Exhibit 10.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE TRANSFERRED EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR (B) IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO THAT CERTAIN NOTE
AND WARRANT PURCHASE AGREEMENT, DATED AS OF AUGUST 5, 2003, BY AND AMONG THE
COMPANY AND THE PURCHASERS NAMED THEREIN.
14% SUBORDINATED PIK NOTE DUE 2008
$_____________
Note Issue Date: August 5, 2003 Note No. ___
For value received, United States Lime & Minerals, Inc., a Texas
corporation (the "Company"), promises to pay to _________________ (the
"Holder"), the principal amount of $5,500,000 (the "Original Principal Amount"),
plus such additional amounts of principal as may be added, from time to time, to
this Note pursuant to Section 1.3 below (the "Capitalized Principal Amount" and,
together with the Original Principal Amount, the "Total Principal Amount"),
together with interest on the unpaid balance of the Total Principal Amount from
time to time outstanding, and interest on all past due amounts, both principal
and accrued interest, all as provided in this 14% Subordinated PIK Note Due 2008
(this "Note"). All payments shall be made in lawful money of the United States
of America at the principal offices of the Company or, at the option of the
Company, may be made by certified or official bank check made payable to the
order of the Holder and mailed to the Holder at the Holder's address set forth
on the signature page hereof or by wire transfer of immediately available funds
to an account designated by the Holder. This Note is one of a series of Notes
issued pursuant to that certain Note and Warrant Purchase Agreement, dated as of
August 5, 2003, by and among the Company and the Purchasers listed on Schedule A
thereto (the "Note and Warrant Purchase Agreement"). In addition to the terms
and conditions of the Note and Warrant Purchase Agreement, this Note is subject
to the following terms and conditions:
1. Payment of Interest.
1.1 Interest will accrue on the unpaid Total Principal Amount and
all past due amounts at a rate per annum equal to 14.0 percent (computed for the
actual number of days elapsed on the basis of a year of 360 days).
1.2 The Company will pay accrued interest (i) quarterly in
arrears, commencing on September 30, 2003 and continuing on each December 31,
March 31,
June 30 and September 30 thereafter, (ii) on the Maturity Date (as defined in
Section 2), and (iii) thereafter on demand.
1.3 So long as no Event of Default (as defined in the Note and
Warrant Purchase Agreement) has occurred and is continuing, prior to the
Maturity Date the Company may elect not to pay in cash a portion of any interest
payment that constitutes interest on this Note at a rate per annum of up to two
percent, in which case such portion of such interest payment shall compound,
effective as of such interest payment date, by adding such accrued and unpaid
interest to the principal amount of this Note as Capitalized Principal Amount
and accruing interest on the Total Principal Amount, including such Capitalized
Principal Amount, resulting thereafter. The Company shall be deemed to have
elected to compound a portion of each interest payment that constitutes interest
on this Note at a rate per annum of two percent unless the Company gives the
Holder written notice at least 10 days' prior to the next succeeding interest
payment date that it intends to pay all or a portion of such interest in cash on
such interest payment date. So long as an Event of Default is continuing, the
Company shall pay all interest in cash.
2. Maturity Date. The Company agrees to pay in full the Total Principal
Amount, and any interest accrued and unpaid thereon and all other unpaid amounts
owing under this Note, on August 5, 2008 (the "Maturity Date").
3. Prepayment.
3.1 The Company shall be entitled voluntarily to prepay the
Original Principal Amount, in whole at any time or in part, consisting of
$10,000 or multiples thereof, from time to time, on or after August 5, 2005 (the
"Permitted Prepayment Date"). Except as set forth in Section 3.2, in the event
of such voluntary prepayment of the Original Principal Amount on or after the
Permitted Prepayment Date, or any prepayment prior to the Permitted Prepayment
Date in the event that the then outstanding Original Principal Amount is
accelerated pursuant to Section 5, the Holder shall be entitled to receive
together with such prepayment of the Original Principal Amount so prepaid, (i)
accrued and unpaid interest on the Original Principal Amount so prepaid through
the date of prepayment and (ii) a prepayment premium equal to four percent
multiplied by the portion of the Original Principal Amount that is being prepaid
(the "Prepayment Premium"). If the Company elects to prepay all or any portion
of the Original Principal Amount, the Company shall furnish written notice to
the Holder with respect to such prepayment not less than 10 days prior to the
date of prepayment. Such notice shall specify the amount of the Original
Principal Amount to be prepaid on such date.
