EXHIBIT 10 (f)
AMENDMENT A
TO
EIGHTH AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT A TO EIGHTH AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is made as of February 25, 2000, between BANK OF AMERICA, N.A.,
a national banking association (the "Bank"), and PEERLESS MFG. CO., a Texas
corporation (the "Borrower").
R E C I T A L S:
A. The Borrower and the Bank are parties to that certain Eighth
Amended and Restated Loan Agreement dated as of December 12, 1999 (the
"Existing Loan Agreement").
B. The Borrower and the Bank have agreed to amend the Existing Loan
Agreement as hereinafter provided (i) to increase the revolving facility on
a temporary basis by $2,000,000 to $5,500,000, (ii) to provide an
alternative rate of interest which may be selected by the Borrower, (iii) to
make various other changes necessary to effect the foregoing, and (iv) to
execute a new note in connection with such amendments.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Bank and the Borrower agree as follows:
1.0 Same Terms. All terms used herein which are defined in the
Existing Loan Agreement shall have the same meanings when used herein,
unless the context hereof otherwise requires or provides. In addition, all
references in the Loan Documents to the "Agreement" shall mean the Existing
Loan Agreement, as amended by this Amendment, and as the same shall
hereafter be amended from time to time. All references to the "Line" and
the "Note" in the Existing Loan Agreement and the other Loan Documents shall
mean the "Line" and the "Line of Credit Note," each as defined in this
Amendment. In addition, the following terms have the meanings set forth
below:
"Affiliate:" See Section 2.2 of this Amendment.
"Affiliate Loan Agreement:" See Section 2.2 of this Amendment.
"Effective Date" means February 25, 2000, or such later date as
the Borrower has satisfied the conditions precedent specified in Section 3.0
of this Amendment.
"Origination Fee:" See Section 2.2 of this Amendment.
"Reduction Date:" See Section 2.2 of this Amendment.
2.0 Amendments to Existing Loan Agreement. On the Effective Date, the
Existing Loan Agreement shall be deemed to be amended as follows:
2.1 Amendment to Section 2.A.i. Section 2.A of the Existing Loan Agreement
shall be amended to delete the current text thereof and insert in lieu
thereof the following:
A. Loan. Until the Reduction Date specified in
subsection v hereof, Bank hereby agrees to make (or has
made) one or more loans to Borrower in the aggregate
principal face amount of $5,500,000 (as such amount may
be reduced, the "Line"), provided that the aggregate
unpaid principal amount of all loans shall not at any
time exceed the difference between (i) the Line, minus
(ii) the undrawn amount of all outstanding Letters of
Credit, minus (iii) the amount of all drawings under any
Letter of Credit for which Bank has not been reimbursed.
The obligation to repay the loans is evidenced by the
promissory note dated February 25, 2000 (the "Line of
Credit Note" or "Note," together with any and all
renewals, extensions, or rearrangements thereof being
hereafter collectively referred to as the "Note"),
having a maturity date, repayment terms, and interest
rate as set forth in the Note (a copy of which is
attached as Exhibit A.
2.2 Amendment to Section 2. Section 2.A of the Existing Loan Agreement is
hereby amended to insert following Section 2.A.iii and preceding Section 3
thereof the following:
iv. Origination/Commitment Fee. Borrower will pay
on the Effective Date an origination/commitment fee of
$20,000 (the "Origination Fee"). If Borrower or any
affiliate of Borrower acceptable to Bank (such affiliate
being called the "Affiliate") enters into a loan
agreement with Bank for an amount not in excess of
$2,000,000 and on terms otherwise acceptable to Bank in
its sole discretion (the "Affiliate Loan Agreement")
within sixty (60) days from the Effective Date, the
Origination Fee shall be credited to any origination or
similar fee required to be paid by Borrower or the
Affiliate under the terms of such other loan agreement.
v. Reduction of Line. The Line shall be reduced
to $3,500,000 on the day (the "Reduction Date") which is
the earlier of the sixtieth (60th) day following the
Effective Date or the date on which Bank and Borrower or
the Affiliate enter into the Affiliate Loan Agreement.
2.3 Amendment to Section 5.A.ii. Section 5.A.ii of the Existing Loan
Agreement shall be amended to delete the current text thereof in its
entirety and insert in lieu thereof the following:
ii. Borrower shall not permit Net Income to be
less than $1,100,000 during any period of four (4)
consecutive calendar quarters.
3.0 Conditions Precedent. The transactions contemplated by this Amendment
shall be deemed effective on the Effective Date when the following
conditions have been complied with to the satisfaction of the Bank, unless
waived by the Bank in writing:
3.1 Origination Fee and Other Fees. The Borrower has paid the Bank the
Origination Fee and the fees and expenses of Bank's counsel incurred in
preparing this Amendment and the other Loan Documents.
3.2 Amendment. The Borrower shall have executed and delivered to the Bank
this Amendment.
3.3 Line of Credit Note. The Borrower shall have executed and delivered to
the Bank the Line of Credit Note.
3.4 Other Documents. The Bank shall have received in form and substance
satisfactory to the Bank and its counsel such other approvals, documents,
certificates, and other instruments as the Bank in its sole discretion shall
require.
4.0 Certain Representations and Warranties. To induce the Bank to enter
into this Amendment, the Borrower represents and warrants as follows (which
representations and warranties shall survive the execution and delivery
hereof):
4.1 Authority and Compliance. The Borrower has full power and authority to
execute, deliver, and perform all of the Loan Documents to which it is a
party and to incur and perform the obligations provided for therein. No
consent or approval of any public authority or third party is required as a
condition to the validity or performance of any of the Loan Documents.
4.2 Binding Agreements. This Amendment and the Line of Credit Note
executed by the Borrower constitute valid and legally binding obligations of
the Borrower, enforceable in accordance with their terms.
4.3 No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement, or other document pertaining to the power
or authority of the Borrower and no provision of any existing agreement,
mortgage, indenture, or contract binding upon the Borrower or affecting any
of the property of the Borrower which would conflict with or in any way
prevent in any material respect the execution, delivery, or carrying out of
the terms of this Amendment and the Line of Credit Note.
4.4 Previous Representations. All of the representations by Borrower in
the Existing Loan Agreement are true and correct as of the date hereof as if
set forth herein.
5.0 Limitation on Agreements. The modifications set forth herein are
limited precisely as written and shall not be deemed (a) to be a consent
under or a waiver of or an amendment to any other term or condition of the
Existing Loan Agreement or any of the Loan Documents, or (b) to prejudice
any right or rights which the Bank now has or may in the future have under
or in connection with the Existing Loan Agreement and the Loan Documents,
each as amended hereby.
6.0 Incorporation of Certain Provisions by Reference. The provisions of
Section 10.B and Section 11 of the Existing Loan Agreement are incorporated
herein by reference for all purposes.
7.0 Entirety, Etc. This instrument and all of the other Loan Documents
embody the entire agreement between the parties. THIS AGREEMENT AND ALL OF
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Amendment A to
Eighth Amended and Restated Loan Agreement to be effective as of the
Effective Date.
BANK OF AMERICA, N.A.
By: /s/
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BO CONRAD
Title: Vice President
PEERLESS MFG. CO.
By: /s/
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Name: Sherrill Stone
Title: President