Bershunda J. Burnett Vice President 918-588-6425 FAX: 918-295-0400 bburnett@bokf.com
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 |
