FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (the “Amendment”), dated as of June 1, 2010,
is among UNITED STATES LIME & MINERALS, INC., a Texas corporation (the “Borrower”), the
financial institutions and other lenders listed on the signature pages hereof (such financial
institutions and lenders, together with their respective successors and assigns, are referred to
hereinafter each individually as a “Lender” and collectively as “Lenders”), and
XXXXX FARGO BANK, N.A., as administrative agent for the Lenders (the “Administrative
Agent”).
RECITALS:
A. The Borrower, certain of the Lenders and the Administrative Agent entered into that certain
Credit Agreement dated as of August 25, 2004, as amended by First Amendment to Credit Agreement
dated as of August 31, 2005, by Second Amendment to Credit Agreement dated as of October 19, 2005,
and by the Third Amendment to Credit Agreement dated as of March 31, 2007 (said Credit Agreement as
amended, extended, renewed or restated from time to time, the “Agreement”).
B. The Borrower has requested certain amendments to the Agreement to, among other things, (a)
extend the Revolving Maturity Date and (b) modify certain covenants.
C. The Lenders, the Administrative Agent and the Swing Line Lender hereby agree to amend the
Agreement on and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Capitalized terms used in this Amendment, to the extent not
otherwise defined herein, shall have the same meanings as in the Agreement as amended hereby, and
all references to “Sections,” “clauses,” “Articles,” “Exhibits,” and “Schedules” are references to
the Agreement’s sections, clauses, articles, exhibits and schedules.
ARTICLE II
Amendment
2.1 Amendments to Section 1.01. Section 1.01 is amended as follows:
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 1
(a) The following definitions are added to Section 1.01 in appropriate alphabetical
order:
“Fourth Amendment” means the Fourth Amendment to Credit Agreement dated as of
June 1, 2010.
“Fourth Amendment Closing Date” means June 1, 2010.
(b) The pricing grid found in the definition of “Applicable Rate” is amended
and restated in its entirety to read as follows:
| Revolving | ||||||||||||||||
| Commitment | ||||||||||||||||
| Fee and | ||||||||||||||||
| Multiple | LIBOR for | |||||||||||||||
| Pricing | Advance Term | Loans and | Base Rate | |||||||||||||
| Level | Cash Flow Leverage Ratio | Commitment Fee | Letters of Credit | for Loans | ||||||||||||
| I | Less than 1.50 to 1.00 |
0.250 | % | 1.750 | % | 0.000 | % | |||||||||
| II | Greater than or equal to 1.50 to
1.00 but less than 2.00 to 1.00 |
0.250 | % | 2.000 | % | 0.250 | % | |||||||||
| III | Greater than or equal to 2.00 to
1.00 but less than 2.50 to 1.00 |
0.300 | % | 2.250 | % | 0.500 | % | |||||||||
| IV | Greater than or equal to 2.50 to
1.00 but less than 3.00 to 1.00 |
0.300 | % | 2.500 | % | 0.750 | % | |||||||||
| V | Greater than or equal to 3.00 to 1.00 |
0.400 | % | 2.750 | % | 1.000 | % | |||||||||
(c) Clause (b) of the definition of “Cash Flow Leverage Ratio” is amended and
restated in its entirety to read as follows:
| (b) | Consolidated EBITDA plus, in a manner
as mutually agreed-to in writing by the Borrower and the Administrative
Agent, pro-forma EBITDA from any acquired businesses for the period of
four consecutive Fiscal Quarters ending on such date. |
(d) The definition of “Excess Cash Flow” is amended by deleting therefrom the
number “5,000,000” and inserting in lieu thereof the number “7,500,000”.
