UCC).
"Document" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to a
document (as defined in the UCC), and (whether or not included in such
definition), a document of title, xxxx of lading, dock warrant, dock receipt,
warehouse receipt, or order for the delivery of Goods.
"Electronic Chattel Paper" means all right, title, and interest of each
Grantor (in each case whether now or hereafter existing, owned, arising, or
acquired) in and to electronic chattel paper (as defined in the UCC), and
(whether or not included in such definition), chattel paper evidenced by a
Record or Records consisting of information stored in electronic medium.
"Equipment" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
equipment (as defined in the UCC), and (whether or not included in such
definition), all Goods other than Inventory or consumer goods, and all
improvements, accessions, or appurtenances thereto. The term Equipment shall
include Fixtures.
"Financial Asset" means all right, title, and interest of each Grantor (in
each case whether now or hereafter existing, owned, arising, or acquired) in and
to a financial asset (as defined in the UCC), and (whether or not included in
such definition), (a) a Security, (b) an obligation of a Person or a share,
participation or other interest in a Person or in property or an enterprise of a
Person, that is, or is of a type, dealt in or traded on financial markets or
that is recognized in any area in which it is issued or dealt in as a medium for
investment, or (c) any property that is held
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by a Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a financial asset under Article 8 of the Uniform
Commercial Code. As the context requires, "Financial Asset" means either the
interest itself or the means by which a Person's claim to it is evidenced,
including a certificated or uncertificated Security, a certificate representing
a Security, or a Security Entitlement.
"Fixtures" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
fixtures (as defined in the UCC), and (whether or not included in such
definition), all Goods that have become so related to particular real property
that an interest in them arises under the real property Law of the state in
which the real property is situated.
"General Intangible" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to a general intangible (as defined in the UCC (whether or not included in
such definition), all personal property, including things in action, other than
Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents,
Goods, Instruments, Investment Property, Letter-of-Credit Rights, Letters of
Credit, money, and oil, gas or other minerals before extraction. The term
"General Intangibles" includes software.
"Goods" means all right, title, and interest of each Grantor (in each case
whether now or hereafter existing, owned, arising, or acquired) in and to goods
(as defined in the UCC), and (whether or not included in such definition), all
things that are movable when a security interest attaches.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Instrument" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
an instrument (as defined in the UCC), and (whether or not included in such
definition), a negotiable instrument or any other writing that evidences a right
to the payment of a monetary obligation, is not itself a security agreement or
lease, and is of a type that in ordinary course of business is transferred by
delivery with any necessary endorsement or assignment.
"Insurance" shall mean all insurance policies covering any or all of the
Collateral (regardless of whether the Secured Party is the loss payee thereof).
"Intellectual Property" means all right, title, and interest of each
Grantor (in each case whether now or hereafter existing, owned, arising, or
acquired) in and to all intellectual and similar property of every kind and
nature, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, Trade Secrets, confidential or proprietary technical and business
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information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
inventory (as defined in the UCC), and (whether or not included in such
definition), Goods that (a) are leased by a Person as lessor, (b) are held by a
Person for sale or lease or to be furnished under a contract of service, (c) are
furnished by a Person under a contract of service, or (d) consist of raw
materials, work in process, or materials used or consumed in a business,
including packaging materials, scrap material, manufacturing supplies and spare
parts, and all such Goods that have been returned to or repossessed by or on
behalf of such Person.
"Investment Property" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to investment property (as defined in the UCC), and (whether or not included
in such definition), a Security (whether certificated or uncertificated) and
Pledged Debt.
"Letter of Credit" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to a letter of credit (as defined in the UCC).
"Letter-of-Credit Right" means all right, title, and interest of each
Grantor (in each case whether now or hereafter existing, owned, arising, or
acquired) in and to a letter-of-credit right (as defined in the UCC), and
(whether or not included in such definition), (a) a right to payment or
performance under a letter of credit, whether or not the beneficiary has
demanded or is at the time entitled to demand payment or performance, and (b)
the right of a beneficiary to demand payment or performance under a letter of
credit.
"License" means any Patent License, Trademark License, Copyright License,
or other similar license or sublicense.
"Money" shall mean "money" as defined in the UCC.
"Non-negotiable Certificate of Deposit" means all right, title, and
interest of each Grantor (in each case whether now or hereafter existing, owned,
arising, or acquired) in and to a writing signed by a bank that (a) states on
its face that it is a certificate of deposit (as defined in the UCC) or receipt
for a book entry, (b) contains an acknowledgment that a sum of money has been
received by the bank, with an express or implied agreement that the bank will
repay the sum of money, and (c) is not a negotiable Instrument.
"Patent License" means all right, title, and interest of each Grantor (in
each case whether now or hereafter existing, owned, arising, or acquired) in and
to any written agreement, now or hereafter in effect, granting to any third
party any right to make, use or sell any invention on which a Patent, now or
hereafter owned by each such Grantor or which each such Grantor otherwise has
the right to license, is in existence, or granting to each such Grantor any
right to
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make, use or sell any invention on which a Patent, now or hereafter owned by any
third party, is in existence, and all rights of each such Grantor under any such
agreement.
"Patents" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
(a) all letters patent of any Governmental Authority, all registrations and
recordings thereof, and all applications for letters patent of any Governmental
Authority, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals, or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Payment Intangible" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to a payment intangible (as defined in the UCC), and (whether or not
included in such definition), a General Intangible under which the Account
Debtor's principal obligation is a monetary obligation.
"Pledged Debt" shall mean all indebtedness owed to such Grantor, the
instruments evidencing such indebtedness, and all interest, cash, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
indebtedness.
"Pledged Equity Interests" shall mean all Pledged Stock, Pledged LLC
Interests, Pledged Partnership Interests and Pledged Trust Interests.
"Pledged LLC Interests" shall mean all interests in any limited liability
company and the certificates, if any, representing such limited liability
company interests and any interest of such Grantor on the books and records of
such limited liability company or on the books and records of any securities
intermediary pertaining to such interest and all dividends, distributions, cash,
warrants, rights, options, instruments, securities and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such limited liability company
interests.
"Pledged Partnership Interests" shall mean all interests in any general
partnership, limited partnership, limited liability partnership or other
partnership and the certificates, if any, representing such partnership
interests and any interest of such Grantor on the books and records of such
partnership or on the books and records of any securities intermediary
pertaining to such interest and all dividends, distributions, cash, warrants,
rights, options, instruments, securities and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such partnership interests.
"Pledged Stock" shall mean all shares of Capital Stock owned by such
Grantor and the certificates, if any, representing such shares and any interest
of such Grantor in the entries on the books of the issuer of such shares or on
the books of any securities intermediary pertaining to such shares, and all
dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such
shares.
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"Pledged Trust Interests" shall mean all interests in a business trust or
other trust and the certificates, if any, representing such trust interests and
any interest of such Grantor on the books and records of such trust or on the
books and records of any securities intermediary pertaining to such interest and
all dividends, distributions, cash, warrants, rights, options, instruments,
securities and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of such
trust interests.
"Proceeds" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
proceeds (as defined in the UCC), and (whether or not included in such
definition), (a) whatever is acquired upon the sale, lease, license, exchange,
or other disposition of the Collateral, (b) whatever is collected on, or
distributed on account of, the Collateral, (c) rights arising out of the
Collateral, (d) claims arising out of the loss, nonconformity, or interference
with the use of, defects or infringement of rights in, or damage to the
Collateral, (e) insurance payable by reason of the loss or nonconformity of,
defects or infringement of rights in, or damage to the Collateral, and (f) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral.
