Contract
Exhibit 10.1(h)
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| Bershunda X. Xxxxxxx Vice President 000-000-0000 FAX: 000-000-0000 xxxxxxxx@xxxx.xxx |
December 31, 2009
RE: Eighth 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, Fifth Amendment dated December 31,
2006, Sixth Amendment dated December 31, 2007, and Seventh Amendment dated
December 31, 2008.
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 ("Eighth Amendment"). Subject to the terms of the Loan
Agreement, as amended, and this Eighth Amendment, the Commitment will be:
1) a $17,825,569.45 Term Loan ("Term Loan") with a balance of
$15,265,369.87 as of December 14, 2009 and 2) $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 ("Eighth Amendment").
Section 2 of the Loan Agreement is hereby
deleted and replaced with the following:
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2.
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2.1
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Provided
there is no Event of Default, Borrower may advance, pay down, and
re-advance funds on the Line
Note.
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Page 1 of
4
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2.2
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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.
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2.3
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Borrower
may repay the Revolving Line in whole or part at any time without
penalty.
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2.4
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Interest
shall accrue and be payable quarterly as set forth in the Line Note at a
floating interest rate of BOKF National Prime less 0.50%. Under no
circumstances will the rate on the Revolving Line be less than
3.50%. The outstanding principal balance plus accrued interest shall
be payable at maturity date of December 31,
2010.
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TERMS AND CONDITIONS:
Unless otherwise agreed to in writing by Lender:
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1.
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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.
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2.
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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.
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3.
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Minimum Net Worth:
Borrower's tangible net worth will be determined on the last
day of any fiscal quarter commencing with the quarter ending 12/31/2009,
as defined below:
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a.
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Tangible Net
Worth: Borrower will maintain a minimum Tangible Net Worth
(in accordance with generally accepted accounting principles) of
$90,000,000.
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b.
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Page 2 of
4
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4.
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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:
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a.
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mergers
between Borrower and any of its subsidiaries or between any of its
subsidiaries, and
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b.
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mergers in which
Borrower is the surviving
entity.
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5.
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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.
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6.
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Limitation on
Indebtedness: No limitation, other than Borrower will not
create, assume or incur:
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a.
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Secured debt in the
aggregate in excess of $1,000,000;
and
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b.
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Unsecured debt (other
than the Commitment herein) in the aggregate in excess of
$2,000,000.
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7.
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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.
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8.
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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 Eighth Amendment, absent material
modifications or extended
negotiations.
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9.
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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.
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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":
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1.
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Any
payment required under any Note or obligation of Borrower to Lender is not
made within ten days of the due date.
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Page 3 of
4
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2.
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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.
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3.
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4.
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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.
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5.
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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.
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6.
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Dissolution
or termination of existence of Borrower.
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7.
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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.
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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 Eighth 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/ Bershunda X. Xxxxxxx | By: /s/ Xxxxxx X. Xxxx, Xx. |
| Bershunda X. Xxxxxxx | Xxxxxx X. Xxxx, Xx. |
| Vice President | President |
| Page 4 of 4 |
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Principal
$15,000,000.00
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Loan
Date
12-31-2009
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Maturity
12-31-2010
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Loan
No
00000000000
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Call
/ Coll
4AO
/ 001
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Account
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Officer
841
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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.
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| Borrower: | The Monarch Cement Company (TIN: | Lender: | Bank of Oklahoma, N.A. |
| 00-0000000) | X.X. Xxx 0000 | ||
| 000 0000 Xxxxxx | Xxxxx, XX 00000 | ||
| Xxxxxxxx, XX 00000-0000 |
| PRINCIPAL AMOUNT: $15,000,000.00 | Date of Note: December 31, 2009 |
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, 2010. In addition, Borrower will pay
regular quarterly payments of all accrued unpaid interest due as of each payment
date, beginning March 31, 2010, 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. 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 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 notifying 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 4.000% per annum. Interest on the unpaid principal balance
of this Note will be calculated as described in the "INTEREST CALCULATION
METHOD" paragraph using a rate of 0.500 percentage points under the Index,
adjusted if necessary for any minimum and maximum rate limitations described
below, resulting in an initial rate of 3.500% per annum based on a year of 360
days. NOTICE: Under no circumstances will the interest rate on this Note be less
than 3.500% per annum or more than the maximum rate allowed by applicable
law.
INTEREST
CALCULATION METHOD. Interest on this Note is computed on a 365/360 basis:
that is, by applying the ratio of the 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. All interest payable under this
Note is computed using this method.
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 based on a year of 360 days. 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, 2009 Agreement as
amended.
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Adverse
Change. A material adverse change occurs in
Borrower's financial
condition.
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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 federal law applicable to Lender and,
to the extent not preempted by federal law, the laws of the State of Oklahoma
without regard to its conflicts of law provisions. 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.
| PROMISSORY NOTE | ||
| Loan No: 52969000002 | (Continued) | Page 2 |
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 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, 2008 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
