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EXHIBIT 10.2
LOAN AGREEMENT
BY AND BETWEEN
NAYLOR CONCRETE AND CONSTRUCTION COMPANY, INC.
AND
THE ALLIANCE GROUP, INC.
JANUARY 5, 1999
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LOAN AGREEMENT
THIS AGREEMENT is entered into effective January 5, 1999, by and among
Naylor Concrete and Construction Company, Inc. ("Lender") and The Alliance
Group, Inc. ("Borrower").
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Loan.
1.1 Credit. Subject to the terms and conditions of this
Agreement, Lender hereby agrees to lend from time-to-time in one or more
advances to Borrower, and Borrower will borrow from time-to-time in one or more
advances from Lender, funds necessary for working capital and for the payment of
expenses incurred to consummate certain acquisitions by Borrower and Borrower's
initial public offering (the "Loan") on the terms described herein.
1.2 Payment Terms. Interest will accrue on the outstanding
principal balance of the Loan at the rate of 10% per annum. All outstanding
principal and interest on the Loan will be paid at the earlier to occur of (i)
thirty (30) business days following the closing of Borrower's initial public
offering, or (ii) December 31, 1999. The payment of principal and interest shall
be applied first to the payment of interest at the foregoing rate on the unpaid
principal and the balance, if any, shall be applied to the principal sum.
1.3 Default Interest. Any sum not paid on or before its due
date will bear interest at the rate of twelve percent (12%) per annum, and such
interest which has accrued will be paid at the time of and as a condition
precedent to the curing of any default hereunder. During the existence of any
such default, Lender may apply payments received on any amount due hereunder or
under the terms of any instrument now or hereafter evidencing or securing said
indebtedness as said holder may determine.
1.4 Other Terms.
(a) Borrower agrees that if, and as often as, Lender
hires an attorney to collect balances due under the Loan or to defend or enforce
any of the Lender's rights hereunder, Borrower will pay to Lender its reasonable
attorney's fees and all court costs and other expenses incurred in connection
therewith, whether or not an action shall be instituted to enforce this
Agreement.
(b) This Loan is given for business purposes and not
for personal, residential or agricultural purposes.
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(c) For purposes of computing interest on the Loan,
payments of all or any portion of the principal sum owing under the Loan will
not be deemed to have been made until such principal payments are received by
Lender in collected funds.
(d) Borrower shall have the right, at any time and
from time to time, to prepay in full or in part the unpaid principal of the
Loan, without premium or penalty, but with interest to the date of prepayment on
the amount prepaid.
(e) The makers, endorsers, sureties, guarantors and
all persons who may become liable for all or any part of this obligation
severally waive presentment for payment, protest and notice of nonpayment. Said
parties consent to any extension of time (whether one or more) of payment
hereof, release of all or any part of the security for the payment hereof and
the release of any party liable for payment of this obligation. Any such
extension of time or release may be made at any time and from time to time
without notice of any such party and without discharging said party's liability
hereunder.
2. Events of Default and Their Effect.
2.1 Events of Default. Each of the following shall constitute
an Event of Default under this Agreement:
(a) Non-Payment. Default in the payment when due of
any principal of, or interest on, the Loan.
(b) Bankruptcy, Insolvency, Etc. Borrower becomes
insolvent or generally fails to pay, or admits in writing his inability to pay,
debts as they become due; or Borrower applies for, consents to, or acquiesces in
the appointment of a trustee, receiver, or other custodian for Borrower or any
property of Borrower, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent, or acquiescence, a
trustee, receiver, or other custodian is appointed for Borrower or for a
substantial part of the property of Borrower and is not discharged within 30
days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law or any dissolution or
liquidation proceeding is commenced in respect of Borrower, and if such case or
proceeding is not commenced by Borrower, it is consented to or acquiesced in by
Borrower, or remains for 30 days undismissed; or Borrower takes any action to
authorize, or in furtherance of, any of the foregoing.
(c) Breach of Agreement. Failure by Borrower to
comply with or to perform any of its obligations under this Agreement.
2.2 Effect of Event of Default. If any Event of Default
described in Section 2.1 occurs, Lender may declare the Loan to be immediately
due and payable in full, and in such event, the outstanding principal and
interest due under the Loan shall become immediately due and payable, without
notice of any kind. In addition to any rights now or hereafter available
hereunder or under
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law, Lender may set off and apply any deposits, rebates, or other amounts held
by Lender for Borrower. The effect of an Event of Default may be waived by
Lender, but only by a written document signed by Lender.
