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Exhibit 10(z)
AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Second
Amendment"), dated this 28th day of April, 1995 by and between UNITED STATES
LIME & MINERALS, INC. (formerly known as Scottish Heritable, Inc.), a Texas
corporation ("USL"), CORSON LIME COMPANY, a Pennsylvania corporation ("CLC"),
TEXAS LIME COMPANY, a Texas corporation ("TLC"), ARKANSAS LIME COMPANY, an
Arkansas corporation ("ALC", and together with USL, CLC, and TLC, collectively
referred to as the "Borrowers") and CORESTATES BANK, N.A., a national banking
association ("Bank").
BACKGROUND
A. Borrowers and Bank entered into a Loan and Security
Agreement dated October 20, 1993, since amended by Amendment No. 1 to Loan and
Security Agreement dated as of December 23, 1994 (collectively, the "Loan
Agreement"), pursuant to which Bank made available to Borrowers certain credit
facilities specifically described in the Loan Agreement. All initially
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Loan Agreement unless the context clearly requires to the
contrary.
B. Borrower has requested that Bank further amend the
terms of the Loan Agreement to (i) increase the annual limit on Borrowers'
Capital Expenditures, and (ii) permit USL to pay a dividend of up to 25% of its
annual Net Income to the holders of its common stock. The Bank has agreed to
such changes subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants set forth herein, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Ratification of Loan Documents. This Second Amendment
is a supplement to and a modification of the Loan Agreement pursuant to Section
9.2 thereof. To the extent not modified hereby, each and every term, condition,
covenant, representation, warranty, and each and all of the other provisions
set forth in the Loan Agreement, are hereby ratified and confirmed in full.
2. Minimum Net Worth. The first sentence of Section
6.1.13.1 of the Loan Agreement is hereby amended and restated as follows:
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Maintain at all times a consolidated Net Worth of not less
than an amount which (i) during the Fiscal Year of the
Borrowers ending December 31, 1993 shall be $11,000,000, (ii)
during the Fiscal Year of the Borrowers ending December 31,
1994 shall be $12,724,400 and (iii) during each Fiscal Year of
the Borrowers ending after December 31, 1994 shall be equal to
the sum of (x) the minimum consolidated Net Worth required to
be maintained by the Borrowers under this Section 6.1.13.1
during the immediately preceding Fiscal Year plus (y) an
amount equal to 75% of the consolidated Net Income of the
Borrowers for such immediately preceding Fiscal Year.
3. Dividends. To Section 7.1.5 of the Loan Agreement,
the following qualification shall be added after the phrase "...pay or declare
any dividend or distribution on any of such Borrower's capital stock...":
...except that commencing on [April 28th, 1995] SHI [herein,
USL] may declare and pay dividends on its common stock if at
the time of declaration and after giving effect thereto (as if
then paid) the aggregate amount of all dividends so declared
and paid by SHI in any Fiscal Year shall not exceed (i) in the
case of dividends paid during the Fiscal Year ending December
31, 1995, 25% of the Borrowers' consolidated Net Income for
the Fiscal Year ended December 31, 1994, and (ii) in the case
of dividends paid during the Fiscal Year ending December 31,
1996 and subsequent Fiscal Years, 25% of the average of the
Borrowers' consolidated Net Incomes for the two immediately
preceding Fiscal Years; and....
4. Capital Expenditures. Section 7.1.12 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
Make Capital Expenditures in any Fiscal Year in excess of
$4,500,000;
5. Conditions Precedent. As conditions precedent to the
performance by Bank of any of Bank's obligations hereunder, Borrower
acknowledges that Bank shall have received, in form or substance satisfactory
to Bank and Bank's counsel, in addition to this Second Amendment, the following
documents, items and instruments:
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5.1 Resolutions adopted by the Boards of Directors of
each Borrower authorizing the execution, delivery and performance of this
Second Amendment, all certified by Borrower's Secretary to be in full force and
effect as of the date hereof; and
5.2 Such additional documents or instruments as Bank may
reasonably require.
6. Miscellaneous.
6.1 Integration. This Second Amendment, the Loan
Agreement, and the other loan documents shall be construed as one agreement,
and in the event of any inconsistency, the provisions of this Second Amendment
shall control the provisions of any other Loan Document, except for the Notes.
This Second Amendment, the Loan Agreement, the Notes, and the other Loan
Documents, contain all of the agreements of the parties hereto with respect to
the subject matter of each thereof and supersede all prior or contemporaneous
agreements with respect to such subject matter.
6.2 Survivorship. The terms of this Second Amendment and
all agreements, representations, warranties or covenants made by Borrower in
the Loan Agreement, and the other Loan Documents shall survive the issuance and
payment of the Notes and shall continue as long as any portion of the
Indebtedness shall remain outstanding and unpaid, provided, however, that the
covenants set forth in Section 1.6 and 6.2 of the Loan Agreement shall survive
the payment of the Indebtedness.
6.3 Successors and Assigns; Governing Law. This Second
Amendment shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto; provided however that no Borrower
shall assign this Second Amendment, or any rights or duties arising hereunder,
without the prior written consent of Bank. This Second Amendment shall be
construed and enforced in accordance with the internal laws of the Commonwealth
of Pennsylvania.
6.4 WAIVER OF JURY TRIAL. EACH BORROWER AND BANK
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT BY ANY PARTY
WITH RESPECT TO THE LOAN AGREEMENT, AS AMENDED HEREBY, OR AS AMENDED HEREAFTER,
ANY LOAN DOCUMENT OR THE INDEBTEDNESS.
6.5 Partial Invalidity. If any provision of this Second
Amendment shall for any reason be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision hereof,
but this Second Amendment shall be construed as if such invalid or
unenforceable provision had never been contained herein.
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6.6 Headings. The heading of any paragraph contained in
this Second Amendment is for convenience of reference only and shall not be
deemed to amplify, limit, modify or give full notice of the provisions thereof.
6.7 Counterparts. This Second Amendment may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment under seal, intending to be legally bound hereby, on the day and year
first above written.
Bank:
CORESTATES BANK, N.A.
By: /s/ CLIFFORD W. KEWLEY
Clifford W. Kewley,
Vice President
Borrowers:
UNITED STATES LIME & MINERALS,
INC. (formerly known as Scottish
Heritable, Inc.)
By: /s/ ROBERT F. KIGER
CORSON LIME COMPANY
By: /s/ TIMOTHY W. BYRNE
ARKANSAS LIME COMPANY
By: /s/ TIMOTHY W. BYRNE
TEXAS LIME COMPANY
By: /s/ TIMOTHY W. BYRNE
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