3.2
(a) In the event that the Company elects to prepay the
Original Principal Amount of the Subordinated Note (as defined in Section
4.1(g)) held by Credit Trust s.a.l. (the "Credit Trust Note"), in whole at any
time or in part, from time to time, before the Permitted Prepayment Date (except
for a prepayment pursuant to the exercise of the Foreclosure Prepayment Right as
provided in Section 9.2), then as a condition of
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any such prepayment of the Credit Trust Note, the Company shall offer to prepay
the Original Principal Amount of all Subordinated Notes then outstanding to the
same extent and proportion, based upon the Original Principal Amount of the
Credit Trust Note and of each of the other Subordinated Notes, and on the same
terms as the prepayment of the Original Principal Amount of the Credit Trust
Note except that the Holder of such other Subordinated Note will be entitled to
receive together with such prepayment of the Original Principal Amount so
prepaid a prepayment premium equal to two percent multiplied by the portion of
the Original Principal Amount that is being prepaid. The closing of the
prepayment of any of the Original Principal Amount of the Credit Trust Note
shall take place concurrently with the closing of the prepayment of that portion
of the Original Principal Amount of the Subordinated Note elected to be prepaid
by the Holder.
(b) In the event that the Company elects to prepay the
Original Principal Amount of any Subordinated Notes, in whole at any time or in
part, from time to time on or after the Permitted Prepayment Date (except for a
prepayment pursuant to the exercise of the Foreclosure Prepayment Right as
provided in Section 9.2), then as a condition of, and concurrently with, any
such prepayment, the Company will prepay the Original Principal Amount of all
Subordinated Notes then outstanding to the same extent and proportion, based
upon the Original Principal Amount of each Subordinated Note; provided; however,
that the Holders of the Subordinated Notes other than the Credit Trust Note will
in every such case be entitled to receive together with such prepayment of the
Original Principal Amount so prepaid the Prepayment Premium and, in no event,
will Credit Trust s.a.l be entitled to payment of any Prepayment Premium.
3.3 The Company shall be entitled voluntarily to prepay the
Capitalized Principal Amount in whole at any time or in part, from time to time.
No Prepayment Premium or other penalty shall be due with respect to any such
prepayment of Capitalized Principal Amount. Partial prepayments of the
Capitalized Principal Amount shall be applied first to accrued but unpaid
interest on the Capitalized Principal Amount being prepaid, and next to
principal. If the Company elects to prepay all or any portion of the Capitalized
Principal Amount, the Company shall furnish written notice to the Holder with
respect to each prepayment not less than 10 days prior to the date of
prepayment. Such notice shall specify the amount of the Capitalized Principal
Amount to be prepaid on such date.
4. Subordination.
4.1 As used in this Note, the following terms shall have the
following meanings:
(a) "Company Group" shall mean and include each of the
Company, Texas Lime Company, a Texas corporation, and Arkansas Lime Company, an
Arkansas corporation.
(b) "Senior Creditors" shall mean and include all of the
holders for the time being of the Senior Debt or any portion of it.
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(c) "Senior Debt" shall mean and include (i) all debt
listed on Exhibit A hereto and (ii) all other duties, obligations, indebtedness
and other liabilities (whether direct or indirect, liquidated or contingent,
presently existing or arising in the future) of the Company to whomsoever owed
which are secured by liens upon or security interests in any assets of the
Company and/or any of its subsidiaries; provided, however, in no event shall it
include any of the Subordinated Debt if any of such Subordinated Debt becomes
secured.
