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Subscribers | 1999 |
Credit Agreement
Credit Agreement (329K)
Doc #109023: Click preview link for longer preview.
================================================================================
CREDIT AGREEMENT
Dated as of November 25, 1997
among
EQUISTAR CHEMICALS, LP, as Borrower
MILLENNIUM AMERICA INC., as Guarantor,
and
THE LENDERS PARTY HERETO
================================================================================
[CS&M Ref. No. 4408-140]
{PAGE}
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Definitions............................................. 1
SECTION 1.02. Accounting Terms........................................ 21
SECTION 1.03. Terms Generally......................................... 22
SECTION 1.04. Classification of Loans and Borrowings.................. 22
ARTICLE II
The Loans
SECTION 2.01. Commitments............................................. 22
SECTION 2.02. Loans................................................... 22
SECTION 2.03. Competitive Bid Procedure............................... 25
SECTION 2.04. Notice of Borrowings.................................... 27
SECTION 2.05. Conversions and Continuations........................... 28
SECTION 2.06. Swingline Loans......................................... 29
SECTION 2.07. Letters of Credit....................................... 31
SECTION 2.08. Fees.................................................... 36
SECTION 2.09. Repayment of Loans; Evidence of Debt.................... 37
SECTION 2.10. Interest on Loans....................................... 38
SECTION 2.11. Interest on Overdue Amounts; Alternative Rate
of Interest............................................ 39
SECTION 2.12. Termination and Reduction of Commitments................ 40
SECTION 2.13. Prepayment of Loans..................................... 41
SECTION 2.14. Reserve Requirements; Change in Circumstances........... 41
SECTION 2.15. Change in Legality...................................... 44
SECTION 2.16. Indemnity............................................... 45
SECTION 2.17. Pro Rata Treatment...................................... 46
SECTION 2.18. Sharing of Setoffs...................................... 46
SECTION 2.19. Taxes................................................... 47
SECTION 2.20. Duty to Mitigate; Assignment of Commitments Under
Certain Circumstances................................. 49
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2
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization............................................ 50
SECTION 3.02. Authorization........................................... 50
SECTION 3.03. Absence of Conflicts.................................... 50
SECTION 3.04. Governmental Approvals.................................. 51
SECTION 3.05. Enforceability.......................................... 51
SECTION 3.06. Financial Statements.................................... 51
SECTION 3.07. Material Adverse Effect................................. 52
SECTION 3.08. Litigation.............................................. 52
SECTION 3.09. Compliance with Laws and Agreements..................... 53
SECTION 3.10. Federal Reserve Regulations............................. 53
SECTION 3.11. Tax Returns............................................. 53
SECTION 3.12. Employee Benefit Plans.................................. 53
SECTION 3.13. Accuracy of Information................................. 54
SECTION 3.14. Investment Company Act; Public Utility Holding
Company Act........................................... 54
SECTION 3.15. Environmental and Safety Matters........................ 54
SECTION 3.16. Title to Properties..................................... 55
SECTION 3.17. Senior Ranking.......................................... 55
SECTION 3.18 Representations of MAI.................................. 55
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Borrowings.......................................... 55
SECTION 4.02. Effective Date.......................................... 57
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence............................................... 59
SECTION 5.02. Businesses and Properties............................... 59
SECTION 5.03. Insurance............................................... 59
SECTION 5.04. Taxes................................................... 59
SECTION 5.05. Financial Statements, Reports, etc...................... 59
SECTION 5.06. Litigation and Other Notices............................ 61
SECTION 5.07. ERISA................................................... 61
SECTION 5.08. Access to Premises and Records.......................... 62
SECTION 5.09. Compliance with Laws.................................... 62
SECTION 5.10. Environmental Compliance................................ 62
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ARTICLE VI
Negative Covenants
SECTION 6.01. Liens................................................... 63
SECTION 6.02. Sale and Leaseback Transactions......................... 66
SECTION 6.03. Subsidiary Indebtedness and Preferred Stock............. 67
SECTION 6.04. Leverage Ratio.......................................... 67
SECTION 6.05. Interest Coverage Ratio................................. 67
SECTION 6.06. Consolidations, Mergers, Sales of Assets................ 67
SECTION 6.07. Change of Business...................................... 68
SECTION 6.08. Use of Proceeds......................................... 69
SECTION 6.09. Restrictive Agreements.................................. 69
ARTICLE VII
Events of Default........................... 69
ARTICLE VIII
Administrative Agents......................... 73
ARTICLE IX
Guarantee............................... 76
ARTICLE X
Miscellaneous
SECTION 10.01. Notices................................................ 77
SECTION 10.02. No Waivers; Amendments................................. 79
SECTION 10.03. Payments............................................... 80
SECTION 10.04. Governing Law; Submission to Jurisdiction.............. 80
SECTION 10.05. Expenses; Documentary Taxes; Indemnity................. 81
SECTION 10.06. Survival of Agreements, Representations and
Warranties, etc....................................... 82
SECTION 10.07. Successors and Assigns................................. 82
SECTION 10.08. Right of Setoff........................................ 86
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SECTION 10.09. Severability........................................... 87
SECTION 10.10. Cover Page, Table of Contents and Section Headings..... 87
SECTION 10.11. Counterparts; Effectiveness............................ 87
SECTION 10.12. WAIVER OF JURY TRIAL................................... 87
SECTION 10.13. Entire Agreement....................................... 88
SECTION 10.14 Confidentiality........................................ 87
SECTION 10.15. Limitation on Recourse to General Partners; Pari Passu
Obligations............................................ 88
Schedules
Schedule 2.01 Lenders' Commitments
Exhibits
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Revolving Borrowing Request
Exhibit C-1 Form of Competitive Bid Request
Exhibit C-2 Form of Notice of Competitive Bid Request
Exhibit C-3 Form of Competitive Bid
Exhibit C-4 Form of Competitive Bid Accept/Reject Letter
Exhibit D Form of Letter of Credit Application
Exhibit E-1 Opinion of Baker & Botts L.L.P., counsel for the Borrower
Exhibit E-2 Opinion of Kerry Galvin, Esq., General Counsel
of Lyondell GP
Exhibit E-3 Opinion of George H. Hempstead, III, Esq., General
Counsel of MAI
{PAGE}
CREDIT AGREEMENT dated as of November 25, 1997, among
EQUISTAR CHEMICALS, LP, a Delaware limited partnership;
MILLENNIUM AMERICA INC., a Delaware corporation, as Guarantor;
the lenders from time to time party hereto, initially consisting
of those listed on Schedule 2.01 hereto; BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION ("BofA"), as Servicing Agent and
Documentation Agent; THE CHASE MANHATTAN BANK ("Chase"), as
Syndication Agent; and BofA and Chase as administrative agents
(in such capacity, the "Administrative Agents").