"Record" means information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in perceivable
form.
"Security" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
any obligations of an issuer or any shares, participations or other interests in
an issuer or in property or an enterprise of an issuer which (a) are represented
by a certificate representing a security in bearer or registered form, or the
transfer of which may be registered upon books maintained for that purpose by or
on behalf of the issuer, (b) are one of a class or series or by its terms is
divisible into a class or series of shares, participations, interests or
obligations, and (c)(i) are, or are of a type, dealt with or traded on
securities exchanges or securities markets or (ii) are a medium for investment
and by their terms expressly provide that they are a security governed by
Article 8 of the UCC.
"Securities Account" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to an account to which a Financial Asset is or may be credited in accordance
with an agreement under which the Person maintaining the account undertakes to
treat the Person for whom the account is maintained as entitled to exercise
rights that comprise the Financial Asset.
"Securities Intermediary" means (a) a clearing corporation, or (b) a
Person, including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Special Collateral" means Intellectual Property, Commercial Tort Claims,
Commodities Accounts, Letters of Credit Rights, Securities Accounts,
Instruments, Goods subject to certificates of title or registration of title, or
Tangible Chattel Paper.
"Tangible Chattel Paper" means all right, title, and interest of each
Grantor (in each case whether now or hereafter existing, owned, arising, or
acquired) in and to tangible chattel paper (as defined in the UCC), and (whether
or not included in such definition), chattel paper
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evidenced by a Record or Records consisting of information that is inscribed on
a tangible medium.
"Trade Secrets" means all right, title, and interest of each Grantor (in
each case whether now or hereafter existing, owned, arising, or acquired) in and
to trade secrets, all know-how, inventions, processes, methods, information,
data, plans, blueprints, specifications, designs, drawings, engineering reports,
test reports, materials standards, processing standards and performance
standards, and all software directly related thereto, and all Licenses or other
agreements to which such Grantor is a party with respect to any of the
foregoing.
"Trademark License" means all right, title, and interest of each Grantor
(in each case whether now or hereafter existing, owned, arising, or acquired) in
and to any written agreement, now or hereafter in effect, granting to any third
party any right to use any Trademark now or hereafter owned by such Grantor or
which such Grantor otherwise has the right to license, or granting to such
Grantor any right to use any Trademark now or hereafter owned by any third
party, and all rights of such Grantor under any such agreement.
"Trademarks" means all right, title, and interest of each Grantor (in each
case whether now or hereafter existing, owned, arising, or acquired) in and to
(a) all trademarks, service marks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, trade dress, logos,
other source or business identifiers, designs and general intangibles of like
nature, all registrations and recordings thereof, and all registration and
recording applications filed with any Governmental Authority in connection
therewith, and all extensions or renewals thereof, (b) all goodwill associated
therewith or symbolized thereby, (c) all other assets, rights and interests that
uniquely reflect or embody such goodwill, and (d) all rights to use and/or sell
any of the foregoing.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of Texas.
1.2 Other Definitional Provisions. Capitalized terms not otherwise defined
herein have the meaning specified in the Credit Agreement, and, to the extent of
any conflict, terms as defined in the Credit Agreement shall control (provided,
that a more expansive or explanatory definition shall not be deemed a conflict).
1.3 Construction. Unless otherwise expressly provided in this Agreement or
the context requires otherwise, (a) the singular shall include the plural, and
vice versa, (b) words of a gender include the other gender, (c) monetary
references are to Dollars, (d) time references are to Dallas time, (e)
references to "Articles," "Sections," "Exhibits," and "Schedules" are to the
Articles, Sections, Exhibits, and Schedules of and to this Agreement, (f)
headings used in this Agreement are for convenience only and shall not be used
in connection with the interpretation of any provision hereof, (g) references to
any Person include that Person's heirs, personal representatives, successors,
trustees, receivers, and permitted assigns, that Person as a debtor-in
possession, and any receiver, trustee, liquidator, conservator, custodian, or
similar party appointed for such Person or all or substantially all of its
assets, (h) references to any Law include every amendment or restatement to it,
rule and regulation adopted under it, and successor or replacement for it, (i)
references to a particular Loan Document include each amendment or
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restatement to it made in accordance with the Credit Agreement and such Loan
Document, and (j) the inclusion of Proceeds in the definition of "Collateral"
shall not be deemed a consent by Secured Parties to any sale or other
disposition of any Collateral not otherwise specifically permitted by the terms
of the Credit Agreement or this Agreement. This Agreement is a Loan Document.
ARTICLE II
GRANT OF SECURITY INTEREST
2.1 Assignment and Grant of Security Interest. (a) As security for the
payment and performance, as the case may be, in full of the Obligations, each
Grantor hereby assigns to, and pledges and grants to Secured Party, for its
benefit and the ratable benefit of the Lenders a security interest in the entire
right, title, and interest of Grantor in and to all property (except as
otherwise set forth herein) of each such Grantor, whether now or hereafter
existing, owned, arising or acquired, including but not limited to all
Collateral (provided, the amount of equity interests of any Foreign Subsidiary
pledged by such Grantor hereunder shall be limited to 65% of the issued and
outstanding equity interests of such Foreign Subsidiary); and
(b) Each Grantor hereby grants to Secured Party for the benefit of the
Secured Parties, an irrevocable royalty free right and license to use, upon the
occurrence and during continuance of an Event of Default, the Intellectual
Property worldwide and to enable Administrative Agent to exercise its rights and
remedies with respect to the Collateral as Administrative Agent reasonably deems
necessary or appropriate; provided, however, that with respect to Intellectual
Property in which such Grantor does not have sole and unfettered ownership, such
right and license is granted only to the extent such Grantor is not prohibited
by the granting instrument from granting such a right or license.
2.2 Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) each Grantor shall remain liable with respect to and under
all Collateral, (b) the exercise by Secured Party of any of the rights hereunder
shall not release any Grantor from any of its duties or obligations with respect
to or under any Collateral, and (c) neither Secured Party nor any Secured
Creditor shall have any obligation or liability with respect to or under any
Collateral by reason of this Agreement, nor shall Secured Party or any Secured
Creditor be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
2.3 Delivery of Security and Instrument Collateral. All certificates or
Instruments constituting or evidencing the Collateral shall be delivered to and
held by or on behalf of Administrative Agent pursuant hereto and shall be in
suitable form for transfer by delivery, or shall be accompanied by undated and
duly executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to Administrative Agent. If an Event of
Default exists, Administrative Agent has the right, with notice to any Grantor,
to transfer to or to register in the name of Administrative Agent or any of its
nominees any or all of such Collateral. In addition, Administrative Agent has
the right at any time, with the consent of the Borrower prior to an Event of
Default, to exchange certificates or instruments representing or evidencing
Collateral for certificates or instruments of smaller or larger denominations.