(d) "Senior Debt Documents" shall mean, collectively, any
agreement, document, or instrument which evidences, secures or otherwise
pertains to any of the Senior Debt.
(e) "Senior Notes" shall mean the promissory notes
evidencing the Senior Debt, as amended, restated or otherwise in effect from
time to time and any other promissory notes or similar evidences of indebtedness
now or hereafter evidencing the Senior Debt, as the same may in each case be
amended, restated or otherwise in effect from time to time.
(f) "Standstill Period" shall mean the period of one year
commencing upon the occurrence of any Subordinated Debt Default; provided,
however, that the Standstill Period shall toll during the pendency of any
bankruptcy proceeding under the Federal bankruptcy laws or otherwise (as now or
hereafter in effect) with respect to the Company.
(g) "Subordinated Debt" shall mean the Total Principal
Amount of and prepayment premium, if any, and interest on this Note and any and
all other indebtedness and obligations now or hereafter existing or arising
which are due under or evidenced by this Note and all of the other Notes issued
under the Note and Warrant Purchase Agreement (collectively, the "Subordinated
Notes").
(h) "Subordinated Debt Default" shall mean any default by
the Company on account of any payment due under the Subordinated Debt.
(i) "Subordinated Debt Documents" shall mean,
collectively, any agreement, document, or instrument which evidences, secures or
otherwise pertains to any of the Subordinated Debt.
4.2 The Holder and the Company each jointly and severally covenant
and agree that the Subordinated Debt is and shall be subordinate, to the extent
and in the manner hereinafter set forth, in right of payment to the irrevocable
prior payment in full and performance of all present and future duties,
obligations, indebtedness and liabilities (whether direct or indirect,
liquidated or contingent, presently existing or arising in the future) under or
in respect of the Senior Debt in any amount now or hereafter existing, whether
in respect of the loans and other extensions of credit comprising the Senior
Debt or in respect of Senior Debt Documents and whether for principal, premium,
interest accruing (including without limitation interest accruing after the
initiation of any Proceeding (as defined in Section 4.7(a) hereof)), fees,
expenses or otherwise.
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4.3 In furtherance of the foregoing, the Holder agrees that any
and all Senior Debt Documents may be modified, amended, supplemented or restated
in any manner and at any time without obtaining the consent of or providing
notice to the Holder.
4.4 Nothing in this Section 4 shall limit or affect (i) the
issuance to the Holder hereof of the Warrant (as defined in the Note and Warrant
Purchase Agreement), (ii) the issuance by the Company of Warrant Shares (as
defined in the Note and Warrant Purchase Agreement) upon the exercise of the
Warrant, or (iii) any adjustment contemplated by the anti-dilution provisions of
the Warrant; provided, however, that, if the Company is in default or the
payment by the Company of the Aggregate Repurchase Price (as defined in the
Warrant) would cause a default under or with respect to any Senior Debt, the
Holder shall not exercise any right to "put" to or compel the Company to
repurchase or redeem any Warrant Shares owned by the Holder.
4.5 The Holder by acceptance of this Note hereby covenants and
agrees to give to each holder of Senior Debt hereinabove identified in clause
(i) of the definition of "Senior Debt," and each other holder of Senior Debt the
identity of whom shall have been furnished to the Holder in writing, prompt
written notice of any Subordinated Debt Default, which notice shall be given at
the same time as notice is given by the Holder to the Company. The Holder agrees
not to ask for or demand, directly or indirectly, in cash or other property or
by set-off, purchase, redemption or in any other manner (including without
limitation from or by way of collateral), payment of all or any of the
Subordinated Debt during any Standstill Period. Without limiting the generality
and in furtherance of the foregoing, during any Standstill Period the Holder
shall not, directly or indirectly, under any circumstances:
(a) declare an Event of Default;
(b) accelerate, for any reason whatsoever, the maturity
of any amount due and owing on the Subordinated Debt;
(c) assert, collect, sue upon, or enforce all, or any
part of, the Subordinated Debt;
(d) take any enforcement action against the Company or
any of the properties or assets of the Company with respect to the Subordinated
Debt; or
(e) accept any collateral as security for the
Subordinated Debt.