The Borrower (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I) has
requested the Lenders to extend credit in order to enable it to borrow on a
revolving basis an aggregate principal amount not in excess of $1,250,000,000.
The proceeds of such Borrowings are to be used to finance a $750,000,000 payment
to Millennium at the closing of the Joint Venture, to provide working capital
availability (including the financing of $250,000,000 required by the Borrower
as a result of retention of certain accounts receivable by Millennium
Petrochemicals Inc.) and for general partnership purposes, including non-hostile
acquisitions and capital expenditures. The Lenders are willing to extend such
credit to the Borrower on the terms and subject to the conditions set forth
herein.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Revolving Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with Article
II.
{PAGE}
2
"Acceptable Subordinated Loan" shall mean any loan to the Borrower
from a Partner or an Affiliate of a Partner (other than the Borrower or a
Subsidiary), but only to the extent that (a) such loan does not mature, and no
payment, prepayment, redemption or repurchase of the principal amount thereof is
required by the terms thereof, prior to the Maturity Date and (b) such loan is
subordinated to the Obligations on terms acceptable to the Administrative
Agents.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.08(c).
"Affiliate" shall mean, with respect to any person, any other person
which directly or indirectly controls, is under common control with or is
controlled by such person. As used in this definition, "control" (including,
with correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards to the next higher 1/16th of 1%) equal to the greater of (a)
the Reference Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If for any reason the Servicing
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including, without limitation, the inability of the Servicing
Agent to obtain sufficient bids in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist.
"Applicable Lending Office" shall mean, with respect to each Lender,
(i) such Lender's domestic lending office in the case of an ABR Loan, a NIBOR
Loan or a Fixed Rate Loan or (ii) such Lender's LIBOR Lending Office in the case
of a LIBOR Loan.
"Applicable Percentage" shall mean, for any day, with respect to any
LIBOR Loan (other than any Competitive Loan) or NIBOR Loan, or with respect to
the Facility Fee, as the case may be, the applicable percentage set forth below
under the caption
109023
|
ABN AMRO Bank
As referenced in this Credit Agreement:
ABN AMRO BANK – Syndication Agent,
by /s/ Mary Elizabeth Swerz
----------------------------------------
Name: Mary Elizabeth Swerz
Title: Vice President
{PAGE}
ABN AMRO BANK N.V.,
by /s/ Micheal W. Nepveux
----------------------------------------
Name: Micheal W. Nepveux
Title: Vice President
by /
dt 45163
;
Hanson
As referenced in this Credit Agreement:
Hanson PLC) – proceeds thereof to be used by
the holders thereof to purchase American Depositary Shares of Hanson PLC) in an
aggregate outstanding principal amount (including accretion of original issue
discount) of $42,
dt 30679
;
Millennium
As referenced in this Credit Agreement:
Millennium Chemicals – Transaction.
"Maturity Date" shall mean the fifth anniversary of the Closing Date.
"Millennium" shall mean Millennium Chemicals Inc., a Delaware
corporation, and its successors and assigns.
"Millennium GP" shall mean Millennium Petrochemicals
dt 22376
;
|
 ABN AMRO Bank
As referenced in this Credit Agreement:
ABN AMRO BANK – Syndication Agent,
by /s/ Mary Elizabeth Swerz
----------------------------------------
Name: Mary Elizabeth Swerz
Title: Vice President
{PAGE}
ABN AMRO BANK N.V.,
by /s/ Micheal W. Nepveux
----------------------------------------
Name: Micheal W. Nepveux
Title: Vice President
by /
dt 45163
;
BofA
As referenced in this Credit Agreement:
BANK OF AMERICA – time to time party hereto, initially consisting
of those listed on Schedule 2.01 hereto; BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION ("BofA"), as Servicing Agent and
Documentation Agent; THE CHASE MANHATTAN
Bank of America – Attention of Joseph M. Putz
(b) If to the Administrative Agents, in all cases to:
Bank of America National Trust and Savings Association
1850 Gateway Blvd.
Concord, California 94520
Telecopy: 510-675-8500
Bank of America – of David Mills
(c) If to the Servicing Agent, in all cases to it at:
Bank of America National Trust and Savings Association
1850 Gateway Blvd.
Concord, California 94520
Telecopy: 510-675-8500
Bank of America – the Borrower
and the Administrative Agents.
(e) If to the Swingline Lender, to it at:
Bank of America National Trust and Savings Association
1850 Gateway Blvd.
Concord, California 94520
Telecopy: 510-675-8500
Bank of
America – the Lenders hereunder
shall be made to the Servicing Agent in immediately available funds at Bank of
America National Trust and Savings Association (ABA #121000358, Account #12339-
15888 and Reference: Equistar) not later
dt 39624
;
More... |
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Subscribers | 2003 |
Credit Agreement [Amended and Restated]
Credit Agreement [Amended and Restated] (13K)
Doc #173494: Click preview link for longer preview.
AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement ("Amendment"), dated as of the 15th day of December, 2003, is entered by and between Rock of Ages Kentucky Cemeteries, LLC, a Delaware limited liability company ("Seller"), and Saber Management-Kentucky, LLC, an Indiana limited liability company ("Buyer").
WHEREAS, the Seller and Saber Management, L.L.C., an Indiana limited liability company, entered into an Asset Purchase Agreement dated July 28, 2003 (the "Asset Purchase Agreement"), pursuant to which the Seller . . .
173494
| Cherokee International Corporation;
| Heller Financial, Inc.