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2.4 Agreement With Respect to Collateral. Each Grantor and Administrative
Agent agree that to the extent that any of the Collateral may be deemed to be a
Fixture as opposed to Equipment, Inventory, or any other form of Collateral that
may be perfected by the filing of a UCC financing statement, it is the intention
of Grantors, the Secured Party and the Secured Creditors that such Collateral be
deemed to be Equipment, Inventory, or any other form of Collateral that may be
perfected by the filing of a UCC financing statement and such Collateral not be
deemed to be a Fixture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties. Each Grantor represents and warrants
to the Secured Party and to each of the Secured Creditors with respect to itself
and the Collateral owned by it that:
(a) This Agreement and the grant of the security interest pursuant to this
Agreement in the Collateral create a valid first priority security interest
(other than such Collateral that would require the execution of a control
agreement for such first priority security interest and other than Special
Collateral except as perfected under Section 4.1) in favor of the Secured Party
for the Secured Creditors in the Collateral (subject to Liens otherwise
permitted by the Credit Agreement), securing the payment and performance of the
Obligations, and all filings and other actions necessary or desirable to perfect
and protect such security interest and such priority have been duly taken (or
will be taken upon each Grantor obtaining rights in Collateral after the date
hereof).
(b) All of the Pledged Equity Interests have been duly and validly issued,
and the Pledged Stock is fully paid and nonassessable. All of the Pledged Equity
Interests consisting of certificated securities have been delivered to the
Administrative Agent. Other than Pledged Partnership Interests and Pledged LLC
Interests constituting General Intangibles, there are no Pledged Equity
Interests other than that represented by certificated securities in the
possession of the Administrative Agent. There are no restrictions in any
Organization Document governing any Pledged Equity Interest or any other
document related thereto which would limit or restrict (i) the grant of a Lien
in the Pledged Equity Interests, (ii) the perfection of such Lien or (iii) the
exercise of remedies in respect of such perfected Lien in the Pledged Equity
Interests as contemplated by this Agreement. Upon the exercise of remedies in
respect of Pledged Partnership Interests and Pledged LLC Interests, a transferee
or assignee of a partnership interests or membership interest, as the case may
be, of such partnership or limited liability company, as the case may be, shall
become a partner or member, as the case may be, of such partnership or limited
liability company, as the case may be, entitled to participate in the management
thereof and, upon the transfer of the entire interest of such Grantor, such
Grantor cases to be a partner or member, as the case may be.
(c) Schedule 1, Section (a) states the jurisdiction of organization, type
of entity, entity identification number issued by the appropriate authority of
the jurisdiction of each Grantor's organization, and exact name of each Grantor,
as such name appears in its currently effective organizational documents as
filed with the appropriate authority of the jurisdiction of each
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Grantor's organization. Schedule 1, Section (b) sets forth each other name each
Grantor has had in the past ten years, together with the date of the relevant
change. Except as set forth in Schedule 1, Section (c), each Grantor has not
changed its identity or type of entity in any way within the past ten years.
Changes in identity or type of entity include mergers, consolidations,
acquisitions (including both equity and asset acquisitions), and any change in
the form, nature, or jurisdiction of organization. Schedule 1 contains the
information required by this Section as to each acquiree or constituent party to
a merger, consolidation, or acquisition. Schedule 1, Section (d) states all
other names (including trade, assumed, and similar names) used by each Grantor
or any of its divisions or other business units at any time during the past ten
years. Schedule 1, Section (e) states the Federal Taxpayer Identification Number
of each Grantor.
(d) The chief executive office of each Grantor is located at the address
stated on Schedule 2, Section (a). Schedule 2, Section (b) states all locations
where each Grantor maintains any books or records relating to all Accounts (with
each location at which Chattel Paper, if any, is kept being indicated by an
"*"). All Tangible Chattel Paper, promissory notes, and other Instruments
evidencing the Accounts have been delivered and pledged to Administrative Agent
duly endorsed and accompanied by such duly executed instruments of transfer or
assignment as are necessary for such pledge, to be held as pledged collateral.
Schedule 2, Section (c) states all locations where each Grantor maintains any
Equipment or Inventory. Schedule 2, Section (d) states all the places of
business of each Grantor or other locations of Collateral not identified in
Schedule 2, Sections 2 (a), (b), or (c). Schedule 2, Section (e) states the
names and addresses of all Persons other than each Grantor who have possession
of any of the Collateral or other property of each such Grantor.
(e) All Accounts have been originated by each Grantor and all Inventory
has been acquired by each Grantor in the ordinary course of business. All
Inventory produced in the United States of America has been produced in
compliance with the Fair Labor Standards Act.
(f) Schedule 3 is a complete and correct list of all the issued and
outstanding stock, partnership interests, limited liability company membership
interests, or other equity interest of each Grantor and the record and
beneficial owners of such stock, partnership interests, membership interests or
other equity interests. Also set forth on Schedule 3 is each equity investment
of each Grantor that represents 50% or less of the equity of the entity in which
such investment was made.
(g) As of the Closing Date, each Grantor has no material Special
Collateral with a fair market value individually or in the aggregate in excess
of $500,000.
ARTICLE IV
COVENANTS
4.1 Further Assurances.
(a) Each Grantor will, from time to time and at each Grantor's expense,
promptly execute and deliver all further instruments and documents (including
the delivery of certificated securities and supplements to all schedules),
execute and file such financing or continuation
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statements, or amendments thereto, and such other instruments or notices, as may
be reasonably necessary or desirable, or as Administrative Agent may request, in
order to perfect and preserve the pledge, assignment, and security interest
granted or purported to be granted hereby, and take all further action, that may
be reasonably necessary or desirable, or that Administrative Agent may
reasonably request, in order to perfect and protect any pledge, assignment, or
security interest granted or purported to be granted hereby, and the priority
thereof, or to enable Administrative Agent to exercise and enforce
Administrative Agent's and the Secured Creditors' rights and remedies hereunder
with respect to any Collateral; provided, however, no Grantor shall be required
to take any such actions in respect of any Special Collateral other than the
filing of financing statements or continuation statements, except as provided in
Section 4.1(e).
(b) In addition to such other information as shall be specifically
provided for herein, each Grantor shall furnish to Administrative Agent such
other information with respect to the Collateral as Administrative Agent may
reasonably request.
(c) Each Grantor authorizes Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the authentication of any Grantor where
permitted by Law. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by Law. Each Grantor
ratifies its execution and delivery of, and the filing of, any financing
statement describing any of the Collateral which was filed prior to the date of
this Agreement.
(d) Each Grantor will not, and will not permit any Person to, revise,
modify, amend, or restate the articles of incorporation of any corporation the
stock or other interest in which is Pledged Stock or the partnership, joint
venture, or other organizational document of any partnership or joint venture
any interests in which are Pledged Partnership Interests or the articles of
organization or other organizational document of any limited liability company
any interests in which are Pledged LLC Interests in a manner that adversely
affects the security interest of the Secured Party therein except as permitted
by the Credit Agreement, or terminate, cancel, or dissolve any such Person
except as permitted by the Credit Agreement.
(e) If Grantors or any or some of them shall acquire any Special
Collateral with a value greater than $500,000 individually or in the aggregate,
such Grantor shall notify Administrative Agent and, at Administrative Agent's
request, promptly execute and deliver all further instruments and documents as
may be reasonably necessary or desirable, or as Administrative Agent may
request, in order to grant, control, perfect and preserve a pledge, assignment,
and security interest in such assets and take all further action, that may be
reasonably necessary or desirable, or that Administrative Agent may reasonably
request, in order to grant, perfect and protect the pledge, assignment, or
security interest, and the priority thereof, or to enable Administrative Agent
to exercise and enforce Administrative Agent's and the Secured Creditors' rights
and remedies hereunder with respect to such Special Collateral so that the value
of such Special Collateral not subject to a perfected Lien does not exceed
$500,000 at any time during the term hereof.