4.6 Notwithstanding the provisions of Sections 4.1 through 4.5
hereof, the Company shall be permitted to pay to the Holder, and the Holder
shall be permitted to receive, regularly scheduled payments of interest at a
rate per annum not in excess of the rate of interest stated in this Note and
prepayments of the Original Principal Amount and the Capitalized Principal
Amount in accordance with Section 3 of this Note, but only if (i) no event of
default has occurred and is continuing under or with respect to any of the
Senior Debt Documents and (ii) any such payment, after giving effect thereto,
would not result in the occurrence of any such event of default referenced in
(i) above.
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4.7 In furtherance of the foregoing, the Holder covenants and
agrees as follows:
(a) Upon any distribution of all or any of the assets of
the Company to creditors of the Company upon the dissolution, winding-up,
liquidation, arrangement or reorganization of the Company (as the case may be),
whether in any bankruptcy, insolvency, arrangement, reorganization or
receivership proceeding or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of the Company (all of the
foregoing collectively, "Proceedings"), or in the event that all amounts owing
under any of the Senior Debt have become, or have been declared to be, due and
payable (and have not been paid in accordance with their respective terms), then
any payment or distribution of any kind (whether in cash, property or
securities) which otherwise would be payable or deliverable upon or with respect
to the Subordinated Debt shall be paid or delivered directly to a custodian
designated in writing by the holders of a majority in principal amount of the
Senior Debt, for application pro rata (in the case of cash) to or as collateral
(in the case of non-cash property or securities) for the payment or prepayment
of the Senior Debt to the extent necessary to pay the Senior Debt in full in
accordance with Section 4.2.
(b) If any Proceeding is commenced by or against the
Company, each Senior Creditor is hereby irrevocably authorized and empowered (in
its own name or in the name of the Holder or otherwise), but shall have no
obligation, to demand, sue for, collect and receive every payment or
distribution referred to in Section 4.7(a) hereof and give receipts therefor and
to file claims and proofs of claim and take such other action (including without
limitation voting the Subordinated Debt) as such Senior Creditor may deem
necessary or advisable for the exercise or enforcement of any of the rights or
interests of such Senior Creditor hereunder.
(c) The Holder shall not ask for or demand, directly or
indirectly, any guaranty, suretyship, or security or collateral, or accept any
grant of any guaranty, suretyship, or security interest in, or transfer of, any
property or assets, whether now owned or hereafter acquired, of any member of
the Company Group as collateral for the Subordinated Debt, except for guaranties
and sureties in connection with which the guarantor or surety waives its right
of subrogation against each Senior Creditor. Any grant of a guaranty,
suretyship, or security interest or transfer of property or assets by a member
of the Company Group in favor of the Holder in violation of this Section 4.7(c)
shall be deemed null and void and have no force or effect and any such grant or
transfer prior to the payment in full of the Senior Debt in accordance with
Section 4.2, or otherwise contrary to the provisions of this Section 4, shall be
received by the Holder in trust for the pro rata benefit of the Senior Creditors
and shall be disposed of in the manner provided in Section 4.7(a) hereof.
4.8 The Holder covenants and agrees that during any Standstill
Period the Holder will not commence or join with any creditor in commencing any
Proceeding or any other proceeding to enforce the Holder's rights with respect
to the Subordinated Debt.
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4.9 The Holder agrees that no payment or distribution to any
Senior Creditor pursuant to the provisions of this Section 4 shall entitle the
Holder to exercise any rights of subrogation in respect thereof until the Senior
Debt shall have been irrevocably paid and satisfied in full in accordance with
Section 4.2.