|
| Preview
Subscribers | 2003 |
Credit Agreement [Amended and Restated No. 2]
Credit Agreement [Amended and Restated No. 2] (298K)
Doc #174077: Click preview link for longer preview.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 25, 2003
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND LC ISSUER,
PNC BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
AND
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND
SOLE BOOK MANAGER
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ARTICLE I DEFINITIONS............................................................................... 1
ARTICLE II THE CREDITS............................................................................... 14
2.1. Commitment................................................................................ 14
2.2. Required Payments; Termination............................................................ 14
2.3. Ratable Loans............................................................................. 14
2.4. Types of Advances......................................................................... 15
2.5. Commitment Fee; Reductions in Aggregate Commitment........................................ 15
2.6. Increase in Commitment.................................................................... 15
2.7. Minimum Amount of Each Advance............................................................ 17
2.8. Optional Principal Payments............................................................... 17
2.9. Method of Selecting Types and Interest Periods for New Advances........................... 17
2.10. Conversion and Continuation of Outstanding Advances....................................... 18
2.11. Changes in Interest Rate, etc............................................................. 18
2.12. Rates Applicable After Default............................................................ 19
2.13. Method of Payment......................................................................... 19
2.14. Noteless Agreement; Evidence of Indebtedness.............................................. 19
2.15. Telephonic Notices........................................................................ 20
2.16. Interest Payment Dates; Interest and Fee Basis............................................ 20
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions........... 21
2.18. Lending Installations..................................................................... 21
2.19. Non-Receipt of Funds by the Administrative Agent.......................................... 21
2.20. Facility LCs.............................................................................. 22
2.21. Replacement of Lender..................................................................... 26
2.22. Swing Line Subfacility.................................................................... 27
2.23. Limitation of Interest.................................................................... 28
ARTICLE III YIELD PROTECTION; TAXES................................................................... 29
3.1. Yield Protection.......................................................................... 29
3.2. Changes in Capital Adequacy Regulations................................................... 30
3.3. Availability of Types of Advances......................................................... 31
3.4. Funding Indemnification................................................................... 31
3.5. Taxes..................................................................................... 31
3.6. Lender Statements; Survival of Indemnity.................................................. 33
ARTICLE IV CONDITIONS PRECEDENT...................................................................... 33
4.1. Initial Advance........................................................................... 33
4.2. Each Credit Extension..................................................................... 35
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................ 35
5.1. Existence and Standing.................................................................... 35
5.2. Authorization and Validity................................................................ 36
5.3. No Conflict; Government Consent........................................................... 36
5.4. Financial Statements...................................................................... 36
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5.5. Material Adverse Change................................................................... 37
5.6. Taxes..................................................................................... 37
5.7. Litigation and Contingent Obligations..................................................... 37
5.8. Subsidiaries.............................................................................. 37
5.9. ERISA..................................................................................... 37
5.10. Accuracy of Information................................................................... 38
5.11. Regulation U.............................................................................. 38
5.12. Material Agreements....................................................................... 38
5.13. Compliance With Laws...................................................................... 38
5.14. Ownership of Properties................................................................... 38
5.15. Plan Assets; Prohibited Transactions...................................................... 38
5.16. Environmental Matters..................................................................... 38
5.17. Investment Company Act.................................................................... 39
5.18. Public Utility Holding Company Act........................................................ 39
5.19. Subordinated Indebtedness................................................................. 39
5.20. Post-Retirement Benefits.................................................................. 39
5.21. Solvency.................................................................................. 39
ARTICLE VI COVENANTS................................................................................. 40
6.1. Financial Reporting....................................................................... 40
6.2. Use of Proceeds........................................................................... 41
6.3. Notice of Default......................................................................... 41
6.4. Taxes..................................................................................... 41
6.5. Insurance................................................................................. 41
6.6. Compliance with Laws...................................................................... 42
6.7. Maintenance of Properties................................................................. 42
6.8. Books and Records......................................................................... 42
6.9. Inspection................................................................................ 42
6.10. Merger.................................................................................... 42
6.11. Sale of Assets............................................................................ 42
6.12. Liens..................................................................................... 43
6.13. Affiliates................................................................................ 44
6.14. Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities................... 44
6.15. Letters of Credit......................................................................... 44
6.16. Financial Covenants....................................................................... 44
6.17. Lines of Business......................................................................... 44
6.18. Prepayment of Debt........................................................................ 45
6.19. Future Subsidiaries....................................................................... 45
6.20. Prohibition on Granting Negative Pledges.................................................. 45
6.21. Prohibition on Granting Restrictions on Distributions..................................... 45
6.22. Prohibition on Synthetic Leases........................................................... 45
6.23. Acquisitions.............................................................................. 45
{/TABLE}
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(CONTINUED)
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ARTICLE VII DEFAULTS.................................................................................. 46
7.1. .......................................................................................... 46
7.2. .......................................................................................... 46
7.3. .......................................................................................... 46
7.4. .......................................................................................... 46
7.5. .......................................................................................... 46
7.6. .......................................................................................... 46
7.7. .......................................................................................... 47
7.8. .......................................................................................... 47
7.9. .......................................................................................... 47
7.10. .......................................................................................... 47
7.11. .......................................................................................... 47
7.12. .......................................................................................... 47
7.13. .......................................................................................... 48
7.14. .......................................................................................... 48
7.15. .......................................................................................... 48
7.16. .......................................................................................... 48
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................ 48
8.1. Acceleration; Facility LC Collateral Account.............................................. 48
8.2. Amendments................................................................................ 49
8.3. Preservation of Rights.................................................................... 50
ARTICLE IX GENERAL PROVISIONS........................................................................ 50
9.1. Survival of Representations............................................................... 50
9.2. Governmental Regulation................................................................... 50
9.3. Headings.................................................................................. 51
9.4. ENTIRE AGREEMENT.......................................................................... 51
9.5. Several Obligations; Benefits of this Agreement........................................... 51
9.6. Expenses; Indemnification................................................................. 51
9.7. Numbers of Documents...................................................................... 52
9.8. Accounting................................................................................ 52
9.9. Severability of Provisions................................................................ 52
9.10. Nonliability of Lenders................................................................... 52
9.11. Confidentiality........................................................................... 53
9.12. Nonreliance............................................................................... 53
9.13. Disclosure................................................................................ 53
9.14. Survival of Prior Agreements.............................................................. 53
ARTICLE X THE ADMINISTRATIVE AGENT.................................................................. 53
10.1. Appointment; Nature of Relationship....................................................... 53
10.2. Powers.................................................................................... 54
10.3. General Immunity.......................................................................... 54
10.4. No Responsibility for Credit Extensions, Recitals, etc.................................... 54
10.5. Action on Instructions of Lenders......................................................... 55
{/TABLE}
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(CONTINUED)
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10.6. Employment of Administrative Agents and Counsel........................................... 55
10.7. Reliance on Documents; Counsel............................................................ 55
10.8. Administrative Agent's Reimbursement and Indemnification.................................. 55
10.9. Notice of Default......................................................................... 56
10.10. Rights as a Lender........................................................................ 56
10.11. Lender Credit Decision.................................................................... 56
10.12. Successor Administrative Agent............................................................ 56
10.13. Administrative Agent and Arranger Fees.................................................... 57
10.14. Delegation to Affiliates.................................................................. 57
10.15. Co-Agents, Syndication Agent, etc......................................................... 57
ARTICLE XI SETOFF; RATABLE PAYMENTS.................................................................. 58
11.1. Setoff.................................................................................... 58
11.2. Ratable Payments.......................................................................... 58
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS......................................... 58
12.1. Successors and Assigns.................................................................... 58
12.2. Participations............................................................................ 59
12.3. Assignments............................................................................... 60
12.4. Dissemination of Information.............................................................. 61
12.5. Tax Treatment............................................................................. 62
ARTICLE XIII NOTICES................................................................................... 62
13.1. Notices................................................................................... 62
13.2. Change of Address......................................................................... 62
ARTICLE XIV COUNTERPARTS.............................................................................. 62
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.............................. 63
15.1. CHOICE OF LAW............................................................................. 63
15.2. CONSENT TO JURISDICTION................................................................... 63
15.3. WAIVER OF JURY TRIAL...................................................................... 63
15.4. Effect of Amendment and Restatement....................................................... 63
{/TABLE}
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(CONTINUED)
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EXHIBITS:
A - PRICING SCHEDULE
B - COMPLIANCE CERTIFICATE
C - ASSIGNMENT AGREEMENT
D - LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
E - NOTE
F - COMMITMENT AND ACCEPTANCE
SCHEDULES:
1 - COMMITMENTS
2 - SUBSIDIARIES AND OTHER INVESTMENTS
3 - LIENS
4 - EXISTING FACILITY LCS
{/TABLE}
v
{PAGE}
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this "Agreement") is
entered into as of March 25, 2003, by and among the banks listed on the
signature pages hereof (the "Lenders"), CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Borrower"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Syndication Agent (the "Syndication Agent"),
BANC ONE CAPITAL MARKETS, INC., as Sole Lead Arranger and Sole Book Manager (the
"Sole Lead Arranger" and/or "Sole Book Manager"), and BANK ONE, NA, as LC Issuer
and Administrative Agent (the "LC Issuer" and/or the "Administrative Agent").