(f) To the extent information contained in any Schedules hereto may change
and such change would make the information contained in the Schedules materially
misleading, Grantors
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shall, within 30 days of each such change, provide to Administrative Agent such
additional written corrective or supplemental information as may be necessary to
make such Schedules accurate and complete as of such date.
4.2 Place of Perfection; Records; Collection of Accounts, Chattel Paper
and Instruments.
(a) No Grantor shall change the jurisdiction of its organization from the
jurisdiction specified in Schedule 1, Section (a), its type of entity from the
type of entity specified in Schedule 1, Section (a), or its name from the name
specified in Schedule 1, Section (a) without providing notice thereof at least
10 days prior to the effective date of such change. Unless prior notice of any
change is given to Administrative Agent, each Grantor shall keep its chief
executive office at the address specified in Schedule 2, Section (a), and the
office where it keeps its material records concerning the Accounts, and the
originals of all material Chattel Paper and Instruments, at the address
specified in Schedule 2, Section (b). Each Grantor will hold and preserve such
records and Chattel Paper and Instruments and will permit representatives of
Administrative Agent at any time during normal business hours to inspect and
make abstracts from and copies of such records and Chattel Paper and
Instruments.
(b) Except as otherwise provided in this Section 4.2(b), each Grantor
shall continue to collect, at its own expense, all amounts due or to become due
each Grantor under the Accounts, Chattel Paper, and Instruments. In connection
with such collections, each Grantor may take (and, at Administrative Agent's
direction, shall take) such action as each such Grantor or Administrative Agent
may deem necessary or advisable to enforce collection of the Accounts, Chattel
Paper, and Instruments; provided, however, that Administrative Agent shall have
the right, if an Event of Default exists and is continuing, without notice to
any Grantor, to notify the Account Debtors or obligors under any Accounts,
Chattel Paper, and Instruments of the assignment of such Accounts, Chattel
Paper, and Instruments to Administrative Agent and to direct such Account
Debtors or obligors to make payment of all amounts due or to become due to each
Grantor thereunder directly to Administrative Agent and, at the expense of each
Grantor, to enforce collection of any such Accounts, Chattel Paper, and
Instruments, and to adjust, settle or compromise the amount or payment thereof,
in the same manner and to the same extent as each Grantor might have done or as
Administrative Agent deems appropriate. If any Event of Default has occurred and
is continuing and upon notice to the Borrower and the applicable Grantor, all
amounts and proceeds (including Instruments) received by each Grantor in respect
of the Accounts, Chattel Paper, and Instruments shall be received in trust for
the benefit of Administrative Agent hereunder, shall be segregated from other
funds and property of each Grantor and shall be forthwith paid or delivered over
to Administrative Agent in the same form as so received (with any necessary
endorsement) to be held as cash collateral, thereafter to be applied as provided
in the Credit Agreement. Each Grantor shall not adjust, settle, or compromise
the amount or payment of any Account, Chattel Paper, or Instrument, release
wholly or partly any Account Debtor or obligor thereof, or allow any credit or
discount thereon, except in the ordinary course of business.
4.3 Deposit Accounts. Each Grantor shall provide prior written notice that
it intends to establish or maintain any (a) Deposit Account or similar bank
account, and, upon written request of Administrative Agent, each Grantor shall
execute and deliver to Administrative Agent
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assignments of such account in such form as Administrative Agent may reasonably
request, and cause the bank in which such account will be maintained, to deliver
to Administrative Agent acknowledgments of the assignment of such account in
form and substance satisfactory to Administrative Agent, and take all actions
necessary to establish in Administrative Agent control (as that term is defined
in the UCC) with respect to such Deposit Account. Upon reasonable written
request by Administrative Agent, each Grantor will take all actions necessary to
establish in Administrative Agent control (as that term is defined in the UCC)
with respect to each Deposit Account.
4.4 Equipment, Fixtures, and Inventory.
(a) Each Grantor shall keep its Equipment, Fixtures, and Inventory (other
than Inventory sold in the ordinary course of business) at such places in such
jurisdiction where all action required by Section 4.1 shall have been taken with
respect to the Equipment, Fixtures, and Inventory.
(b) Each Grantor shall cause its Equipment and Fixtures to be maintained
and preserved in the same condition, repair, and working order as when new,
ordinary wear and tear excepted, and shall forthwith, or in the case of any loss
or damage to any of the Equipment and Fixtures as quickly as practicable after
the occurrence thereof, make or cause to be made all repairs, replacements, and
other improvements in connection therewith which are necessary or desirable to
such end except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
(c) Each Grantor shall comply in all material respects with, and shall
cause its licensees and subcontractors to comply in all material respects with,
all requirements of the Fair Labor Standards Act.
4.5 Rights to Dividends and Distributions. With respect to any
certificates, bonds, or other Instruments or Securities constituting a part of
the Collateral, Administrative Agent shall have authority if an Event of Default
exists and is continuing, either to have the same registered in Administrative
Agent's name or in the name of a nominee, and, with or without such
registration, to demand of the issuer thereof, and to receive and receipt for,
any and all dividends (including any stock or similar dividend or distribution)
payable in respect thereof, whether they be ordinary or extraordinary. If any
Grantor shall become entitled to receive or shall receive any interest in or
certificate (including, without limitation, any interest in or certificate
representing a dividend or a distribution in connection with any
reclassification, increase, or reduction of capital, or issued in connection
with any reorganization), or any option or rights arising from or relating to
any of the Collateral, whether as an addition to, in substitution of, as a
conversion of, or in exchange for any of the Collateral, or otherwise, each
Grantor agrees to accept the same as Administrative Agent's agent and to hold
the same in trust on behalf of and for the benefit of Administrative Agent, and
to deliver the same immediately to Administrative Agent in the exact form
received, with appropriate undated stock or similar powers, duly executed in
blank, to be held by Administrative Agent, subject to the terms hereof, as
Collateral. Unless an Event of Default exists, each Grantor shall be entitled to
receive all cash dividends and distributions paid in respect of any of the
Collateral (subject to the restrictions of any other Loan Document).
Administrative Agent shall be entitled to all dividends and distributions, and
to any sums paid
14
upon or in respect of any Collateral, upon the liquidation, dissolution, or
reorganization of the issuer thereof which shall be paid to Administrative Agent
to be held by it as additional collateral security for and application to the
Obligations at the discretion of Administrative Agent. All dividends paid or
distributed in respect of the Collateral which are received by any Grantor in
violation of this Agreement shall, until paid or delivered to Administrative
Agent, be held by each Grantor in trust as additional Collateral for the
Obligations.
4.6 Right of Administrative Agent to Notify Issuers. If an Event of
Default exists and is continuing and at such other times as Administrative Agent
is entitled to receive dividends and other property in respect of or consisting
of any Collateral which is or represents an equity or ownership interest in any
Person ("Securities Collateral"), Administrative Agent may notify issuers of the
Securities Collateral to make payments of all dividends and distributions
directly to Administrative Agent and Administrative Agent may take control of
all proceeds of any Securities Collateral. Until Administrative Agent elects to
exercise such rights, if an Event of Default exists, each Grantor, as agent of
Administrative Agent, shall collect and segregate all dividends and other
amounts paid or distributed with respect to the Securities Collateral.