3. General.
3.1 Waiver; Amendments. No delay on the part of Lender in the
exercise of any right, power, or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by Lender of any right, power or remedy
preclude other or further exercise thereof or the exercise of any other right,
power or remedy. No amendment or modification of this Agreement shall be
effective unless it is in writing and signed by Lender and Borrower. No waiver,
or consent of Lender with respect to any waiver, of any provision hereof shall
in any event be effective unless it is in writing and signed and delivered by
Lender, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
3.2 Captions. Paragraph captions used in this Agreement are
for convenient reference only, and shall not affect the interpretation of this
Agreement.
3.3 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Oklahoma. All
obligations of Borrower and rights of Lender expressed herein shall be in
addition to, and not in limitation of, those provided by applicable law.
3.4 Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, Lender and Borrower and their respective legal
representatives, successors, and assigns. Borrower may not assign its rights
under this Agreement.
3.5 No Third Party Beneficiaries. Nothing in this Agreement is
intended to confer any rights upon any person, other than Lender and Borrower.
3.6 Severability. If any provision in or obligation of any of
this Agreement shall be invalid, illegal, or unenforceable in any jurisdiction,
the validity, legality, and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
3.7 Counterparts. This Agreement and any amendments, waivers,
consents, or supplements may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same agreement. This
Agreement shall become effective upon the execution and delivery of a
counterpart by each of the parties.
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3.8 Time of the Essence. Time shall be of the essence with
respect to the performance by the parties of their obligations under this
Agreement.
3.9 Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties relative to the subject matter
hereof and supersedes all previous oral or written understandings and agreements
concerning the Loan.
3.10 Delay in Performance. Borrower shall not be deemed to be
in default in the time of performance of its obligation under this Agreement
where Borrower's delay is solely the result of the wrongful act or omission of
Lender. The foregoing shall not apply to any obligation of Borrower for the
payment of money.
3.11 Arbitration. All disputes between Lender and Borrower
shall be resolved by arbitration as provided in this section. This agreement to
arbitrate shall survive the rescission or termination of this Agreement. All
arbitration shall be conducted pursuant to the Commercial Arbitration Rules of
the American Arbitration Association except as herein may be provided. The
decision of the arbitrators shall be final and binding on all parties. All
arbitration shall be conducted in Oklahoma City, Oklahoma, and shall be
undertaken pursuant to the Federal Arbitration Act, where applicable, and the
decision of the arbitrators shall be enforceable in any court of competent
jurisdiction.
In any dispute where a party seeks $50,000 or more in damages, three
arbitrators shall be employed. All costs attendant to the arbitration, excluding
attorney's and expert's fees, shall be borne equally by the parties. Each party
shall bear its own attorney's and expert's fees. The arbitrators shall not award
punitive, consequential, or indirect damages. Each party hereby waives the right
to such damages and agrees to receive only those actual damages directly
resulting from the claim asserted. In resolving all disputes between the
parties, the arbitrators shall apply the law of the State of Oklahoma, except as
may be modified by this Agreement. The arbitrators are by this Agreement
directed to conduct the arbitration hearing no later than three months from the
service of the statement of claim and demand for arbitration unless good cause
is shown establishing that the hearing cannot fairly and practically be so
convened.
Except as needed for presentation in lieu of a live appearance,
depositions shall not be taken. Parties shall be entitled to conduct document
discovery by requesting production of documents. Responses or objections shall
be served twenty days after receipt of a request. The arbitrators shall resolve
any discovery disputes by such prehearing conferences as may be needed. All
parties agree that the arbitrators and any counsel of record to the proceeding
shall have the power of subpoena process as provided by law.
The parties are in a debtor/creditor relationship. The parties
recognize that this kind of relationships could give rise to the need by one or
more of the parties for emergency judicial relief. The parties agree that either
shall be entitled to pursue emergency or preliminary injunctive relief in any
court of competent jurisdiction, and each party agrees that it shall consent to
the stay of such
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judicial proceedings on the merits of both this Agreement and any related
transactions pending arbitration of all underlying claims between the parties
immediately following the issuance of any such emergency or injunctive relief.
DATED as of the day and year first written above.
LENDER: NAYLOR CONCRETE AND CONSTRUCTION
COMPANY, INC.
By:
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Ricky Naylor, President
BORROWER: THE ALLIANCE GROUP, INC.
By:
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