RECITALS
A. The Borrower, certain lenders party thereto, the Sole Lead
Arranger and Sole Book Manager, the LC Issuer and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated as of June
30, 2001 to be effective as of July 20, 2001 (as the same has been amended,
restated or modified from time to time, the "Existing Credit Agreement").
B. The Borrower desires to amend and restate the Existing Credit
Agreement to amend certain covenants and provisions therein, and the
Administrative Agent and Lenders have agreed to such amendment, subject to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the parties
hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means (a) a borrowing hereunder, (i) made by the Lenders on
the same Borrowing Date, or (ii) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same
174077
|
Centex
As referenced in this Credit Agreement [Amended and Restated No. 2]:
CENTEX CONSTRUCTION PRODUCTS, – SECOND AMENDED/RESTATED CREDIT AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 4.2
================================================================================
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 25, 2003
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND LC ISSUER,
PNC BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
AND
_____________
CENTEX CONSTRUCTION PRODUCTS, – this "Agreement") is
entered into as of March 25, 2003, by and among the banks listed on the
signature pages hereof (the "Lenders"), CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Borrower"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Syndication Agent (the "Syndication Agent"),
BANC ONE
_____________
Centex Construction Products, – Bank One, NA, a national banking association having
its principal office in Dallas, Texas, in its individual capacity, and its
successors.
"Borrower" means Centex Construction Products, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing
_____________
CENTEX CONSTRUCTION PRODUCTS, – WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
CENTEX CONSTRUCTION PRODUCTS, INC.,
as Borrower
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: 2728 N. Harwood
Dallas, Texas 75201
Attention: Arthur R. Zunker, Jr.
Chief
_____________
Centex Construction Products, – the Credit Agreement.
5. Credit Agreement: The $250,000,000 Second Amended and Restated
Credit Agreement dated as of March 25, 2003 among
Centex Construction Products, Inc., the Lenders
party thereto, the Syndication Agent, and Bank
One, NA, as Administrative Agent.
-------------------------------
(1) Select as applicable
{PAGE}
6. Assigned
_____________
dt 109006
;
Centex
As referenced in this Credit Agreement [Amended and Restated No. 2]:
CENTEX CONSTRUCTION PRODUCTS, – SECOND AMENDED/RESTATED CREDIT AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 4.2
================================================================================
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 25, 2003
AMONG
CENTEX CONSTRUCTION PRODUCTS, INC.,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND LC ISSUER,
PNC BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
AND
_____________
CENTEX CONSTRUCTION PRODUCTS, – this "Agreement") is
entered into as of March 25, 2003, by and among the banks listed on the
signature pages hereof (the "Lenders"), CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Borrower"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Syndication Agent (the "Syndication Agent"),
BANC ONE
_____________
Centex Construction Products, – Bank One, NA, a national banking association having
its principal office in Dallas, Texas, in its individual capacity, and its
successors.
"Borrower" means Centex Construction Products, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing
_____________
CENTEX CONSTRUCTION PRODUCTS, – WHEREOF, the Borrower, the Lenders, the LC Issuer and the
Administrative Agent have executed this Agreement as of the date first above
written.
CENTEX CONSTRUCTION PRODUCTS, INC.,
as Borrower
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: 2728 N. Harwood
Dallas, Texas 75201
Attention: Arthur R. Zunker, Jr.
Chief
_____________
Centex Construction Products, – the Credit Agreement.
5. Credit Agreement: The $250,000,000 Second Amended and Restated
Credit Agreement dated as of March 25, 2003 among
Centex Construction Products, Inc., the Lenders
party thereto, the Syndication Agent, and Bank
One, NA, as Administrative Agent.
-------------------------------
(1) Select as applicable
{PAGE}
6. Assigned
_____________
dt 109006
;
Banc One Capital
As referenced in this Credit Agreement [Amended and Restated No. 2]:
BANC ONE CAPITAL MARKETS, – PRODUCTS, INC.,
AS BORROWER,
THE LENDERS,
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND LC ISSUER,
PNC BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT,
AND
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER AND
SOLE BOOK MANAGER
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I DEFINITIONS............................................................................... 1
_____________
BANC ONE CAPITAL MARKETS, – CENTEX CONSTRUCTION PRODUCTS, INC., a
Delaware corporation (the "Borrower"), PNC BANK, NATIONAL ASSOCIATION, a
national banking association, as Syndication Agent (the "Syndication Agent"),
BANC ONE CAPITAL MARKETS, INC., as Sole Lead Arranger and Sole Book Manager (the
"Sole Lead Arranger" and/or "Sole Book Manager"), and BANK ONE, NA,
_____________
Banc One Capital Markets, – an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Sole Lead Arranger and Sole
Book Manager.