(e) Clause (b) of the definition of “Fixed Charge Coverage Ratio” is amended
and restated in its entirety to read as follows:
| (b) | the sum of (i) Consolidated Interest Charges
for the period of four Fiscal Quarters ended on such date of
determination, (ii) scheduled principal payments on Consolidated Senior
Funded Indebtedness (including Attributable Indebtedness but excluding
principal payments due and payable on the Revolving Maturity Date or
the Term Maturity Date), and (iii) any dividends during the period of
four Fiscal Quarters following such date of determination. |
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 2
(f) The definition of “Permitted Acquisitions” is amended and restated in its
entirety to read as follows:
“Permitted Acquisition” means the acquisition of all of the Equity Interests or
(in one transaction or a series of transactions) the assets of another Person that
constitute a business unit, provided (i) there is at least $5,000,000 available under the
Revolving Credit Commitment after giving effect to such Investment, (ii) immediately before
and after giving effect to such proposed acquisition, no Default or Event of Default exists
or would exist after giving effect to such Investment, (iii) if such acquisition results in
a Domestic Subsidiary, (A) such Subsidiary shall execute a Guaranty, a Security Agreement,
and if applicable, Mortgages, together with any related collateral documents reasonably
required by the Administrative Agent, (B) 100% of such Subsidiary’s Equity Interests shall
be pledged to secure the Obligations and (C) the Administrative Agent, on behalf of the
Lenders, shall have received such board resolutions, officer’s certificates, opinions of
counsel and Organization Documents with respect to such Subsidiary as the Administrative
Agent shall reasonably request in connection with the actions described in clauses (A) and
(B) above, and (iv) if such acquisition results in a Foreign Subsidiary, (A) 65% of such
Subsidiary’s Equity Interests shall be pledged to secure the Obligations and (B) the
Administrative Agent, on behalf of the Lenders, shall have received such board resolutions,
officer’s certificates, opinions of counsel and Organization Documents with respect to such
Subsidiary as the Administrative Agent shall reasonably request in connection with the
actions described in clause (A) above.
(g) The definition of “Revolving Maturity Date” is amended by deleting
therefrom the date “April 2, 2012” and inserting in lieu thereof the date “June 1, 2015”.
2.2 Amendment to Section 7.07. Clauses (c) and (d) of Section 7.07 are
amended and restated in their entirety to read as follows:
| (c) | the Borrower and each Subsidiary may purchase,
redeem or otherwise acquire shares of its common stock or warrants or
options to acquire any such shares so long as pro forma leverage is
less than 3.00 to 1.00 and no Default or Event of Default exists or
would exist after giving effect to such stock repurchase; and |
| (d) | the Borrower may declare or pay any dividends
or make any other payment or distribution on account of its capital
stock during any Fiscal Year so long as there is pro forma compliance
with the Fixed Charge Coverage Ratio and no Default or Event of Default
exists or would exist after giving effect to such dividends, payment or
distribution. |
2.3 Amendment to Section 7.11. Section 7.11 is deleted in its entirety and is
replaced by the following provision: “Section 7.11 [Reserved]”.
2.4 Amendment to Section 7.14. Clause (b) of Section 7.14 is amended by
deleting the existing table therefrom and substituting therefor the following table:
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 3
| Maximum Cash Flow | ||||
| Fiscal Quarters Ending | Leverage Ratio | |||
Fourth Amendment Closing
Date and each Fiscal Quarter and thereafter |
3.25 to 1.00 | |||
ARTICLE III
Conditions Precedent
3.1 Conditions. The effectiveness of this Amendment is subject to satisfaction of the
following conditions precedent:
(a) The Administrative Agent shall have received executed counterparts of this
Amendment from each party hereto.
(b) The representations and warranties contained herein and in all other Loan
Documents, as amended hereby, other than those that relate to a specific date and were true
and correct on such date, shall be true and correct as of the date hereof as if made on the
date hereof.
(c) No Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received executed counterparts of a Deed of
Trust from U.S. Lime O & G Partners, LP and each other party thereto, as applicable.
(e) The Administrative Agent shall have received executed counterparts of a Guaranty
Supplement and a Security Agreement Supplement from each Subsidiary of the Borrower that has
not previously executed and delivered the same, together with a certified copy from each
such Subsidiary of resolutions authorizing the execution and delivery such supplements.
(f) The Administrative Agent shall have received a certified resolution of the Board of
Directors of the Borrower authorizing the execution, delivery and performance of this
Amendment.
(g) The Administrative Agent shall have received a certified resolution of the General
Partner of U.S. Lime O & G Partners, LP authorizing the execution, delivery and performance
of the documents required by this Amendment.
(h) The Administrative Agent shall have received the fees provided for in the Fee
Letter.
(i) The Administrative Agent shall have received, in form and substance satisfactory to
the Administrative Agent and its counsel, such other documents, opinions, certificates and
instruments as the Administrative Agent shall reasonably require.
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 4
ARTICLE IV
Ratifications, Representations and Warranties
4.1 Ratifications. The terms and provisions set forth in this Amendment shall modify
and supersede all inconsistent terms and provisions set forth in the Agreement and except as
expressly modified and superseded by this Amendment, the terms and provisions of the Agreement are
ratified and confirmed and shall continue in full force and effect. The Borrower, the Lenders and
the Administrative Agent agree that the Agreement as amended hereby shall continue to be legal,
valid, binding and enforceable in accordance with its terms.
