Contract
EXHIBIT
10.1(f)
| Xxxx X. Xxxxxxxxxxxx | |
| Senior Vice President | |
| 000-000-0000 | |
| FAX: 000-000-0000 | |
| Xxxxxxxxxxxxx@xxxx.xxx |
December
31, 2007
Xx. Xxxxx
Xxx
Chief
Financial Officer
The
Monarch Cement Company
000 0000
Xxxxxx
Xxxxxxxx,
XX 00000
RE: Sixth
Amendment to Agreement dated January 1, 2001 between The Monarch Cement Company
("Borrower") and Bank of Oklahoma, N.A. ("Lender") in the aggregate amount of
$35,000,000 (the "Loan Agreement"), as amended by First Amendment dated December
31, 2002, Second Amendment dated December 31, 2003, Third Amendment dated
December 31, 0000, Xxxxxx Xxxxxxxxx dated January 1, 2006 and Fifth Amendment
dated December 31, 2006.
Dear
Xxxxxx:
Bank of
Oklahoma, N.A. ("Lender") is pleased to renew and modify the Loan Agreement
subject to the terms of this letter agreement ("Sixth Amendment"). Subject to
the terms of the Loan Agreement, as amended, and this Sixth Amendment, the
Commitment will be: 1) a $25,000,000 Term Loan ("Term Loan") with a balance as
of December 6, 2007 of $19,916,206.59 and 2) a $15,000,000 Revolving Line of
Credit ("Revolving Line") that is a renewal of the $15,000,000 Revolving Line
subject to the terms of this letter amendment ("Sixth Amendment").
Section 2
of the Loan Agreement is hereby deleted and replaced with the
following:
2. The
Revolving Line.
Lender agrees to loan Borrower up to $15,000,000 as Borrower may from time to
time request as evidenced by a promissory note in the form attached as Exhibit
B, maturing on December 31, 2008 (which together with any extensions, renewals
and changes in form thereof, is hereinafter referred to as the "Line Note").
Advances under the Line Note shall be used for working capital and general
corporate purposes, including issuance of letters of credit.
2.1
Provided there is no Event of Default, Borrower may advance, pay down, and
re-advance funds on the Line Note.
2.2
Letters of Credit shall be issued pursuant to Lender's standard procedure, upon
receipt by Lender of an application; provided that (a) no event of default has
occurred and is continuing, and (b) the requested letter of credit will not
expire after the maturity date of the Line Note. Borrower shall pay all standard
fees and costs charged by Lender in connection with the issuance of Letters of
Credit. Lender shall be reimbursed for drawings under the Letters of Credit
either by Borrower or by an advance on the Line Note.
2.3
Borrower may repay the Revolving Line in whole or part at any time without
penalty.
2.4.
Interest shall accrue and be payable quarterly as set forth in the Line Note at
a floating interest rate of BOKF National Prime less 1.25%. The outstanding
principal balance plus accrued interest shall be payable at maturity date of
December 31, 2008.
TERMS
AND CONDITIONS: Unless otherwise agreed to in writing by
Lender:
1. Financial
Statements: Borrower will provide annual audited financial statements
within 120 days of the end of each fiscal year and quarterly unaudited financial
statements within 60 days after the end of each quarter. Along with quarterly
financial statements, Borrower will provide Lender with its internally-prepared
analysis of cash sources and uses for the four-quarter period then ended, in
form and content to be determined by Borrower and Lender as mutually
acceptable.
2. Capital
Budget: Borrower will provide to Lender, prior to the beginning of
Borrower's fiscal year and with quarterly updates thereafter, its capital
spending budget in form and content determined by Borrower and Lender as
mutually acceptable. Upon reasonable request by Lender, Borrower will furnish
copies of other information related to planned capital projects.
3.
Minimum Net Worth: Borrower will maintain a minimum tangible net worth
(in accordance with generally accepted accounting principles) of $90,000,000
determined on the last day of any fiscal quarter commencing with the quarter
ending December 31, 2007.