2
{PAGE}
"Article" means
_____________
dt 100659
;
|
BofA
As referenced in this Credit Agreement [Amended and Restated No. 2]:
BANK OF AMERICA, – ______________________________
Telephone: ______________________________
FAX: ______________________________
Signature Page to Second Amended and Restated Credit Agreement
{PAGE}
BANK OF AMERICA, N.A.,
as a Lender
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address: ______________________________
______________________________
Bank of America, – S} {C}
Bank One, NA 30,000,000
PNC Bank, National Association 25,000,000
Bank of America, N.A. 15,000,000
JPMorgan Chase Bank 15,000,000
Bank of Texas,
dt 40416
;
BNY
As referenced in this Credit Agreement [Amended and Restated No. 2]:
Bank of New York, – is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
dt 42389
;
More... |
| Preview
Subscribers | 2003 |
Convertible Subordinated Promissory Note
Convertible Subordinated Promissory Note (28K)
Doc #177682: Click preview link for longer preview.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER THE
APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
$50,000 May 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of FAIRPORT FINANCE
CORP. ("Payee"), the principal sum of Fifty Thousand and 00/100 Dollars
($50,000.00), together with interest thereon at a rate of five percent (5%) per
annum computed on a three hundred sixty-five (365) day year, in accordance with
the terms and subject to the conditions set forth below.
1. Payment. The principal balance of this Note and any accrued but unpaid
interest thereon shall be due and payable on April 31, 2004. Maker shall pay
accrued interest under this Note on a quarterly basis on May 1, August 1,
November 1 and February 1 of each year during the period commencing on August 1,
2003 and continuing until the entire principal balance of this Note is paid in
full. Payments of both principal and interest under this Note shall be made by
Maker to Payee in lawful money of the United States of America to Payee's
address as set forth in Section 2 below.
2. Address of Payee. Payments of principal of and interest on this Note
shall be made to Payee: 1200 East Street, Fairport Harbor, Ohio 44077, or at
such other address as Payee may designate in writing to Maker from time to time.
3. Prepayment. Maker reserves the right to prepay at any time, without
premium or penalty, all or any portion of the indebtedness evidenced hereby.
4. Conversion Feature. During the period commencing on May 1, 2003 the
date hereof and continuing until the entire principal balance of this Note is
paid in full (the "Conversion Period"), Payee shall have the right and option to
convert (the "Conversion Feature") the entire then outstanding principal balance
of this Note into Maker's common stock with a par value of $.001 per share
("Common Stock"). Upon Payee's exercise of the Conversion Feature, the
conversion price shall be Three and 50/100 Dollars ($3.50) per share, which
amount shall be subject to adjustment as provided in Section 6 below (as such
amount may be adjusted from time to time, as so adjusted, the "Conversion
Price"). The number of shares issuable upon Payee's exercise of the Conversion
Feature shall be determined by dividing the then outstanding principal balance
of this Note by the Conversion Price, which number shall be subject to
adjustment as provided in Section 6 below. To exercise the Conversion Feature,
Payee must
{PAGE}
(a) complete, execute and deliver to Maker a conversion notice in the form of
EXHIBIT A attached hereto (the "Conversion Notice") prior to the expiration of
the Conversion Period and (b) surrender the original of this Note to Maker at
such time. Upon conversion, the entire outstanding principal balance of this
Note shall be deemed paid in full by Maker. After delivery of the Conversion
Notice, Payee's exercise of the Conversion Feature shall be irrevocable except
with the written consent of Maker. The exercise of the Conversion Feature shall
be effective as of thirty (30) days after Maker's receipt of the Conversion
Notice or as of such earlier date, not sooner than Maker's receipt of the
Conversion Notice, as determined by Maker in its sole discretion.
5. Conditions to Exercise of Conversion Feature. The exercise of the
Conversion Feature and the issuance of Common Stock in connection therewith
shall, in all cases, be subject to each of the following conditions: (a) the
satisfaction of withholding tax or other withholding liabilities, (b) the
listing, registration or qualification of any to-be-issued shares upon any
securities exchange, the Nasdaq or other trading or quotation system or under
any federal or state law, (c) the consent or approval of any regulatory body,
and/or (d) any requirement by Maker that Payee take any reasonable action to
meet all applicable requirements imposed by federal and state securities laws
including providing undertakings as to the investment intent of Payee, accepting
transfer restrictions on the Common Stock and providing opinions of counsel, in
form and substance acceptable to Maker, as to the availability of exemptions
from such requirements. Maker shall, in its sole discretion, determine whether
one or more of the foregoing conditions is necessary or desirable to be
satisfied in connection with the exercise of the Conversion Feature and prior to
the delivery of Common Stock pursuant to the exercise of the Conversion Feature.
The exercise of the Conversion Feature shall not be effective unless and until
such condition(s) have been satisfied or Maker has, in its sole discretion,
waived such conditions in writing.
6. Adjustments. The Conversion Price and the number of shares of Common
Stock issuable upon exercise of the Conversion Feature shall be subject to
adjustment from time to time as provided below.
(a) Stock Dividends, Splits and Reclassifications.
(1) In General. The following events are hereinafter referred
to as "Adjustment Events": (i) Maker pays a dividend with respect to
its capital stock in shares of Common Stock; (ii) Maker subdivides
its outstanding shares of Common Stock; (iii) Maker combines its
outstanding shares of Common Stock into a smaller number of shares
of any class of Common Stock; (iv) Maker issues any shares of its
capital stock in a reclassification of Common Stock (including any
such reclassification in connection with a merger, consolidation or
other business combination in which Maker is the surviving entity),
or; (v) any other corporate action which results in the issuance of
an interest which is or could become a share of Maker. If an
Adjustment Event occurs, the number of shares of Common Stock
issuable upon exercise of the Conversion Feature immediately prior
to the record date for such Adjustment Event shall be adjusted so
that Payee shall thereafter be entitled to receive the number of
shares of Common Stock that Payee would have owned, or would have
been entitled to receive, after the happening of such Adjustment
Event if the Conversion Feature had been exercised immediately prior
to the happening of such Adjustment Event or any record date with
respect thereto. An adjustment made pursuant to this Section 6(a)(1)
shall become effective immediately after the effective date of such
177682
|
American Stone
As referenced in this Convertible Subordinated Promissory Note:
AMERICAN STONE INDUSTRIES, – SUBORDINATED PROMISSORY NOTE
$50,000 May 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of FAIRPORT FINANCE
American Stone Industries, – or facsimile number as Maker may designate in writing
to Payee from time to time:
American Stone Industries, Inc.
Attn: Russell Ciphers, Sr., President and Chief Executive Officer
8705 Quarry Road
Amherst,
AMERICAN STONE INDUSTRIES, – WHEREOF, Maker has executed this Note as of the day and year
first written above.