4.2 Representations and Warranties. The Borrower hereby represents and warrants to
the Administrative Agent and the Lenders that (i) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in connection herewith
have been authorized by all requisite corporate action on the part of the Borrower and will not
violate the articles of incorporation or bylaws of the Borrower, (ii) the representations and
warranties contained in the Agreement, as amended hereby, and any other Loan Document are true and
correct on and as of the date hereof as though made on and as of the date hereof (excluding,
however, representations and warranties that relate to a specific date and were true and correct on
such date), (iii) no Default or Event of Default has occurred and is continuing, and (iv) the
Borrower is in full compliance with all covenants and agreements contained in the Agreement as
amended hereby.
ARTICLE V
Miscellaneous
5.1 Survival of Representations and Warranties. All representations and warranties
made in this Amendment or any other Loan Document including any Loan Document furnished in
connection with this Amendment shall survive the execution and delivery of this Amendment and the
other Loan Documents, and no investigation by the Agent or the Lenders or any closing shall affect
the representations and warranties or the right of the Agent and the Lenders to rely upon them.
5.2 Reference to Agreement. Each of the Loan Documents, including the Agreement and
any and all other agreements, documents, or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Agreement as amended hereby, are
hereby amended so that any reference in such Loan Documents to the Agreement shall mean a reference
to the Agreement as amended hereby.
5.3 Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to be invalid or
unenforceable.
5.4 Successors and Assigns. This Amendment is binding upon and shall inure to the
benefit of each Lender, the Administrative Agent and the Borrower and their respective
successors and assigns, except the Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative Agent and each
Lender.
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 5
5.5 Effect of Waiver. No consent or waiver, express or implied, by the Administrative
Agent or any Bank to or for any breach of or deviation from any covenant, condition or duty by the
Borrower shall be deemed a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
5.6 Headings. The headings, captions, and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
5.7 Costs, Expenses and Taxes. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Amendment and the other instruments and documents to be delivered hereunder
(including the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent
with respect thereto).
5.8 Guarantor’s Acknowledgment. By signing below, each Guarantor (a) acknowledges,
consents and agrees to the execution, delivery and performance by the Borrower of this Amendment,
(b) acknowledges and agrees that its obligations in respect of its Guaranty are not released,
diminished, waived, modified, impaired or affected in any manner by this Amendment or any of the
provisions contemplated herein, (c) ratifies and confirms its obligations under its Guaranty, and
(d) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims
to, its Guaranty.
5.9 Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when taken together shall
constitute but one and the same instrument. For purposes of this Amendment, a counterpart hereof
(or signature page thereto) signed and transmitted by any Person party hereto to the Administrative
Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be treated as an
original. The signature of such Person thereon, for purposes hereof, is to be considered as an
original signature, and the counterpart (or signature page thereto) so transmitted is to be
considered to have the same binding effect as an original signature on an original document.
5.10 Governing Law; Binding Effect. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas applicable to agreements made and to be performed
entirely within such state, provided that each party shall retain all rights arising under federal
law, and shall be binding upon the parties hereto and their respective successors and assigns.
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 6
5.11 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
[Remainder of Page Intentionally Left Blank. Signature Pages Follow.]
FOURTH AMENDMENT TO CREDIT AGREEMENT – Page 7
Executed as of the date first written above.
| BORROWER: UNITED STATES LIME & MINERALS, INC. |
||||
| By: | ||||
| M. Xxxxxxx Xxxxx | ||||
| Vice President and Chief Financial Officer | ||||
| XXXXX FARGO BANK, N.A., as Administrative Agent and a Lender |
||||
| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| Vice President | ||||
FOURTH AMENDMENT TO CREDIT AGREEMENT – Signature Page
ACKNOWLEDGED AND AGREED TO:
| ARKANSAS LIME COMPANY |
||||
| By: | ||||
| M. Xxxxxxx Xxxxx | ||||
| Vice President and Chief Financial Officer | ||||
| COLORADO LIME COMPANY |
||||
| By: | ||||
| M. Xxxxxxx Xxxxx | ||||
| Vice President and Chief Financial Officer | ||||
| TEXAS LIME COMPANY |
||||
| By: | ||||
| M. Xxxxxxx Xxxxx | ||||
| Vice President and Chief Financial Officer | ||||
| U.S. LIME COMPANY (formerly named U.S. LIME COMPANY — HOUSTON) |
||||
| By: | ||||
| M. Xxxxxxx Xxxxx | ||||
| Vice President and Chief Financial Officer | ||||
FOURTH AMENDMENT TO CREDIT AGREEMENT – Signature Page