4. Sale
or Merger: Borrower will not sell to, merge or consolidate with any
person or entity or permit any such merger or consolidation with the Borrower,
except
for:
a.
mergers between Borrower and any of its subsidiaries or between any of its
subsidiaries, and
b.
mergers in which Borrower is the surviving entity.
5. Creation
or Existence of Liens: Borrower will not create or permit to exist any
mortgage, pledge, lien or other encumbrance on any of its property, personal or
real, tangible or intangible, other than purchase money liens up to $1,000,000
in the aggregate related to the acquisition of assets of Borrower in the
ordinary course of business.
6. Limitation
on Indebtedness: No limitation, other than Borrower will not create,
assume or incur:
a.
Secured debt in the aggregate in excess of $1,000,000; and
b.
Unsecured debt (other than the Commitment herein) in the aggregate in excess of
$2,000,000.
7. Change
in Ownership: Borrower will not permit the sale or transfer of capital
stock that results in a change in control of Borrower. A change in control (as
defined in Borrower's proxy statement) is any merger, consolidation or
disposition of all or substantially all of the assets of Borrower or any
acquisition by any person or group of persons acting in concert who after such
acquisition would own more than 30% of the Borrower's outstanding voting
stock.
8. Reimbursement
of Expenses: Borrower will pay all reasonable and customary out-of-pocket
expenses incurred as part of the Loan Agreement, including but not limited to
reasonable attorney's fees; however,
there will be no costs to Borrower for preparation of this Sixth Amendment,
absent material modifications or extended
negotiations.
9. General
Terms: Borrower agrees to maintain its properties, maintain insurance in
amounts and against risks customary for Borrower's business, maintain all
licenses and permits necessary to conduct Borrower's business, comply with laws
including but not limited to environmental laws, and maintain its corporate
existence in good standing.
EVENTS
OF DEFAULT: Borrower shall be in default under this Agreement upon the
occurrence of any one or more of the following events or conditions, herein
called "Default":
1. Any
payment required under any Note or obligation of Borrower to Lender is not made
within ten days of the due date.
2.
Borrower fails to perform or comply with any covenant, obligation, warranty or
provision in this Agreement or in any note or obligation of Borrower to Lender,
and such default continues uncured for thirty days or more from date of
occurrence.
3. Any
warranty, representation, financial information, or statement made or furnished
to Lender by or on behalf of Borrower proves to have been false in any material
respect when made or furnished.
4. The
condemnation, seizure or appropriation of substantially all, or such as in
Lender's reasonable opinion constitutes a material portion of the assets of the
Borrower.
5. The
rendering against Borrower of one or more final judgments, decrees or orders for
payment not covered by insurance, and the continuance of such judgment or order
unsatisfied and in effect for any period of thirty consecutive days without a
stay of execution.
6.
Dissolution or termination of existence of Borrower.
7.
Appointment of a receiver over any part of the property of Borrower, the
assignment of property of Borrower for the benefit of creditors or the
commencement of any proceedings under any bankruptcy or insolvency laws by or
against Borrower.
Upon the
occurrence or the existence of a Default, Lender may, at its option and without
notice or demand to Borrower, immediately declare due and payable all
liabilities and obligations of Borrower to Lender and exercise all rights and
remedies possessed by Lender.
GENERAL
PROVISIONS:
Unless
otherwise specified herein, all terms and conditions, representations, and
warranties of Borrower in the Loan Agreement remain in full force and effect. In
addition to the terms of the Loan Agreement, as modified by this Sixth
Amendment, Borrower consents to the provisions of the Term Note and the Line
Note; provided however, that to the extent any conflict exists between the Loan
Agreement and the Notes, then the Loan Agreement shall be
controlling.
| LENDER: | BORROWER: |
| Bank of Oklahoma, N.A. | The Monarch Cement Company |
| By: /s/ Xxxx Xxxxxxxxxxxx | By: /s/ Xxxxxx X. Xxxx, Xx. |
| Xxxx Xxxxxxxxxxxx | Xxxxxx X. Xxxx, Xx. |
| Senior Vice President | President |
PROMISSORY
NOTE
|
Principal
$15,000,000.00
|
Loan
Date
12-31-2007
|
Maturity
12-31-2008
|
Loan
No
00000000000
|
Call
/ Coll
04A0/001 - SOK
|
Account
|
Officer
946
|
Initials
|
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References
in the boxes above are for Lender's use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing "***" has been omitted due to text length
limitations.
