Contract
EXHIBIT
10.1(d)
| Xxxx X. Xxxxxxxxxxxx | |
| Senior Vice President | |
| 000-000-0000 | |
| FAX: 000-000-0000 | |
| Xxxxxxxxxxxxx@xxxx.xxx |
January 1, 2006
Xx. Xxxxx Xxx
Chief Financial Officer
The Monarch Cement Company
000 0000 Xxxxxx
Xxxxxxxx, XX 00000
RE: Fourth 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 and Third Amendment dated December 31,
2004.
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 ("Fourth Amendment'). Subject to the terms
of the Loan Agreement, as amended, and this Fourth Amendment, the Commitment will be: 1) a
$25,000,000 Term Loan ('Term Loan') with a balance as of December 27, 2005 of $23,613,405.13 and
2) a $10,000,000 Revolving Line of Credit ("Revolving Line") that is a renewal of the $10,000,000
Revolving Line subject to the terms of
this letter amendment ('Fourth 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
$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, 2006 (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 1.00%. The outstanding principal balance plus accrued
interest shall be payable at maturity date of December 31, 2006.
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 Fourth 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
$10,000,000.00
|
Loan
Date
01-01-2006
|
Maturity
12-31-2006
|
Loan
No
00000000000
|
Call
/ Coll
|
Account
|
Officer
071
|
Initials
|
|
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 | Healthcare Banking - 0xx Xxxxx | ||
| Xxxxxxxx, XX 00000-0000 | X.X. Xxx 0000 | ||
| Xxxxx, XX 00000 |
| Principal Amount:$10,000,000.00 | Initial Rate: 6.250% | Date of Note: January 1, 2006 |
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 Ten Million & 00/100 Dollars
($10,000,000.00) 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, 2006. In addition, Borrower will pay
regular quarterly payments of all accrued unpaid interest due as of each payment
date, beginning March 31, 2006, 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; then to any late charges; 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 of this Note will be at a
rate of 1.000 percentage point under the Index, resulting in an initial rate of
6.250% 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.
LATE CHARGE. If a payment is 15 days or more
late, Borrower will be charged $50.00.
INTEREST
AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 18.000% per annum. The
interest rate will not exceed the maximum rate permitted by applicable
law.
DEFAULT.
Each of the following shall constitute an event of default ("Event of Default")
under this Note:
|
|
Payment
Default. Borrower fails to make any
payment when due under this Note.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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 January 1, 2001 Agreement, as
amended.
|
|
|
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 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
| PROMISSORY NOTE | ||
| Loan No: 52969000002 | (Continued) | Page 2 |
such accounts.
COLLATERAL.
This loan is
unsecured.
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. Lender will have no obligation to advance funds under this
Note if: (A) Borrower or any guarantor is in default under the terms of this
Note or any agreement that Borrower or any guarantor has with Lender, including
any agreemeent made in connection with the signing of this Note; (B) Borrower or
any guarantor ceases doing business or is insolvent; (C) any guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such guarantor's
guarantee of this Note or any other loan with Lender; (D) Borrower has applied
funds provided pursuant to this Note for purposes other than those authorized by
Lender. 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 January 1,
2005, in the principal amount of $10,000,000.00, 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. 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