AMERICAN STONE INDUSTRIES, INC.
By: /s/ Russell Ciphers
--------------------------------------------
Name: Russell Ciphers, Sr.
Title: President and Chief Executive
American Stone Industries, – NOTICE
NOTICE OF EXERCISE OF CONVERSION FEATURE
UNDER
$ 50,000 CONVERTIBLE SUBORDINATED PROMISSORY NOTE
To: American Stone Industries, Inc. ("Maker")
From: Fairport Finance Corp. ("Payee")
Date: May 1, 2003
Pursuant to the
dt 30639
;
| Fairport Finance Corp.
|
| Preview
Subscribers | 2003 |
Convertible Subordinated Promissory Note
Convertible Subordinated Promissory Note (28K)
Doc #177683: Click preview link for longer preview.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER THE
APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
$10,000 May 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of the MALE FAMILY
LIMITED PARTNERSHIP, ("Payee"), the principal sum of Ten Thousand and 00/100
Dollars ($10,000.00), together with interest thereon at a rate of five percent
(5%) per annum computed on a three hundred sixty-five (365) day year, in
accordance with the terms and subject to the conditions set forth below.
1. Payment. The principal balance of this Note and any accrued but unpaid
interest thereon shall be due and payable on May 1, 2004. Maker shall pay
accrued interest under this Note on a quarterly basis on May 1, August 1,
November 1 and February 1 of each year during the period commencing on August 1,
2003 and continuing until the entire principal balance of this Note is paid in
full. Payments of both principal and interest under this Note shall be made by
Maker to Payee in lawful money of the United States of America to Payee's
address as set forth in Section 2 below.
2. Address of Payee. Payments of principal of and interest on this Note
shall be made to Payee: 30000 Aurora Road, Solon, Ohio 44139, or at such other
address as Payee may designate in writing to Maker from time to time.
3. Prepayment. Maker reserves the right to prepay at any time, without
premium or penalty, all or any portion of the indebtedness evidenced hereby.
4. Conversion Feature. During the period commencing on May 1, 2003 the
date hereof and continuing until the entire principal balance of this Note is
paid in full (the "Conversion Period"), Payee shall have the right and option to
convert (the "Conversion Feature") the entire then outstanding principal balance
of this Note into Maker's common stock with a par value of $.001 per share
("Common Stock"). Upon Payee's exercise of the Conversion Feature, the
conversion price shall be Three and 50/100 Dollars ($3.50) per share, which
amount shall be subject to adjustment as provided in Section 6 below (as such
amount may be adjusted from time to time, as so adjusted, the "Conversion
Price"). The number of shares issuable upon Payee's exercise of the Conversion
Feature shall be determined by dividing the then outstanding principal balance
of this Note by the Conversion Price, which number shall be subject to
adjustment as provided in Section 6 below. To exercise the Conversion Feature,
Payee must
{PAGE}
(a) complete, execute and deliver to Maker a conversion notice in the form of
EXHIBIT A attached hereto (the "Conversion Notice") prior to the expiration of
the Conversion Period and (b) surrender the original of this Note to Maker at
such time. Upon conversion, the entire outstanding principal balance of this
Note shall be deemed paid in full by Maker. After delivery of the Conversion
Notice, Payee's exercise of the Conversion Feature shall be irrevocable except
with the written consent of Maker. The exercise of the Conversion Feature shall
be effective as of thirty (30) days after Maker's receipt of the Conversion
Notice or as of such earlier date, not sooner than Maker's receipt of the
Conversion Notice, as determined by Maker in its sole discretion.
5. Conditions to Exercise of Conversion Feature. The exercise of the
Conversion Feature and the issuance of Common Stock in connection therewith
shall, in all cases, be subject to each of the following conditions: (a) the
satisfaction of withholding tax or other withholding liabilities, (b) the
listing, registration or qualification of any to-be-issued shares upon any
securities exchange, the Nasdaq or other trading or quotation system or under
any federal or state law, (c) the consent or approval of any regulatory body,
and/or (d) any requirement by Maker that Payee take any reasonable action to
meet all applicable requirements imposed by federal and state securities laws
including providing undertakings as to the investment intent of Payee, accepting
transfer restrictions on the Common Stock and providing opinions of counsel, in
form and substance acceptable to Maker, as to the availability of exemptions
from such requirements. Maker shall, in its sole discretion, determine whether
one or more of the foregoing conditions is necessary or desirable to be
satisfied in connection with the exercise of the Conversion Feature and prior to
the delivery of Common Stock pursuant to the exercise of the Conversion Feature.
The exercise of the Conversion Feature shall not be effective unless and until
such condition(s) have been satisfied or Maker has, in its sole discretion,
waived such conditions in writing.
6. Adjustments. The Conversion Price and the number of shares of Common
Stock issuable upon exercise of the Conversion Feature shall be subject to
adjustment from time to time as provided below.
(a) Stock Dividends, Splits and Reclassifications.
(1) In General. The following events are hereinafter referred
to as "Adjustment Events": (i) Maker pays a dividend with respect to
its capital stock in shares of Common Stock; (ii) Maker subdivides
its outstanding shares of Common Stock; (iii) Maker combines its
outstanding shares of Common Stock into a smaller number of shares
of any class of Common Stock; (iv) Maker issues any shares of its
capital stock in a reclassification of Common Stock (including any
such reclassification in connection with a merger, consolidation or
other business combination in which Maker is the surviving entity),
or; (v) any other corporate action which results in the issuance of
an interest which is or could become a share of Maker. If an
Adjustment Event occurs, the number of shares of Common Stock
issuable upon exercise of the Conversion Feature immediately prior
to the record date for such Adjustment Event shall be adjusted so
that Payee shall thereafter be entitled to receive the number of
shares of Common Stock that Payee would have owned, or would have
been entitled to receive, after the happening of such Adjustment
Event if the Conversion Feature had been exercised immediately prior
to the happening of such Adjustment Event or any record date with
respect thereto. An adjustment made pursuant to this Section 6(a)(1)
shall become effective immediately after the effective date of such
177683
|
American Stone
As referenced in this Convertible Subordinated Promissory Note:
AMERICAN STONE INDUSTRIES, – SUBORDINATED PROMISSORY NOTE
$10,000 May 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of the MALE
American Stone Industries, – or facsimile number as Maker may designate in
writing to Payee from time to time:
American Stone Industries, Inc.
Attn: Russell Ciphers, Sr., President and Chief Executive Officer
8705 Quarry Road
Amherst,
AMERICAN STONE INDUSTRIES, – WHEREOF, Maker has executed this Note as of the day and year
first written above.