|
|||||||
| Borrower: | The Monarch Cement Company (TIN: 00-0000000) | Lender: | Bank of Oklahoma, N.A. |
| 000 0000xx Xxxxxx | X.X. Xxx 0000 | ||
| Xxxxxxxx, XX 00000-0000 | Xxxxx, XX 00000 | ||
| Principal Amount:$15,000,000.00 | Initial Rate: 6.000% | Date of Note:December 31, 2007 |
PROMISE
TO PAY. The Monarch Cement Company ("Borrower") promises to pay to Bank
of Oklahoma, N.A. ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Fifteen Million & 00/100 Dollars
($15,000,000.00) or so much as may be outstanding, together with interest on the
unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each
advance.
PAYMENT.
Borrower will pay this loan in one payment of all outstanding principal plus all
accrued unpaid interest on December 31, 2008. In addition, Borrower will pay
regular quarterly payments of all accrued unpaid interest due as of each payment
date, beginning March 31, 2008, with all subsequent interest payments to be due
on the same day of each quarter after that. Unless otherwise agreed or required
by applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; and then to any unpaid collection costs. The
annual interest rate for this Note is computed on a 365/360 basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing.
VARIABLE
INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the BOKF National
Prime Rate, described as the rate of interest set by BOK Financial Corporation,
in its sole discretion, on a daily basis as published by BOK Financial
Corporation ("BOKF") from time to time (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans and is set by Lender
in its sole discretion. If the Index becomes unavailable during the term of this
loan, Lender may designate a substitute Index after notice to Borrower.
Lender will tell Borrower the current Index rate upon Borrower's request. The
interest rate change will not occur more often than each day. Borrower
understands that Lender may make loans based on other rates as well. The Index currently is 7.250% per annum. The interest rate to be applied to the unpaid
principal balance during this Note will be at a rate of 1.250 percentage
points under the Index, resulting in an initial rate of 6.000% per
annum. NOTICE: Under no circumstances will the interest rate
on this Note be more than the maximum rate allowed by applicable
law.
PREPAYMENT.
Borrower may pay without penalty all or a portion of the amount owed earlier
than it is due. Early payments will not, unless agreed to by Lender in writing,
relieve Borrower of Borrower's obligation to continue to make payments of
accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Borrower agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Lender may accept it without losing any of Lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender, All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to: Bank
of Oklahoma, N.A., X.X. Xxx 000000 Xxxxxxxx Xxxx, XX
00000-0000.
INTEREST
AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, the interest rate on this Note shall be increased to 18.000% per
annum. However, in no event will the interest rate exceed
the maximum interest rate limitations under applicable
law.
DEFAULT.
Each of the following shall constitute an event of default ("Event of Default")
under this Note:
|
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Payment
Default. Borrower fails to make any
payment when due under this Note.
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Other
Defaults. Borrower falls to comply with
or to perform any other term, obligation, covenant or condition contained
in this Note or in any of the related documents or to comply with or to
perform any term, obligation, covenant or condition contained in any other
agreement between Lender and
Borrower.
|
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Default
in Favor of
Third Parties. Borrower or any Grantor defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's ability to
repay this Note or perform Borrower's obligations under this Note or any
of the related documents.
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False
Statements. Any warranty, representation
or statement made or furnished to Lender by Borrower or on Borrower's
behalf under this Note or the related documents is false or misleading in
any material respect, either now or at the time made or furnished or
becomes false or misleading at any time
thereafter.
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Insolvency. The
dissolution or termination of Borrower's existence as a going business,
the insolvency of Borrower, the appointment of a receiver for any part of
Borrower's property, any assignment for the benefit of creditors, any type
of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against
Borrower.