4.10 All rights and interests of the Senior Creditors, and all
agreements and obligations of the Holders and the Company, under this Section 4
shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of the Senior
Debt Documents;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Senior Debt, or any other
amendment or waiver of or any consent to departure from the Senior Debt
Documents;
(c) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty, for all or any of the Senior Debt;
(d) any other circumstance which might otherwise
constitute a defense available to, or a discharge of the Company with respect to
the Senior Debt or the Holder with respect to this Section 4; or
(e) any increase in the amount of the Senior Debt.
4.11 This Section 4 is a continuing agreement and shall (i) remain
in full force and effect until all of the Senior Debt shall have been
irrevocably paid in full in accordance with Section 4.2, (ii) be binding upon
the Holder and the Company and their respective permitted successors and
assigns, and (iii) inure to the benefit of and be enforceable directly by the
Senior Creditors, the Holder, the Company and their respective permitted
successors, transferees and assigns. Without limiting the generality of the
foregoing, each Senior Creditor may assign or otherwise transfer any of the
Senior Notes held by it or any other evidence of the Senior Debt held by it to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to the Senior
Creditors herein or otherwise. Each of the Senior Creditors is hereby expressly
declared to be a third-party beneficiary of this Section 4.
4.12 The provisions of this Section 4 subordinating the
Subordinated Debt are solely for the purpose of defining the relative rights of
the Senior Creditors and the Holder and shall not impair, as between the Holder
and the Company, the obligation of the Company to pay the Subordinated Debt to
the Holder strictly in accordance with its terms. Nothing contained in this Note
shall be deemed to confer any rights upon the Company with respect to either the
Senior Debt or the Subordinated Debt.
5. Covenants; Events of Default. This Note is subject to those certain
covenants made by the Company in the Note and Warrant Purchase Agreement. The
Total Principal Amount of the Subordinated Notes, together with any interest
accrued but
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unpaid thereon, shall become immediately due and payable upon declaration to
such effect given in writing by the Majority Purchasers (as defined in the Note
and Warrant Purchase Agreement ) after the occurrence and during the
continuation of an Event of Default; provided, however, that upon the occurrence
of an Event of Default described in Section 6.9 or Section 6.10 of the Note and
Warrant Purchase Agreement such Total Principal Amount, together with interest
accrued but unpaid thereon, shall become immediately due and payable
automatically and without declaration and notice of any kind.
6. Registration of Note and Note Ledger. The Company shall maintain at its
principal executive offices a register in which it shall register this Note and,
immediately after any permitted transfer in accordance with Section 9, any New
Note (as defined below). The Company shall maintain a note ledger with respect
to this Note and any New Note, which ledger shall present the Total Principal
Amount immediately after any addition of Capitalized Principal Amount to the
Total Principal Amount, the Original Principal Amount then outstanding, the
Capitalized Principal Amount then outstanding, and any prepayment made.
7. Loss, Theft, Destruction or Mutilation of This Note. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note and, in the case of any such loss, theft or
destruction, upon receipt of an indemnity agreement or other indemnity
reasonably satisfactory to the Company or, in the case of any such mutilation,
upon surrender and cancellation of such mutilated Note, the Company shall issue
and deliver within five business days a new Note, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Note.
8. Governing Law. This Note and all acts and transactions pursuant hereto
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Texas,
without giving effect to principles of conflicts of law and choice of law that
would cause the laws of any other jurisdiction to apply.
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9. Successors and Assigns.
9.1 Except as set forth in Section 9.2, the Holder may not sell,
assign, pledge, dispose of or otherwise transfer this Note, or any interest
herein, without the prior written consent of the Company, which consent will not
be unreasonably withheld. Subject to the preceding sentence, this Note may be
transferred only upon surrender of this Note at the Company's principal
executive offices for registration of transfer accompanied by (i) a written
instrument of transfer in form satisfactory to the Company duly executed by the
Holder, (ii) an opinion satisfactory to the Company with respect to the transfer
in accordance with Federal and state securities laws, and (iii) a Joinder to the
Note and Warrant Purchase Agreement in the form of Schedule C to the Note and
Warrant Purchase Agreement duly executed by the permitted transferee. Thereupon,
a new note (a "New Note") in the same Total Principal Amount with the same terms
as this Note will be issued to, and registered in the name of, the transferee.