4.7 Insurance. Each Grantor shall, at its own expense, maintain insurance
in accordance with the terms set forth in Credit Agreement. All such policies of
insurance insuring the Equipment and Inventory shall be written for the benefit
of Administrative Agent for itself and the Secured Parties and each Grantor, as
their interests may appear, and shall provide for at least thirty days' prior
written notice of cancellation to Administrative Agent. Upon reasonable request
by Administrative Agent, each Grantor shall promptly furnish to Administrative
Agent evidence of such insurance in form and content satisfactory to
Administrative Agent. If any Grantor fails to perform or observe any applicable
covenants as to insurance, Administrative Agent may at its option obtain
insurance on only Lenders' interest in the Equipment and Inventory, any premium
thereby paid by Administrative Agent to become part of the Obligations, bear
interest prior to the existence of an Event of Default, at the then applicable
Base Rate, and during the existence of an Event of Default, at the Highest
Lawful Rate. If Administrative Agent maintains such substitute insurance, the
premium for such insurance shall be due on demand and payable by the applicable
Grantor to Administrative Agent. Each Grantor grants and appoints Administrative
Agent its attorney-in-fact to, if an Event of Default exists, endorse any check
or draft that may be payable to each such Grantor in order to collect any
payments in respect of insurance, including any refunds of unearned premiums in
connection with any cancellation, adjustment, or termination of any policy of
insurance. Any such sums collected by Administrative Agent shall be credited,
except to the extent applied to the purchase by Administrative Agent of similar
insurance, to any amounts then owing on the Obligations in accordance with the
Credit Agreement.
4.8 Transfers and Other Liens. Each Grantor shall not (a) sell, assign (by
operation of Law or otherwise) or otherwise dispose of, or grant any option with
respect to, any of the Collateral, except as permitted under the Credit
Agreement and the other Loan Documents, or (b) create or permit to exist any
Lien, option, or other charge or encumbrance upon or with respect to any of the
Collateral, except for the security interest under this Agreement (and except as
provided for in the Credit Agreement and Collateral Documents).
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4.9 Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints Administrative Agent Grantor's attorney-in-fact, with full
authority in the place and stead of each Grantor and in the name of each Grantor
or otherwise to take any action and to execute any instrument which
Administrative Agent may deem reasonably necessary or advisable to accomplish
the purposes of this Agreement, including, without limitation (provided that the
actions listed in each clause below may only be taken or exercised if an Event
of Default exists):
(a) to obtain and adjust insurance required to be paid to Administrative
Agent pursuant to Section 4.8;
(b) to ask, demand, collect, xxx for, recover, compromise, receive, and
give acquittance and receipts for moneys due and to become due under or in
connection with the Collateral;
(c) to receive, indorse, and collect any drafts or other Instruments,
Documents, and Chattel Paper, in connection therewith; and
(d) to file any claims or take any action or institute any proceedings
which Administrative Agent may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce compliance with the terms and
conditions of any Collateral or the rights of Administrative Agent with respect
to any of the Collateral. EACH GRANTOR HEREBY IRREVOCABLY GRANTS TO
ADMINISTRATIVE AGENT EACH SUCH GRANTOR'S PROXY (EXERCISABLE IF AN EVENT OF
DEFAULT EXISTS) TO VOTE ANY SECURITIES COLLATERAL AND APPOINTS ADMINISTRATIVE
AGENT EACH SUCH GRANTOR'S ATTORNEY-IN-FACT TO PERFORM ALL OBLIGATIONS OF GRANTOR
UNDER THIS AGREEMENT AND TO EXERCISE ALL OF ADMINISTRATIVE AGENT'S AND EACH
OTHER SECURED PARTY'S RIGHTS HEREUNDER. THE PROXY AND EACH POWER OF ATTORNEY
HEREIN GRANTED, AND EACH STOCK POWER AND SIMILAR POWER NOW OR HEREAFTER GRANTED
(INCLUDING ANY EVIDENCED BY A SEPARATE WRITING), ARE COUPLED WITH AN INTEREST
AND ARE IRREVOCABLE PRIOR TO FINAL PAYMENT IN FULL OF THE OBLIGATIONS.
ARTICLE V
RIGHTS AND POWERS OF SECURED PARTIES
5.1 Administrative Agent May Perform. If any Grantor fails to perform any
agreement contained herein and the Administrative Agent, in the exercise of its
reasonable business judgment, believes that such failure materially and
adversely affects the Collateral, its security interest or the priority or
perfection thereof, or its rights or remedies hereunder, Administrative Agent
may itself perform, or cause performance of, such agreement, and the reasonable
expenses of Administrative Agent incurred in connection therewith shall be
payable by each such Grantor under Section 5.6.
16
5.2 Administrative Agent's Duties. The powers conferred on Administrative
Agent hereunder are solely to protect Lenders' interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for moneys
actually received by Lenders hereunder, neither Administrative Agent nor any
other Lender shall have any duty as to any Collateral, as to ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders, or other matters relative to any Collateral, whether or not
Administrative Agent or any other Lender has or is deemed to have knowledge of
such matters, or as to the taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining to any reasonable care in
the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to that which
Administrative Agent accords its own property. Except as provided in this
Section 5.2, neither Administrative Agent nor any other Lender shall have any
duty or liability to protect or preserve any Collateral or to preserve rights
pertaining thereto. Nothing contained in this Agreement shall be construed as
requiring or obligating Administrative Agent or any other Lender, and neither
Administrative Agent nor any other Lender shall be required or obligated, to (a)
present or file any claim or notice or take any action, with respect to any
Collateral or in connection therewith or (b) notify any Grantor of any decline
in the value of any Collateral.
5.3 Remedies. If an Event of Default exists:
(a) Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it or any other Lender pursuant to any applicable Law, all the rights and
remedies of a secured party on default under the Uniform Commercial Code in
effect at that time (whether or not the Uniform Commercial Code applies to the
affected Collateral), and also may require each Grantor to, and each Grantor
will at its expense and upon request of Administrative Agent forthwith, assemble
all or part of the Collateral as directed by Administrative Agent and make it
available to Administrative Agent at a place to be designated by Administrative
Agent which is reasonably convenient to both parties at public or private sale,
at any of Administrative Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as Administrative Agent may deem
commercially reasonable. Each Grantor agrees that, to the extent notice of sale
shall be required by Law, ten days' notice to each Grantor of the time and place
of any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. Administrative Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) All cash proceeds received by Administrative Agent upon any sale of,
collection of, or other realization upon, all or any part of the Collateral
shall be applied as set forth in Section 8.03 of the Credit Agreement.
(c) All payments received by each Grantor under or in connection with any
Collateral shall be received in trust for the benefit of Administrative Agent,
shall be segregated from other funds of each such Grantor, and shall be
forthwith paid over to Administrative Agent in the same form as so received
(with any necessary endorsement).