AMERICAN STONE INDUSTRIES, INC.
By: /s/ Russell Ciphers
------------------------------------------
Name: Russell Ciphers, Sr.
Title: President and Chief Executive
American Stone Industries, – NOTICE
NOTICE OF EXERCISE OF CONVERSION FEATURE
UNDER
$ 10,000 CONVERTIBLE SUBORDINATED PROMISSORY NOTE
To: American Stone Industries, Inc. ("Maker")
From: Male Family Limited Partnership ("Payee")
Date: May 1, 2003
Pursuant to
dt 30640
;
| Male Family Limited Partnership
|
| Preview
Subscribers | 2003 |
Convertible Subordinated Promissory Note
Convertible Subordinated Promissory Note (28K)
Doc #177684: Click preview link for longer preview.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER THE
APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
$50,000 April 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of MICHAEL J. MEIER
("Payee"), the principal sum of Fifty Thousand and 00/100 Dollars ($50,000.00),
together with interest thereon at a rate of five percent (5%) per annum computed
on a three hundred sixty-five (365) day year, in accordance with the terms and
subject to the conditions set forth below.
1. Payment. The principal balance of this Note and any accrued but unpaid
interest thereon shall be due and payable on March 31, 2004. Maker shall pay
accrued interest under this Note on a quarterly basis on April 1, July 1,
October 1 and January 1 of each year during the period commencing on July 1,
2003 and continuing until the entire principal balance of this Note is paid in
full. Payments of both principal and interest under this Note shall be made by
Maker to Payee in lawful money of the United States of America to Payee's
address as set forth in Section 2 below.
2. Address of Payee. Payments of principal of and interest on this Note
shall be made to Payee: 6521 Davis Industrial Parkway, Solon, Ohio 44139, or at
such other address as Payee may designate in writing to Maker from time to time.
3. Prepayment. Maker reserves the right to prepay at any time, without
premium or penalty, all or any portion of the indebtedness evidenced hereby.
4. Conversion Feature. During the period commencing on April 1, 2003 the
date hereof and continuing until the entire principal balance of this Note is
paid in full (the "Conversion Period"), Payee shall have the right and option to
convert (the "Conversion Feature") the entire then outstanding principal balance
of this Note into Maker's common stock with a par value of $.001 per share
("Common Stock"). Upon Payee's exercise of the Conversion Feature, the
conversion price shall be Three and 50/100 Dollars ($3.50) per share, which
amount shall be subject to adjustment as provided in Section 6 below (as such
amount may be adjusted from time to time, as so adjusted, the "Conversion
Price"). The number of shares issuable upon Payee's exercise of the Conversion
Feature shall be determined by dividing the then outstanding principal balance
of this Note by the Conversion Price, which number shall be subject to
adjustment as provided in Section 6 below. To exercise the Conversion Feature,
Payee must (a) complete, execute and deliver to Maker a conversion notice in the
form of EXHIBIT A attached hereto (the "Conversion Notice") prior to the
expiration of the Conversion Period and (b) surrender the original of this Note
to Maker at such time. Upon conversion, the entire outstanding principal balance
of this Note shall be deemed paid in full by Maker. After delivery of the
Conversion Notice, Payee's exercise of the Conversion Feature shall be
irrevocable except with the written consent of Maker. The exercise
{PAGE}
of the Conversion Feature shall be effective as of thirty (30) days after
Maker's receipt of the Conversion Notice or as of such earlier date, not sooner
than Maker's receipt of the Conversion Notice, as determined by Maker in its
sole discretion.
5.Conditions to Exercise of Conversion Feature. The exercise of the
Conversion Feature and the issuance of Common Stock in connection therewith
shall, in all cases, be subject to each of the following conditions: (a) the
satisfaction of withholding tax or other withholding liabilities, (b) the
listing, registration or qualification of any to-be-issued shares upon any
securities exchange, the Nasdaq or other trading or quotation system or under
any federal or state law, (c) the consent or approval of any regulatory body,
and/or (d) any requirement by Maker that Payee take any reasonable action to
meet all applicable requirements imposed by federal and state securities laws
including providing undertakings as to the investment intent of Payee, accepting
transfer restrictions on the Common Stock and providing opinions of counsel, in
form and substance acceptable to Maker, as to the availability of exemptions
from such requirements. Maker shall, in its sole discretion, determine whether
one or more of the foregoing conditions is necessary or desirable to be
satisfied in connection with the exercise of the Conversion Feature and prior to
the delivery of Common Stock pursuant to the exercise of the Conversion Feature.
The exercise of the Conversion Feature shall not be effective unless and until
such condition(s) have been satisfied or Maker has, in its sole discretion,
waived such conditions in writing.
6.Adjustments. The Conversion Price and the number of shares of Common
Stock issuable upon exercise of the Conversion Feature shall be subject to
adjustment from time to time as provided below.
(a)Stock Dividends, Splits and Reclassifications.
(1)In General. The following events are hereinafter referred
to as "Adjustment Events": (i) Maker pays a dividend with respect to
its capital stock in shares of Common Stock; (ii) Maker subdivides
its outstanding shares of Common Stock; (iii) Maker combines its
outstanding shares of Common Stock into a smaller number of shares
of any class of Common Stock; (iv) Maker issues any shares of its
capital stock in a reclassification of Common Stock (including any
such reclassification in connection with a merger, consolidation or
other business combination in which Maker is the surviving entity),
or; (v) any other corporate action which results in the issuance of
an interest which is or could become a share of Maker. If an
Adjustment Event occurs, the number of shares of Common Stock
issuable upon exercise of the Conversion Feature immediately prior
to the record date for such Adjustment Event shall be adjusted so
that Payee shall thereafter be entitled to receive the number of
shares of Common Stock that Payee would have owned, or would have
been entitled to receive, after the happening of such Adjustment
Event if the Conversion Feature had been exercised immediately prior
to the happening of such Adjustment Event or any record date with
respect thereto. An adjustment made pursuant to this Section 6(a)(1)
shall become effective immediately after the effective date of such
Adjustment Event retroactive to the record date, if any, for such
Adjustment Event.
(2)Adjustment of the Conversion Price. Whenever the number of
shares of Common Stock issuable upon exercise of the Conversion
Feature is adjusted pursuant to Section 6(a)(1) above, the
Conversion Price for each share of Common Stock payable upon
conversion shall be adjusted by multiplying the Conversion Price
immediately prior to such adjustment by a fraction, the numerator of
which shall be the number of shares of Common Stock issuable upon
conversion immediately prior to such adjustment, and the denominator
of which shall be the number of shares of the Common Stock so
issuable immediately thereafter.