Interest and principal are payable only to the registered holder of this Note or
any New Note. The terms and conditions of this Note shall inure to the benefit
of and be binding upon the respective successors and permitted assigns of the
parties.
9.2 The Holder may, upon prior written notice to the Company and
in accordance with the terms of this Section 9.2 and Federal and state
securities laws, transfer this Note, or any interest herein, in connection with
a bona fide pledge of this Note, or such interest herein, without the prior
written consent of the Company. In the event that the Holder pledges this Note,
or any interest herein, (such pledged Note or interest, the "Third Party
Collateral Security") to a third party (the "Pledgee") and the Pledgee at any
time thereafter exercises its right to foreclose on the Third Party Collateral
Security (a "Foreclosure Event"), the Holder shall give the Company and each
other Holder of a Subordinated Note then outstanding written notice of such
Foreclosure Event (the "Notice"). Holders of the other Subordinated Notes then
outstanding shall have the right, pro rata based upon the Total Principal Amount
of the Subordinated Notes owned by such other Holders, or in such other
proportion as such Holders may agree, for a period of 10 days following receipt
of the Notice (the "Purchase Period") to purchase all or a portion of this Note
from the Pledgee for the Total Principal Amount or the applicable portion of the
Total Principal Amount, as the case may be, by giving written notice to the
Holder of the exercise of such right, with a copy to the Company, within the
Purchase Period. If the Holders of the other Subordinated Notes then outstanding
do not elect to purchase this Note in accordance with the previous sentence,
then the Company shall have the right for a period of 10 days following the
expiration of the Purchase Period (the "Foreclosure Payment Period") to prepay
the balance of the Total Principal Amount of this Note in whole or in part,
whether or not such prepayment occurs prior to the Permitted Prepayment Date,
without payment of any Prepayment Premium (the "Foreclosure Prepayment Right").
In the event that the Company does not exercise its Foreclosure Prepayment Right
in full, the Company shall have the right, for a period of 10 days following the
expiration of the Foreclosure Payment Period, to direct that the Pledgee sell
this Note for an amount equal to the unpaid balance of the Total Principal
Amount to an affiliate of the Company. The closing of any such sale shall take
place within 10 days following the expiration of the Foreclosure Payment Period.
In the event that the Company does not exercise its Foreclosure Prepayment Right
in full and this
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Note is not purchased by an affiliate, then the Pledgee shall be free to sell
this Note in accordance with Federal and state securities laws. Nothing in this
Section 9.2 precludes the Company, its affiliates and the Holders of the other
then outstanding Subordinated Notes from allocating the right to purchase this
Note among themselves in such manner as they may mutually agree. Any transfer of
this Note pursuant to this Section 9.2 shall be made in accordance with the
procedures set forth in Section 9.1 (other than the first sentence thereof).
10. Amendment or Waiver. Subject to Section 7.5 of the Note and Warrant
Purchase Agreement, any provision of this Note may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only upon the written consent of the Company
and the Holder. No consent shall be required of any other person, including any
Senior Creditor, to any such amendment or waiver. No delay or failure in
exercising any rights or remedies under or with respect to this Note shall
operate as a waiver of any rights or remedies of the Holder. The Holder's right
to accelerate this Note for any late payment or the Company's failure to timely
fulfill its other obligations hereunder or under the other Subordinated Debt
Documents shall not be waived or deemed waived by the Holder by the Holder's
having accepted a late payment or late payments in the past or the Holder
otherwise not accelerating this Note or exercising other remedies for the
Company's failure to timely perform its obligations hereunder or under the other
Subordinated Debt Documents.
11. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified; (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day; (iii) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; (iv) if the Holder is located within
the continental United States, the next business day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt; or (v) if the Holder is located outside of the
continental United States, the third business day after deposit with an
internationally recognized courier, with written verification of receipt. All
communications shall be sent to the Company at the address as set forth on the
signature page hereof and to the Holder at the address set forth on the
signature page hereof, or at such other address as the Company or the Holder may
designate by 10 days' advance written notice to the other party hereto.