17
(d) Because of the Securities Act of 1933, as amended ("Securities Act"),
and other Laws, including without limitation state "blue sky" Laws, or
contractual restrictions or agreements, there may be legal restrictions or
limitations affecting Administrative Agent in any attempts to dispose of the
Collateral and the enforcement of rights under this Agreement. For these
reasons, Administrative Agent is authorized by each Grantor, but not obligated,
if any Event of Default exists, to sell or otherwise dispose of any of the
Collateral at private sale, subject to an investment letter, or in any other
manner which will not require the Collateral, or any part thereof, to be
registered in accordance with the Securities Act, or any other Law.
Administrative Agent is also hereby authorized by each Grantor, but not
obligated, to take such actions, give such notices, obtain such consents, and do
such other things as Administrative Agent may deem required or appropriate under
the Securities Act or other securities Laws or other Laws or contractual
restrictions or agreements in the event of a sale or disposition of any
Collateral. Each Grantor understands that Administrative Agent may in its
discretion approach a restricted number of potential purchasers and that a sale
under such circumstances may yield a lower price for the Collateral than would
otherwise be obtainable if same were registered and/or sold in the open market.
No sale so made in good faith by Administrative Agent shall be deemed to be not
"commercially reasonable" because so made. Each Grantor agrees that if an Event
of Default exists, and Administrative Agent sells the Collateral or any portion
thereof at any private sale or sales, Administrative Agent shall have the right
to rely upon the advice and opinion of appraisers and other Persons, which
appraisers and other Persons are acceptable to Administrative Agent, as to the
best price reasonably obtainable upon such a private sale thereof. In the
absence of actual fraud, such reliance shall be prima facie evidence that
Administrative Agent and the other Secured Parties handled such matter in a
commercially reasonable manner under applicable Law.
(e) If Administrative Agent shall determine to exercise its right to sell
any or all of the Collateral, and if in the opinion of counsel for
Administrative Agent it is necessary, or if in the reasonable opinion of
Administrative Agent it is advisable, to have the Collateral or that portion
thereof to be sold, registered under the provisions of the Securities Act, each
Grantor will, to the fullest extent it has the capability to do so, cause the
issuers of the Collateral contemplated to be sold to execute and deliver, and
cause the directors and officers of each thereof to execute and deliver, all at
Grantors' expense, all such instruments and documents, and to do or cause to be
done all such other acts and things, as may be necessary or, in the opinion of
Administrative Agent, advisable to register the Collateral or that portion
thereof to be sold, under the provisions of the Securities Act and to cause the
registration statement relating thereto to become effective and to remain
effective for such period as Administrative Agent may deem appropriate to
facilitate the sale or other disposition of such Collateral from the date of the
first public offering of the Collateral or that portion thereof to be sold, and
to make all amendments thereto and/or to the related prospectus which, in the
opinion of Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act. Each Grantor shall use its best
efforts to cause each issuer of Collateral to comply with the provisions of the
securities or "blue sky" Laws of any jurisdiction which Administrative Agent
shall designate and to cause each Issuer to make available to its security
holders, as soon as practicable, an earnings statement which will satisfy the
provisions of the Securities Act and applicable "blue sky" Laws.
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(f) After notice to Grantor, Administrative Agent and such Persons as
Administrative Agent may reasonably designate shall have the right, at Grantor's
own cost and expense, to verify under reasonable procedures, the validity,
amount, quality, quantity, value, condition, and status of, or any other matter
relating to, the Collateral, including, in the case of Accounts or Collateral in
the possession of any third person, by contacting Account Debtors or the third
person possessing such Collateral for the purpose of making such a verification.
Administrative Agent shall have the absolute right to share any information it
gains from such inspection or verification with any Secured Party.
5.4 Appointment of Receiver or Trustee. In connection with the exercise of
Lenders' rights under this Agreement or any other Loan Document, Administrative
Agent may, if an Event of Default exists resulting in the acceleration of the
Obligations or following any Loan Party's failure to pay any of the Obligations
at maturity, obtain the appointment of a receiver or trustee to assume, upon
receipt of all necessary judicial or other Governmental Authority consents or
approvals, control of or ownership of any Permits. Such receiver or trustee
shall have all rights and powers provided to it by Law or by court order or
provided to Administrative Agent under this Agreement or any other Loan
Document. Upon the appointment of such trustee or receiver, each Grantor shall
cooperate, to the extent necessary or appropriate, in the expeditious
preparation, execution, and filing of an application to any Governmental
Authority or for consent to the transfer of control or assignment of each
Grantor's Permits to the receiver or trustee.
5.5 Further Approvals Required.
(a) In connection with the exercise by Administrative Agent of rights
under this Agreement that affects the disposition of or use of any Collateral,
it may be necessary to obtain the prior consent or approval of Governmental
Authorities and other Persons to a transfer or assignment of Collateral. In
connection with the exercise by Administrative Agent or any other Secured Party
of its rights relating to the disposition of or operation under any Permit, it
may be necessary to obtain the prior consent or approval of other Governmental
Authority, or other Persons to the exercise of rights with respect to the
Collateral. If an Event of Default exists, each Grantor shall execute, deliver,
and file, and hereby appoints (to the extent not prohibited by Applicable Law)
Administrative Agent as its attorney, to execute, deliver, and file on Grantor's
behalf and in Grantor's name, all applications, certificates, filings,
instruments, and other documents (including without limitation any application
for an assignment or transfer of control or ownership) that may be necessary or
appropriate, in Administrative Agent's opinion, to obtain such consents or
approvals. Each Grantor shall use its best efforts to obtain such consents or
approvals if a Default or Event of Default exists. Each Grantor acknowledges
that there is no adequate remedy at law for failure by it to comply with the
provisions of this Section 5.5(a) and that such failure would not be adequately
compensable in damages, and therefore agrees that this Section 5.5(a) may be
specifically enforced.
(b) Each Grantor shall, if an Event of Default exists, execute, deliver,
and file, and hereby appoints Administrative Agent as its attorney-in-fact, to,
if an Event of Default exists, execute, deliver, and file on Grantor's behalf
and in Grantor's name, all applications, certificates, filings, instruments, and
other documents (including without limitation any application for an assignment
or transfer of control or ownership) that may be reasonably necessary or
appropriate,
19
in Administrative Agent's opinion, to obtain such consents, waivers, or
approvals. Each Grantor shall use its best efforts to obtain the foregoing
consents, waivers, and approvals, including receipt of consents, waivers, and
approvals under applicable agreements prior to a Default or Event of Default.
Each Grantor acknowledges that there is no adequate remedy at Law for failure by
it to comply with the provisions of this Section 5.5(b) and that such failure
would not be adequately compensable in damages, and therefore agrees that this
Section 5.5(b) may be specifically enforced.
