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Exhibit 10(p)
Bank of America, N.A.
RENEWAL LINE OF CREDIT NOTE
Date: January 31, 2001 [ ] New [X] Renewal Amount $5,500,000.00
Initial Maturity Date: August 31, 2001
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Bank: Borrower:
Bank of America, N.A. Peerless Mfg. Co.
901 Main Street, 7th Floor 2819 Walnut Hill Lane
Dallas, Texas 75202 Dallas, Texas 75229
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FOR VALUE RECEIVED, the undersigned Borrower unconditionally (and jointly and
severally, if more than one) promises to pay to the order of Bank, its
successors and assigns, without setoff, at Bank's offices identified above or at
any other place Bank designates, the principal amount of FIVE MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($5,500,000), or so much thereof as may be
advanced from time to time in immediately available funds, together with
interest computed daily on the outstanding principal balance at an annual
interest rate, and in accordance with the payment schedule, indicated below.
1. BORROWINGS, RATE, AND PAYMENT OF INTEREST.
A. Procedure for Borrowing. Whenever Borrower desires a Loan
hereunder, Borrower shall give Bank notice in a form acceptable to Bank
(a "Borrowing Request") specifying (a) the date (which shall be a
Business Day) of the proposed borrowing, and (b) the amount to be
borrowed. Such notice shall be given by 10 a.m. (Dallas, Texas time) on
the date of the proposed borrowing. The notice required may be given
telephonically by Borrower to Bank, but upon giving such telephonic
notice Borrower shall immediately thereafter provide Bank with the
written notice required herein. All notices given under this Section
1.A. shall be irrevocable. Not later than 12 noon (Dallas, Texas time)
on the date of the proposed borrowing and upon fulfillment of all other
conditions required by this Note, Bank will make such Loan available to
Borrower by crediting the amount thereof to Borrower's account with
Bank or otherwise disbursing it as Borrower shall request in writing.
No Loans may be obtained after the Maturity Date.
B. Interest Rate . Borrower agrees to pay interest (calculated
on the basis of the actual days elapsed in a year consisting of 360
days) with respect to the unpaid principal amount of each Loan from the
date the proceeds thereof are made available to Borrower until maturity
(whether by acceleration or otherwise) at a varying rate per annum
equal to the lesser of (i) the Maximum Rate or (ii) the Prime Rate plus
two and one-half percent (2 1/2%). The interest in respect of each Loan
shall be payable on the last day of each Interest Period.
C. Interest Rate Determination . Bank shall determine each
interest rate applicable hereunder and shall give prompt notice (which
need not be in writing) to Borrower of each rate of interest so
determined.
D. Prepayment of Loans. Borrower may at any time and from
time to time prepay any Loan, in whole or in part without premium or
penalty.
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E. Schedule I. Reference is made to Schedule I attached hereto
for definitions applicable to the interest pricing options hereunder.
F. Agreement. Borrower's right to borrow hereunder is subject
to the additional terms of that certain Eighth Amended and Restated
Loan Agreement between Borrower and Bank dated as of December 12, 1999,
as amended by that certain Amendment A to Eighth Amended and Restated
Loan Agreement dated as of February 25, 2000, between Borrower and
Bank, as further amended by that certain Amendment B to Eighth Amended
and Restated Loan Agreement dated May 30, 2000, as further amended by
that certain Amendment C to Eighth Amended and Restated Loan Agreement
dated as of November 30, 2000, as further amended by Amendment D to
Eighth Amended and Restated Loan Agreement dated as of January 31, 2001
(as so amended, the "Loan Agreement"). Terms used herein which are
defined in the Loan Agreement have the same meanings set forth in the
Loan Agreement.
Notwithstanding any provision of this Note or any other agreement or commitment
between Borrower and Bank, whether written or oral, express or implied, Bank
shall never be entitled to charge, receive, or collect, nor shall amounts
received hereunder be credited so that Bank shall be paid, as interest a sum
greater than interest at the Maximum Rate. It is the intention of the parties
that the Note, and all instruments securing the payment of the Note or executed
or delivered in connection therewith, shall comply with applicable law. If Bank
ever contracts for, charges, receives or collects anything of value which is
deemed to be interest under applicable law, and if the occurrence of any
circumstance or contingency, whether acceleration of maturity of the Note,
prepayment of the Note, delay in advancing proceeds of the Note, or any other
event, should cause such interest to exceed the maximum lawful amount, any
amount which exceeds interest at the Maximum Rate shall be applied to the
reduction of the unpaid principal balance of the Note or any other indebtedness
owed to Bank by Borrower, and if the Note and such other indebtedness are paid
in full, any remaining excess shall be paid to Borrower. In determining whether
the interest exceeds interest at the Maximum Rate, the total amount of interest
shall be spread, prorated and amortized throughout the entire term of the Note
until its payment in full. The term "Maximum Rate" as used in this Note means
the maximum nonusurious rate of interest per annum permitted by whichever of
applicable United States federal law or Texas law permits the higher interest
rate, including to the extent permitted by applicable law, any amendments
thereof hereafter or any new law hereafter coming into effect to the extent a
higher Maximum Rate is permitted thereby.
