EXHIBIT 10
FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Amended and Restated Loan and Security Agreement
(this "Fifth Amendment") dated as of May 31, 2002 by and among United States
Lime & Minerals, Inc., a Texas corporation ("U.S. Lime"), Texas Lime Company, a
Texas corporation ("TLC"), and Arkansas Lime Company, an Arkansas corporation
("ALC," and together with U.S. Lime and TLC, collectively referred to as the
"Borrowers" and individually as a "Borrower"), and Wachovia Bank, National
Association, formerly known as First Union National Bank, as successor to
CoreStates Bank, N.A. ("Bank").
BACKGROUND
A. Borrowers and Bank are parties to an Amended and Restated Loan and
Security Agreement dated December 30, 1997, as amended by (i) the First
Amendment to Amended and Restated Loan and Security Agreement, (ii) the Second
Amendment to Amended and Restated Loan and Security Agreement, (iii) a letter
agreement dated as of April 21, 2000, (iv) the Third Amendment to Amended and
Restated Loan and Security Agreement dated as of April 26, 2001, and (v) the
Fourth Amendment to Amended and Restated Loan and Security Agreement dated as of
December 31, 2001 (as the same has been amended and may hereafter amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Loan Agreement"), pursuant to which Bank continued and restated certain
credit facilities for the benefit of Borrowers under the terms and conditions
set forth therein. All initially capitalized terms used in this Fifth Amendment,
unless otherwise specifically defined herein, shall have the meanings ascribed
to them in the Loan Agreement.
B. Bank and Borrowers desire to further amend the Loan Agreement to extend
the maturity date of the Revolving Credit according to the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Ratification. This Fifth Amendment is a modification of the Loan
Agreement pursuant to Section 9.2 thereof. Except as expressly set forth herein,
or in any amendment to any of the documents referred to herein, Borrowers and
Bank acknowledge and agree that each and every term, condition and provision of
the Loan Agreement is hereby ratified and confirmed in full.
2. Revolving Credit Termination Date Extended. The defined term
"Revolving Credit Termination Date" is hereby amended and restated in its
entirety as of the date hereof as follows:
"Revolving Credit Termination Date" means January 31, 2003, or such
later date as Borrowers and Bank may agree in writing.
3. Outstanding Indebtedness. Borrowers hereby unconditionally
acknowledge that, as of the date hereof, the outstanding principal balance under
the Revolving Credit is $4,075,000, and the aggregate face amount of outstanding
undrawn Letters of Credit is $133,000. Borrowers acknowledge and agree that the
foregoing balance of the Revolving Credit (including the amount of all draws
under outstanding Letters of Credit), together with interest, which shall accrue
from the date hereof at the rates set forth in the Loan Agreement, is owing to
Bank without claim, counterclaim, recoupment, defense or setoff of any kind.
4. Representations and Warranties. To induce Bank to enter into this
Fifth Amendment, Borrowers jointly and severally represent and warrant to Bank
as follows:
4.1 After giving effect to the modifications contained herein, all
representations, warranties and covenants made by Borrowers to Bank in the Loan
Agreement (except those relating to a specific date) are true and correct in all
material respects as of the date hereof, with the same force and effect as
though made as of the date hereof;
4.2 No Event of Default or Unmatured Event of Default has occurred
and is continuing under the Loan Agreement as of the date hereof;
4.3 Each Borrower is a corporation validly subsisting under the laws
of the state of its incorporation; the execution, delivery and performance of
this Fifth Amendment and any other documents and instruments executed and
delivered to Bank in connection herewith (i) are within each Borrower's
corporate powers, (ii) have been duly authorized by each Borrower's Board of
Directors, (iii) do not contravene any provision of law or any indenture,
agreement or undertaking to which any Borrower is a party or is otherwise bound,
any Borrower's Certificate of Incorporation or bylaws, or any resolution of the
Board of Directors of any Borrower, and (iv) require no consent or approval of
any governmental authority or any third party; and
4.4 This Fifth Amendment and any other documents and instruments
executed by a Borrower and delivered to Bank in connection herewith have been
validly executed and are enforceable against the Borrower or Borrowers party
thereto in accordance with their respective terms.
Any failure of any of the representations and warranties made by Borrowers in
this Fifth Amendment to be true and correct in all material respects when made
shall constitute an Event of Default under the Loan Agreement.
5. Conditions Precedent. The effectiveness of this Fifth Amendment, and
the performance by Bank of its obligations described herein, are subject to the
conditions precedent that
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Bank shall have received, in form and substance satisfactory to Bank:
5.1 resolutions of the Boards of Directors of each Borrower
authorizing the execution, delivery and performance of this Fifth Amendment and
the other documents and instruments executed and delivered to Bank in connection
herewith, certified by such Borrower's Secretary that the same are true and
complete copies of the originals thereof and remain in full force and effect,
not having been modified or rescinded;
5.2 a completed and executed Borrowing Base Certificate for the month
ended April 30, 2002; and
5.3 an amendment fee payable to Bank equal to $3,250.
6. Miscellaneous.
6.1 Entire Agreement. The Loan Agreement, as amended by this Fifth
Amendment, and the other Loan Documents, embody the entire agreement and
understanding between Bank and Borrowers. The Loan Agreement, together with this
Fifth Amendment, and all documents executed and delivered in connection
herewith, supersede all prior agreements and understandings relating to subject
matter hereof. This Fifth Amendment together with the Loan Agreement, and the
documents executed and delivered in connection herewith and therewith shall be
construed as one agreement, and in the event of any inconsistency, the
provisions of any promissory note evidencing a portion of the Indebtedness shall
control over the provisions of this Fifth Amendment.
6.2 Counterparts. This Fifth Amendment may be executed in any number
of counterparts and by different parties on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same agreement. This Fifth Amendment shall be effective upon the execution and
delivery of a counterpart hereof by each of the parties hereto.
6.3 Captions. The captions or headings in this Fifth Amendment are
for convenience of reference only and in no way define, limit, or describe the
scope or intent of any provision of this Fifth Amendment.
6.4 Successors and Assigns; Governing Law. This Fifth Amendment shall
be binding upon and inure to the benefit of the respective parties hereto and
their successors and assigns and shall be governed by, and construed and
enforced in accordance with, the internal laws of the Commonwealth of
Pennsylvania without regard to its principles of conflicts of laws.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment
as of the day and year first written above.
BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
f/k/a First Union National Bank
(successor to CoreStates Bank, N.A.)
By:
---------------------------------
Alex A. Diffey, Jr.,
Senior Vice President
BORROWERS:
UNITED STATES LIME & MINERALS, INC.
Attest:
By: By:
-------------------- ---------------------------------
Timothy W. Byrne, President and
Chief Executive Officer
TEXAS LIME COMPANY
By: By:
-------------------- ---------------------------------
Timothy W. Byrne, President
ARKANSAS LIME COMPANY
By: By:
-------------------- ---------------------------------
Timothy W. Byrne, President
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