5.6 INDEMNITY AND EXPENSES
(a) EACH GRANTOR SHALL INDEMNIFY (WHICH SHALL BE PAYABLE FROM TIME TO TIME
ON DEMAND) SECURED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, AND
LIABILITIES (INCLUDING REASONABLE ATTORNEYS' FEES) GROWING OUT OF OR RESULTING
FROM THIS AGREEMENT (INCLUDING ENFORCEMENT OF THIS AGREEMENT), EXPRESSLY
INCLUDING SUCH CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF MERE NEGLIGENCE OF
ANY SECURED PARTY, EXCEPT CLAIMS, LOSSES, OR LIABILITIES RESULTING FROM ANY
SECURED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b) EACH GRANTOR WILL UPON DEMAND PAY TO EACH SECURED PARTY THE AMOUNT OF
ANY AND ALL REASONABLE EXPENSES, INCLUDING THE REASONABLE FEES AND EXPENSES OF
ITS COUNSEL AND OF ANY EXPERTS AND AGENTS, WHICH SUCH SECURED PARTY MAY INCUR IN
CONNECTION WITH (I) THE ADMINISTRATION OF THIS AGREEMENT, (II) THE CUSTODY,
PRESERVATION, USE OR OPERATION OF, OR THE SALE OF, COLLECTION FROM, OR OTHER
REALIZATION UPON, ANY OF THE COLLATERAL, (III) THE EXERCISE OR ENFORCEMENT OF
ANY OF THE RIGHTS OF ANY SECURED PARTY HEREUNDER, OR (IV) THE FAILURE BY GRANTOR
TO PERFORM OR OBSERVE ANY OF THE PROVISIONS HEREOF.
ARTICLE VI
MISCELLANEOUS
6.1 Maximum Liability. Anything in this Agreement to the contrary
notwithstanding, the obligations of each Grantor (other than Borrower) hereunder
shall be limited to a maximum aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable Law (collectively, the "Fraudulent
Transfer Laws"), in each case after giving effect to all other liabilities of
each Grantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of each Grantor
in respect of intercompany indebtedness to other Loan Parties or Affiliates of
other Loan Parties to the extent that such indebtedness would be discharged in
an amount equal to the amount paid or property conveyed by each Grantor under
the Loan Documents) and after giving effect as assets, subject to Section 6.2,
to the value (as determined under the applicable provisions of the Fraudulent
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Transfer Laws) of any rights to subrogation or contribution of each Grantor
pursuant to (a) Applicable Law or (b) any agreement providing for an equitable
allocation among each Grantor and other Loan Parties of obligations arising
under the Loan Documents.
6.2 Waiver of Subrogation. Each Grantor shall not assert, enforce, or
otherwise exercise (a) any right of subrogation to any of the rights or Liens of
any Secured Creditor or any other beneficiary against any other Loan Party or
any Collateral or other security, or (b) any right of recourse, reimbursement,
contribution, indemnification, or similar right against any other Loan Party on
all or any part of the Obligations or any other Loan Party, and each Grantor
hereby waives any and all of the foregoing rights and the benefit of, and any
right to participate in, and Collateral or other security given to or for the
benefit of any Secured Creditor or any other beneficiary to secure payment of
the Obligations. This Section 6.2 shall survive the termination of this
Agreement, and any satisfaction and discharge of each Grantor by virtue of any
payment, court order, or Law.
6.3 Cumulative Rights. All rights of Administrative Agent and each Secured
Creditor under the Loan Documents are cumulative of each other and of every
other right which Administrative Agent and each Secured Creditor may otherwise
have at Law or in equity or under any other agreement. The exercise of one or
more rights shall not prejudice or impair the concurrent or subsequent exercise
of other rights.
6.4 Amendments; Waivers. Any term, covenant, agreement, or condition of
this Agreement may be amended, and any right under this Agreement may be waived,
if, but only if, such amendment or waiver is in writing and is signed by
Administrative Agent and, in the case of an amendment, by each Grantor. Unless
otherwise specified in such waiver, a waiver of any right under this Agreement
shall be effective only in the specific instance and for the specific purpose
for which given. No election not to exercise, failure to exercise or delay in
exercising any right, nor any course of dealing or performance, shall operate as
a waiver of any right of any Lender under this Agreement or Applicable Law, nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right of any Secured
Creditor under this Agreement or Applicable Law.
6.5 Continuing Security Interest. This Agreement creates a continuing
security interest in the Collateral and shall (a) remain in full force and
effect until the later of (i) the Obligations are fully, indefeasibly,
absolutely and unconditionally paid (other than indemnity obligations that
survive the termination of this Agreement for which no notice of a claim has
been received by Grantor) and (ii) the expiration of the obligation of all
Secured Creditors to extend credit to each Grantor, (b) be binding upon each
Grantor, its successors and assigns, and (c) inure to the benefit of, and be
enforceable by, Administrative Agent and its successors, transferees and
assigns. At such time as the Obligations are fully, indefeasibly, absolutely and
unconditionally paid (other than indemnity obligations that survive the
termination of this Agreement for which no notice of a claim has been received
by Grantor) and all obligations of all Secured Creditors to extend credit to
each Grantor have expired, Administrative Agent will, at Grantor's expense,
execute and deliver to each Grantor such documents as each such Grantor shall
reasonably request to evidence such payment. Each Grantor agrees that to the
extent that Administrative Agent or any Secured Creditor receives any payment or
benefit and such payment or benefit, or any part thereof, is subsequently
invalidated, declared to be fraudulent or
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preferential, set aside or is required to be repaid to a trustee, receiver, or
any other Person under any Debtor Relief Law, common law or equitable cause,
then to the extent of such payment or benefit, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or benefit had not been made and, further, any such repayment
by Administrative Agent or any Secured Creditor, to the extent that
Administrative Agent or any Secured Creditor did not directly receive a
corresponding cash payment, shall be added to and be additional Obligations
payable upon demand by Administrative Agent or any Secured Creditor and secured
hereby, and, if the lien and security interest hereof shall have been released,
such lien and security interest shall be reinstated with the same effect and
priority as on the date of execution hereof all as if no release of such lien or
security interest had ever occurred.
6.6 GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND
SERVICE OF PROCESS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
the LAW OF THE STATE OF TEXAS applicable to agreements made and to be performed
entirely within such State; PROVIDED THAT THE ADMINISTRATIVE Agent AND EACH
SECURED CREDITOR SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) The parties hereto agree that Chapter 346 (other than Section 346.004)
of the Texas Finance Code (which regulates certain revolving credit accounts and
revolving tri-party accounts) shall not apply to the Loans or the other
Obligations.
(c) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS SITTING
IN DALLAS COUNTY, TEXAS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF
TEXAS (DALLAS DIVISION), AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
GRANTOR, THE ADMINISTRATIVE Agent AND EACH SECURED CREDITOR CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. THE GRANTOR, THE ADMINISTRATIVE Agent AND EACH SECURED CREDITOR
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE GRANTOR, THE
ADMINISTRATIVE Agent AND EACH SECURED CREDITOR WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
(d) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO ANY LOAN
22
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
6.7 Administrative Agent's Right to Use Agents. Administrative Agent may
exercise its rights under this Agreement through an agent or other designee.
6.8 No Interference, Compensation or Expense. Administrative Agent may
exercise its rights under this Agreement (a) without resistance or interference
by any Grantor and (b) without payment of any rent, license fee, or compensation
of any kind to any Grantor.
6.9 Waivers of Rights Inhibiting Enforcement. Each Grantor waives (a) any
claim that, as to any part of the Collateral, a public sale, should
Administrative Agent elect so to proceed, is, in and of itself, not a
commercially reasonable method of sale for such Collateral, (b) except as
otherwise provided in this Agreement, TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW, NOTICE OR JUDICIAL HEARING IN CONNECTION WITH ADMINISTRATIVE
AGENT'S DISPOSITION OF ANY OF THE COLLATERAL INCLUDING ANY AND ALL PRIOR NOTICE
AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT EACH
GRANTOR WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED
STATES OR OF ANY STATE, AND ALL OTHER REQUIREMENTS AS TO THE TIME, PLACE AND
TERMS OF SALE OR OTHER REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF SECURED
PARTIES' RIGHTS HEREUNDER and (c) all rights of redemption, appraisement or
valuation.