12. Titles and Subtitles. The titles of the sections and subsections of
this Note are for convenience of reference only and are not to be considered in
construing this Note.
13. Counterparts. This Note may be executed in two counterparts, each of
which shall be an original, but both of which together shall constitute one
instrument.
14. Benefits of this Agreement. Subject to Section 4, nothing in this Note
shall be construed to give any person or corporation other than the Company and
the Holder any legal or equitable right, remedy or claim under this Note and
this Note shall be for the sole and exclusive benefit of the Company and the
Holder and any other permitted holder or holders of this Note.
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15. Shareholders, Officers and Directors Not Liable. In no event shall any
shareholder, officer or director of the Company be liable for any amounts due or
payable pursuant to this Note.
16. Expenses. In addition to all other sums payable under this Note, the
Company also agrees to pay to the Holder, on demand, all costs and expenses
(including reasonable attorneys' fees, disbursements and expenses) incurred by
the Holder in connection with the enforcement of the Company's obligations under
this Note.
17. Presentment. The Company hereby waives presentment for payment, demand,
protest, notice of intent to accelerate and notice of acceleration, notice of
protest, and notice of dishonor, diligence in collecting and the filing of suit
for the fixing of liability and all other notices of any kind whatsoever to
which it may be entitled under applicable law or otherwise, except for any
notice to which the Company may be entitled under this Note.
18. Maximum Lawful Rate of Interest. The rate of interest payable under
this Note shall in no event exceed the maximum rate permissible under applicable
law. If the rate of interest payable on this Note is ever reduced as a result of
this Section 18 and at any time thereafter the maximum rate permitted under
applicable law exceeds the rate of interest then provided for in this Note, then
the rate provided for in this Note shall be increased to the maximum rate
provided for under applicable law for such period as is required so that the
total amount of interest received by the Holder is at least that which would
have been received by the Holder but for the operation of the first sentence of
this Section 18.
19. Entire Agreement. This Note and the other Subordinated Debt Documents
embody the entire agreement and understanding between the Holder and the Company
and other parties with respect to their subject matter and supersede all prior
conflicting or inconsistent agreements, consents and understandings relating to
such subject matter. The Company acknowledges and agrees that there is no oral
agreement between the Company and the Holder which has not been incorporated in
this Note and the other Subordinated Debt Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered by its authorized officer, as of the date first above
written.
UNITED STATES LIME & MINERALS, INC.
By:_________________________________________
Name: Timothy W. Byrne
Title: President and Chief Executive Officer
Address: 13800 Montfort Drive, Suite 330
Dallas, Texas 75240
Telephone: (972) 991-8400
Facsimile: (972) 385-1805
AGREED TO AND ACCEPTED:
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Address:
Telephone:
Facsimile:________________________________
EXHIBIT A
Listed Senior Debt
All indebtedness, interest, fees, costs and expenses now existing or
hereafter arising under or in connection with the following documents, as the
same may be amended, restated or otherwise modified and in effect from time to
time:
1. The Credit Agreement, dated as of April 22, 1999, as amended
by the First Amendment to Credit Agreement, dated as of December 27, 2000, a
letter agreement dated March 4, 2003, and the Third Amendment to Credit
Agreement, dated as of August 5, 2003, each as amended, restated or otherwise
modified and in effect from time to time, by and among the members of the
Company Group, the lenders referred to therein and National City Bank (successor
to Wachovia Bank, National Association) pursuant to which such lenders have
agreed to make loans to and otherwise provide credit to or for the benefit of
the members of the Company Group.
2. The Loan and Security Agreement, dated March 3, 2003, as
amended by the First Amendment to Loan and Security Agreement, dated as of
August 5, 2003, as amended, restated or otherwise modified and in effect from
time to time, by and among the members of the Company Group and National City
Bank.