Contract
EXHIBIT
10.1(c)
December
31, 2004
Xx. Xxxxx
Xxx
Chief
Financial Officer
The
Monarch Cement Company
000 0000
Xxxxxx
Xxxxxxxx,
XX 00000
RE: Third
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 and the Second Amendment dated December 31, 2003.
Dear
Xxxxxx:
Bank of
Oklahoma, N.A. ("Lender") is pleased to renew and modify the Loan Agreement
subject to the terms of this letter amendment ("Third
Amendment"). Subject to the terms of the Loan Agreement, as amended,
and this Third Amendment, the Commitment will be: 1) a $25,000,000
Term Loan ("Term Loan") that is an increase and renewal of the $25,000,000 Term
Loan with a balance as of December 20, 2004 of $19,194,354.71 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
("Second Amendment").
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, 2009 (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 ten-year amortization, with such payments
calculated using the interest rate in effect on December 31, 2004 (4.50%),
provided however, that either Lender or Borrower may elect to recalculate the
payment installments on the 12-month anniversary of this Third 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 ten year
amortization. All outstanding principal and interest will be due and
payable on December 31, 2009.
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
..75%.
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, 2005 (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
1.00%. The outstanding principal balance plus accrued interest shall
be payable at maturity date of December 31, 2005.
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 $80,000,000
determined on the last day of any fiscal quarter commencing with the quarter
ending December 31, 2004.
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
acquired 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 Third 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 Third 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. |
Name: Xxxx Xxxxxxxxxxxx | Name: Xxxxxx X. Xxxx, Xx. |
Title: Senior Vice President | Title: President |
PROMISSORY
NOTE
Principal
$25,000,000.00
|
Loan
Date
12-31-2004
|
Maturity
12-31-2009
|
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.
|
449
1200 Street
|
Healthcare
Banking - 0xx Xxxxx
|
||
Xxxxxxxx,
XX 00000-0000
|
X.X.
Xxx 0000
|
||
Xxxxx,
XX 00000
|
Principal Amount: $25,000,000.00
|
Initial
Rate: 4.500%
|
Date
of Note: December 31,
2004
|
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
Twenty-five Million & 00/100 Dollars ($25,000,000.00), together with
interest on the unpaid principal balance from December 31, 2004, until paid in
full.
PAYMENT. Subject to any payment changes
resulting from changes in the Index, Borrower will pay this loan in
19 regular payments of $781,881.77 each and one irregular last payment
estimated at $14,694,116.11 Borrower's first payment is due March 31, 2005 and
all subsequent payments are due on the same day of each quarter after that.
Borrower's final payment will be due on December 31, 2009, and will be for all
principal and all accrued interest not yet paid. Payments include principal and
interest. 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 XX Xxxxxx Chase Bank Prime Rate (the
"Index"). The Index is not necessarily the lowest rate charged by Lender on
its loans. 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 5.250% per annum. The interest rate to be applied
to the unpaid principal balance of this Note will be at a rate of
0.750 percentage points under the Index, resulting in an initial rate of
4.500% per annum. NOTICE: Under no circumstances will the interest rate on this
Note be more than the maximum rate allowed by applicable law. Whenever
increases occur in the interest rate, Lender, at its option, may do one or more
of the following: (A) increase Borrower's payments to ensure Borrower's loan
will pay off by its original final maturity date, (B) increase Borrower's
payments to cover accruing interest, (C) increase the number of Borrower's
payments, and (D) continue Borrower's payments at the same amount and increase
Borrower's final payment.
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 under the payment schedule. Rather,
early payments will reduce the principal balance due and may result in
Borrower's making fewer payments. 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, 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
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.
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
PROMISSORY
NOTE
|
||
Loan
No: 52969000001
|
(Continued)
|
Page
2
|
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.
COLLATERAL. This loan is
unsecured.
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,
2002 in the principal amount of $25,000.000.00 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.
NOTIFY
US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate
information about your account(s) to a consumer reporting agency. Your written
notice describing the specific inaccuracy(ies) should be sent to us at the
following address: Bank of Oklahoma, N.A. X.X. Xxx 0000 Xxxxx, XX
00000-0000.
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
Principal
$10,000,000.00
|
Loan
Date
01-01-2005
|
Maturity
12-31-2005
|
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: 4.250% | Date of Note: January 1, 2005 |
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, 2005. In addition, Borrower will pay
regular quarterly payments of all accrued unpaid interest due as of each payment
date, beginning March 31, 2005, 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 XX Xxxxxx
Chase Bank Prime Rate (the "Index"). The Index is not necessarily the
lowest rate charged by Lender on its loans. 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 5.250% 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 4.250% 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.
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 such accounts.
COLLATERAL.
This loan is
unsecured.
PROMISSORY NOTE | ||
Loan No: 52969000002 | (Continued) | Page 2 |
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,
2004, 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.
NOTIFY
US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate
information about your account(s) to a consumer reporting agency. Your written
notice describing the specific inaccuracy(ies) should be sent to us at the
following address: Bank of Oklahoma, N.A. X.X. Xxx 0000 Xxxxx, XX
00000-0000.
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