177684
|
American Stone
As referenced in this Convertible Subordinated Promissory Note:
AMERICAN STONE INDUSTRIES, – SUBORDINATED PROMISSORY NOTE
$50,000 April 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of MICHAEL J.
American Stone Industries, – or
facsimile number as Maker may designate in writing to Payee from time to time:
American Stone Industries, Inc.
Attn: Russell Ciphers, Sr., President and Chief Executive Officer
8705 Quarry Road
Amherst,
AMERICAN STONE INDUSTRIES, – WHEREOF, Maker has executed this Note as of the day and year
first written above.
AMERICAN STONE INDUSTRIES, INC.
By: /s/ Russell Ciphers
----------------------------------------
Name: Russell Ciphers, Sr.
Title: President and Chief Executive
American Stone Industries, – NOTICE
NOTICE OF EXERCISE OF CONVERSION FEATURE
UNDER
$50,000 CONVERTIBLE SUBORDINATED PROMISSORY NOTE
To: American Stone Industries, Inc. ("Maker")
From: Michael J. Meier ("Payee")
Date: April 1, 2003
Pursuant to the
dt 30641
;
| Michael J. Meier
|
| Preview
Subscribers | 2003 |
Convertible Subordinated Promissory Note
Convertible Subordinated Promissory Note (28K)
Doc #177685: Click preview link for longer preview.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
OPINION OF COUNSEL THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER THE
APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE SUBORDINATED PROMISSORY NOTE
$25,000 April 1, 2003
Cleveland, Ohio
FOR VALUE RECEIVED, the undersigned, AMERICAN STONE INDUSTRIES, INC., a
Delaware corporation ("Maker"), promises to pay to the order of TIMOTHY I.
PANZICA ("Payee"), the principal sum of Twenty-Five Thousand and 00/100 Dollars
($25,000.00), together with interest thereon at a rate of five percent (5%) per
annum computed on a three hundred sixty-five (365) day year, in accordance with
the terms and subject to the conditions set forth below.
1. Payment. The principal balance of this Note and any accrued but unpaid
interest thereon shall be due and payable on March 31, 2004. Maker shall pay
accrued interest under this Note on a quarterly basis on April 1, July 1,
October 1 and January 1 of each year during the period commencing on July 1,
2003 and continuing until the entire principal balance of this Note is paid in
full. Payments of both principal and interest under this Note shall be made by
Maker to Payee in lawful money of the United States of America to Payee's
address as set forth in Section 2 below.
2. Address of Payee. Payments of principal of and interest on this Note
shall be made to Payee: 735 Beta Drive, Cleveland, Ohio 44143, or at such other
address as Payee may designate in writing to Maker from time to time.
3. Prepayment. Maker reserves the right to prepay at any time, without
premium or penalty, all or any portion of the indebtedness evidenced hereby.
4. Conversion Feature. During the period commencing on April 1, 2003 the
date hereof and continuing until the entire principal balance of this Note is
paid in full (the "Conversion Period"), Payee shall have the right and option to
convert (the "Conversion Feature") the entire then outstanding principal balance
of this Note into Maker's common stock with a par value of $.001 per share
("Common Stock"). Upon Payee's exercise of the Conversion Feature, the
conversion price shall be Three and 50/100 Dollars ($3.50) per share, which
amount shall be subject to adjustment as provided in Section 6 below (as such
amount may be adjusted from time to time, as so adjusted, the "Conversion
Price"). The number of shares issuable upon Payee's exercise of the Conversion
Feature shall be determined by dividing the then outstanding principal balance
of this Note by the Conversion Price, which number shall be subject to
adjustment as provided in Section 6 below. To exercise the Conversion Feature,
Payee must (a) complete, execute and deliver to Maker a conversion notice in the
form of EXHIBIT A attached hereto (the "Conversion Notice") prior to the
expiration of the Conversion Period and (b) surrender the original of this Note
to Maker at such time. Upon conversion, the entire outstanding principal balance
of this Note shall be deemed paid in full by Maker. After delivery of the
Conversion Notice, Payee's exercise of the Conversion Feature shall be
irrevocable except with the written
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consent of Maker. The exercise of the Conversion Feature shall be effective as
of thirty (30) days after Maker's receipt of the Conversion Notice or as of such
earlier date, not sooner than Maker's receipt of the Conversion Notice, as
determined by Maker in its sole discretion.
5. Conditions to Exercise of Conversion Feature. The exercise of the
Conversion Feature and the issuance of Common Stock in connection therewith
shall, in all cases, be subject to each of the following conditions: (a) the
satisfaction of withholding tax or other withholding liabilities, (b) the
listing, registration or qualification of any to-be-issued shares upon any
securities exchange, the Nasdaq or other trading or quotation system or under
any federal or state law, (c) the consent or approval of any regulatory body,
and/or (d) any requirement by Maker that Payee take any reasonable action to
meet all applicable requirements imposed by federal and state securities laws
including providing undertakings as to the investment intent of Payee, accepting
transfer restrictions on the Common Stock and providing opinions of counsel, in
form and substance acceptable to Maker, as to the availability of exemptions
from such requirements. Maker shall, in its sole discretion, determine whether
one or more of the foregoing conditions is necessary or desirable to be
satisfied in connection with the exercise of the Conversion Feature and prior to
the delivery of Common Stock pursuant to the exercise of the Conversion Feature.
The exercise of the Conversion Feature shall not be effective unless and until
such condition(s) have been satisfied or Maker has, in its sole discretion,
waived such conditions in writing.
6. Adjustments. The Conversion Price and the number of shares of Common
Stock issuable upon exercise of the Conversion Feature shall be subject to
adjustment from time to time as provided below.
(a) Stock Dividends, Splits and Reclassifications.
(1) In General. The following events are hereinafter referred
to as "Adjustment Events": (i) Maker pays a dividend with respect to
its capital stock in shares of Common Stock; (ii) Maker subdivides
its outstanding shares of Common Stock; (iii) Maker combines its
outstanding shares of Common Stock into a smaller number of shares
of any class of Common Stock; (iv) Maker issues any shares of its
capital stock in a reclassification of Common Stock (including any
such reclassification in connection with a merger, consolidation or
other business combination in which Maker is the surviving entity),
or; (v) any other corporate action which results in the issuance of
an interest which is or could become a share of Maker. If an
Adjustment Event occurs, the number of shares of Common Stock
issuable upon exercise of the Conversion Feature immediately prior
to the record date for such Adjustment Event shall be adjusted so
that Payee shall thereafter be entitled to receive the number of
shares of Common Stock that Payee would have owned, or would have
been entitl |