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Creditor
or
Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or
any other method, by any creditor of Borrower or by any governmental
agency against any collateral securing the loan. This includes a
garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
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Events
Affecting Guarantor. Any of the preceding
events occurs with respect to any guarantor, endorser, surety, or
accommodation party of any of the indebtedness or any guarantor, endorser,
surety, or accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the
indebtedness evidenced by this Note.
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Change
In
Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower, subject to the change in ownership
provision of the December 31, 2007 Agreement, as
amended.
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Adverse
Change. A material adverse change occurs in
Borrower's financial
condition.
|
LENDER'S
RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance under this Note and all accrued unpaid interest immediately due, and
then Borrower will pay that amount.
ATTORNEYS'
FEES; EXPENSES. Lender may hire or pay someone else to help collect this
Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses, whether or not there is a lawsuit, including
without limitation all attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. If not prohibited by applicable law, Borrower also
will pay any court costs, in addition to all other sums provided by
law.
JURY
WAIVER. Lender and Borrower hereby waive
the right to any jury trial in any action, proceeding, or counterclaim brought
by either Lender or Borrower against the
other.
GOVERNING
LAW. This Note will be governed by, construed and enforced in accordance
with federal law and the laws of the State of Oklahoma. This Note has been
accepted by Lender in the State
of Oklahoma.
CHOICE
OF VENUE. If there is a lawsuit, Borrower
agrees upon Lender's request to submit to the jurisdiction of the courts of
Tulsa County, State of Oklahoma.
DISHONORED
ITEM FEE. Borrower will pay a fee to Lender of $23.00 if Borrower makes a
payment on Borrower's loan and the check or other payment order including any
preauthorized charge with which Borrower pays is later
dishonored.
RIGHT
OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether
| PROMISSORY NOTE | ||
| Loan No: 52969000002 | (Continued) | Page 2 |
checking, savings, or some other account). This includes all
accounts Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not include any XXX or Xxxxx accounts, or
any trust accounts for which setoff would be prohibited by law. Borrower
authorizes Lender, to the extent permitted by applicable law, to charge or
setoff all sums owing on the debt against any and all such accounts.
LINE OF CREDIT. This Note
evidences a revolving line of credit. Advances under this Note, as well as
directions for payment from Borrower's accounts, may be requested orally or in
writing by Borrower or by an authorized person. Lender may, but need not,
require that all oral requests be confirmed in writing. Borrower agrees to be
liable for all sums either: (A) advanced in accordance with the instructions of
an authorized person or (B) credited to any of Borrower's accounts with Lender.
The unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note or by Lender's internal records, including daily
computer print-outs.
PAYMENTS.
PAYMENTS
SHOULD BE REMITTED TO: Bank of Oklahoma, X.X. Xxx 000000, Xxxxxxxx Xxxx, XX
00000-0000.
RENEWAL
STATEMENT. This Promissory Note is an
extension, renewal and/or modification of the Promissory Note dated December 31,
2006, in the principal amount of $15,000,000.00, from the Borrower to Lender and
is not a novation and shall be deemed effective as of the date set forth as the
date such Promissory Note would have matured if not otherwise renewed or
extended hereby.
SUCCESSOR
INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and
assigns.
GENERAL
PROVISIONS. If any part of this Note cannot be enforced, this fact will
not affect the rest of the Note. Lender may delay
or forgo enforcing any of its rights or remedies under this Note without losing
them. Borrower and any other person who signs, guarantees or endorses this Note,
to the extent allowed by law, waive presentment, demand for payment, and notice
of dishonor. Upon any change in the terms of this Note, and unless otherwise
expressly stated in writing, no party who signs this Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability.
All such parties agree that Lender may renew or extend (repeatedly and for any
length of time) this loan or release any part or guarantor or collateral; or
impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the party
with whom the modification is made. The obligations under this Note are joint
and several.
PRIOR
TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD All THE PROVISIONS OF THIS
NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE
TERMS OF THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
THE
MONARCH CEMENT COMPANY
By: /s/
Xxxxxx X. Xxxx, Xx.
Xxxxxx
X. Xxxx, Xx., President of The Monarch
Cement
Company
