BANK OF OKLAHOMA N.A. Xxxx X. Xxxxxxxxxxxx
Senior Vice President
Bank of Oklahoma Tower 000-000-0000
P 0. Xxx 0000 FAX: 000-000-0000
Xxxxx, Xxxxxxxx 00000 Xxxxxxxxxxxxx@xxxx.xxx
December 31, 2002
Xx. Xxxxxxx X. Xxxxxx
Chief Financial Officer
The Monarch Cement Company
000 0000 Xxxxxx
Xxxxxxxx, XX 00000
RE: First 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").
Dear Xxxxxxx:
Bank of Oklahoma, N.A. ("Lender") is pleased to renew and modify the Loan
Agreement subject to the terms of this letter amendment ("First Amendment").
Subject to the terms of the Loan Agreement as modified by this First
Amendment, the Commitment will be: 1) a $25,000,000 Term Loan ("Term Loan")
that is a modification and decrease of the $30,000,000 Advancing Term Loan;
and 2) a $10,000,000 Revolving Line of Credit ("Revolving Line") that is a
renewal and increase of the $5,000,000 Revolving Line.
Section 1 of the Loan Agreement is hereby deleted and replaced with the
following:
1. The Term Loan. Lender agrees to loan Borrower $25,000,000 as evidenced
by a promissory note in the form attached hereto as Exhibit A, maturing on
December 31, 2005, (which, together with any extensions, renewals and changes
in form thereof, is hereinafter referred to as the "Term Note").
1.1. The Term Note will be payable in equal quarterly installments of
principal and interest in an amount to equate to a seven-year amortization,
with such payments calculated using the interest rate in effect on
December 31, 2002 (3.00%), provided however, that either Lender or Borrower
may elect to recalculate the payment installments on the 12-month anniversary
of this First Amendment based on the outstanding principal balance on that
date, the current floating interest rate on that date, and the number of
quarters remaining in the original seven year amortization. All outstanding
principal and interest will be due and payable on December 31, 2005.
1.2. Interest shall accrue and be payable quarterly as set forth in the
Term Note at a floating interest rate of the X.X. Xxxxxx Chase prime rate
less 1.25%.
1.3. Borrower may prepay the Term Loan in whole or part at any time
without penalty.
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 $10,000,000 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, 2003 (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 prepay 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 X.X. Xxxxxx Xxxxx prime rate less
..75%. The outstanding principal balance plus accrued interest shall be
payable at maturity date of December 31, 2003.
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.
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 acceptable to Lender.
3. Minimum Net Worth: Borrower will maintain a minimum tangible net worth
(in accordance with generally accepted accounting principles) of $70,000,000
determined on the last day of any fiscal quarter commencing with the quarter
ending December 31, 2002.
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 $5,000,000 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:
i) Secured debt in the aggregate in excess of $1,000,000; and
ii) 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 First 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 in 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 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
First Amendment,
Borrower consents to the provisions of the Term Note and Line Note; provided
however, that to the extent any conflict exists between the Loan Agreement
and the Notes, then this 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.
Name: Xxxx Xxxxxxxxxxxx Name: Xxxxxx X. Xxxx, Xx.
Title: Senior Vice President Title: President and Chairman
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