6.10 Obligations Not Affected. To the fullest extent not prohibited by
Applicable Law, the obligations of each Grantor under this Agreement shall
remain in full force and effect without regard to, and shall not be impaired or
affected by:
(a) any amendment, addition, or supplement to, or restatement of any Loan
Document or any instrument delivered in connection therewith or any assignment
or transfer thereof;
(b) any exercise, non-exercise, or waiver by Administrative Agent or any
Secured Creditor of any right, remedy, power, or privilege under or in respect
of, or any release of any guaranty, any collateral, or the Collateral or any
part thereof provided pursuant to, this Agreement or any Loan Document;
(c) any waiver, consent, extension, indulgence, or other action or
inaction in respect of this Agreement or any Loan Document or any assignment or
transfer of any thereof;
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(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation, or the like of any Loan Party or any other Person,
whether or not each Grantor shall have notice or knowledge of any of the
foregoing; or
(e) any other event which may give a Grantor or any other Loan Party a
defense to, or a discharge of, any of its obligations under any Loan Document.
6.11 Notices and Deliveries.
(a) Manner of Delivery. All notices, communications, and materials to be
given or delivered pursuant to this Agreement shall, except in those cases where
giving notice by telephone is expressly permitted, be given or delivered in
writing. All written notices, communications, and materials shall be sent by
registered or certified mail, postage prepaid, return receipt requested, by
telecopier, or delivered by hand. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent
Administrative Agent or the Grantors have acted in reliance on such telephonic
notice.
(b) Addresses. All notices, communications, and materials to be given or
delivered pursuant to this Agreement shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) if to Grantors at:
c/o United States Lime & Minerals, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: M. Xxxxxxx Xxxxx
(ii) if to Administrative Agent, to it at:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxx Xxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx III
or at such other address, telecopier or telephone number or to the attention of
such other individual or department as the party to which such information
pertains may hereafter specify in a notice to the other specifically captioned
"Notice of Change of Address".
(c) Effectiveness. Each notice, communication and any material to be given
or delivered to Administrative Agent or each Grantor pursuant to this Agreement
shall be effective or deemed given or delivered upon the earlier to occur of (i)
actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or
by courier, when signed for by or on behalf of the
24
relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail when delivered. In no event shall a voicemail message be effective as a
notice, communication or confirmation hereunder.
(d) Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, this Agreement shall be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Agreement a legal, valid, and enforceable
provision as similar in terms to the illegal, invalid, or unenforceable
provision as may be possible.
(e) Successors and Assigns. All of the provisions of this Agreement shall
be binding and inure to the benefit of the parties hereto and their respective
successors and assigns (including, as to each Grantor, all Persons who may
become bound as a debtor or a new debtor to this Agreement); provided, each
Grantor may not assign any of its rights or obligations under this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
6.12 Arbitration.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration in accordance with the terms of this Agreement.
A "Dispute" shall mean any action, dispute, claim or controversy of any kind,
whether in contract or tort, statutory or common law, legal or equitable, now
existing or hereafter arising under or in connection with, or in any way
pertaining to, this Agreement, or any past, present or future extensions of
credit and other activities, transactions or obligations of any kind related
directly or indirectly to this Agreement, including without limitation, any of
the foregoing arising in connection with the exercise of any self-help,
ancillary or other remedies pursuant to this Agreement. Any party may by summary
proceedings bring an action in court to compel arbitration of a Dispute. Any
party who fails or refuses to submit to arbitration following a lawful demand by
any other party shall bear all costs and expenses incurred by such other party
in compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered by the
American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in this Agreement. The
arbitration shall be conducted at a location in Dallas, Texas selected by the
AAA or other administrator. If there is any inconsistency between the terms
hereof and any such rules, the terms and procedures set forth herein shall
control. All statutes of limitation applicable to any
25
Dispute shall apply to any arbitration proceeding. All discovery activities
shall be expressly limited to matters directly relevant to the Dispute being
arbitrated. Judgment upon any award rendered in an arbitration may be entered in
any court having jurisdiction; provided however, that nothing contained herein
shall be deemed to be a waiver by any party that is a bank of the protections
afforded to it under 12 U.S.C. Section 91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers Awards. Arbitrators must be
active members of the State Bar of Texas with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the state of Texas, (ii) may grant any
remedy or relief that a court of the state of Texas could order or grant within
the scope hereof and such ancillary relief as is necessary to make effective any
award, and (iii) shall have the power to award recovery of all costs and fees,
to impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Texas Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any
Dispute in which the amount in controversy exceeds $5,000,000 shall be decided
by majority vote of a panel of three arbitrators; provided however, that all
three arbitrators must actively participate in all hearings and deliberations.
(e) Judicial Review. Notwithstanding anything herein to the contrary, in
any arbitration in which the amount in controversy exceeds $25,000,000, the
arbitrators shall be required to make specific, written findings of fact and
conclusions of law. In such arbitrations (i) the arbitrators shall not have the
power to make any award which is not supported by substantial evidence or which
is based on legal error, (ii) an award shall not be binding upon the parties
unless the findings of fact are supported by substantial evidence and the
conclusions of law are not erroneous under the substantive law of the state of
Texas, and (iii) the parties shall have in addition to the grounds referred to
in the Federal Arbitration Act for vacating, modifying or correcting an award
the right to judicial review of (A) whether the findings of fact rendered by the
arbitrators are supported by substantial evidence, and (B) whether the
conclusions of law are erroneous under the substantive law of the state of
Texas. Judgment confirming an award in such a proceeding may be entered only if
a court determines the award is supported by substantial evidence and not based
on legal error under the substantive law of the state of Texas.
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceedings within 180 days
26
of the filing of the Dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or results thereof,
except for disclosures of information by a party required in the ordinary course
of its business, by applicable law or regulations, or to the extent necessary to
exercise any judicial review rights set forth herein. If more than one agreement
for arbitration by or between the parties potentially applies to a Dispute, the
arbitration provisions most directly related to this Agreement or the subject
matter of the Dispute shall control. This arbitration provision shall survive
termination, amendment or expiration of this Agreement or any relationship
between the parties.
6.13 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER
LOAN PAPERS, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective duly authorized officers as of the
date first above written.
UNITED STATES LIME & MINERALS, INC.
By: _________________________________________
M. Xxxxxxx Xxxxx
Vice President, Chief Financial Officer
and Secretary
ARKANSAS LIME COMPANY
By: _________________________________________
M. Xxxxxxx Xxxxx
Vice President, Chief Financial Officer
and Secretary
COLORADO LIME COMPANY
By: _________________________________________
M. Xxxxxxx Xxxxx
Vice President, Chief Financial Officer
and Secretary
TEXAS LIME COMPANY
By: _________________________________________
M. Xxxxxxx Xxxxx
Vice President, Chief Financial Officer
and Secretary
28
U.S. LIME COMPANY - HOUSTON
By: _________________________________________
M. Xxxxxxx Xxxxx
Vice President, Chief Financial Officer
and Secretary
29