To the extent, if any, that Chapter 303 of the Texas Finance Code, as amended,
(the "Act") is relevant to the Bank for purposes of determining the Maximum
Rate, the parties elect to determine the Maximum Rate under the Act pursuant to
the "weekly ceiling" from time to time in effect, as referred to and defined in
ss.303.001-303.016 of the Act; subject, however, to any right the Bank
subsequently may have under applicable law to change the method of determining
the Maximum Rate.
2. ACCRUAL METHOD. Except when interest is calculated with reference to the
Maximum Rate, interest will be calculated by the 365/360 day method (a
daily amount of interest is computed for a hypothetical year of 360 days;
that amount is multiplied by the actual number of days for which any
principal is outstanding hereunder). Interest calculated at the Maximum
Rate shall be calculated on the actual days elapsed and a year of 365 or,
if appropriate, 366 days.
3. NOTE TERM AND PAYMENT SCHEDULE. Principal is due in full in a single
payment on the Maturity Date. Total or partial prepayments may be made at
any time. If Borrower is in
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default under this Note or any of the Loan Documents, Bank may demand
payment of the balance outstanding under this Note in full immediately.
All payments will be applied first to any expense or charge due under this
Note, the Loan Agreement, or any of the Loan Documents, then to interest
due and payable; and then to principal, or in such other order as Bank
determines, at its option.
4. REVOLVING FEATURE. Borrowings hereunder may not exceed any borrowing
limitations contained in the Loan Agreement. Bank shall incur no liability
for refusing to advance funds based on its determination that any
conditions of further advances have not been met. Bank records of the
amounts borrowed from time to time shall be conclusive proof of those
borrowings. Bank may refuse to make additional advances or reduce the
amount of advances available if (i) Bank determines, in its sole
discretion, that the value of any collateral securing this Note has
declined significantly; or (ii) Bank reasonably believes that Borrower will
be unable to fulfill its repayment obligations under this Note due to a
material change in its financial condition. Bank and Borrower expressly
agree that Chapter 346 ("Chapter 346") of the Texas Finance Code shall not
apply to this Note or to any advances under this Note and that neither this
Note or any such advances shall be governed by or subject to the provisions
of Chapter 346 in any manner whatsoever.
5. AUTOMATIC PAYMENT. Borrower has elected to authorize Bank to effect payment
of sums due under this Note by means of debiting Borrower's account number
1252079666. This authorization shall not affect the obligation of Borrower
to pay such sums when due, without notice if there are insufficient funds
in such account to make such payment in full on the due date thereof, or if
Bank fails to debit the account.
6. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
will be imposed in an amount not to exceed four percent (4%) of any payment
that is more than fifteen days late.
7. WAIVERS, CONSENTS AND COVENANTS. Borrower, and any endorser or any other
party to this Note jointly and severally: (a) waive presentment, demand,
protest, and any notice required to be given under the law in connection
with the delivery, acceptance, performance, default or enforcement of this
Note; (b) consent to all delays, extensions, renewals or other
modifications of this Note or the other Loan Documents, or waivers of any
provisions of the Note or the other Loan Documents, or Bank's release or
discharge of any such party, or release, substitution or exchange of any
security for the payment of this Note, or Bank's failure to act, or any
indulgence shown by Bank and agree that no such action, failure to act or
failure to exercise any right or remedy by Bank shall in any way affect the
obligations of any such party or be construed as a waiver by Bank of, or
otherwise affect, any of Bank's rights under this Note, or under any of the
other Loan Documents; and (c) agree to pay, on demand, all costs and
expenses of collection or defense of this and/or the enforcement or defense
of Bank's rights with respect to, or the administration, supervision,
preservation, or protection of, or realization upon, any property securing
payment hereof, including, without limitation, reasonable attorney's fees
related to any suit, mediation or arbitration proceeding, out of court
payment agreement, trial, appeal, bankruptcy proceedings or other
proceeding, in such amount as may be determined reasonable by an arbitrator
or court as appropriate.
8. EVENTS OF DEFAULT. The following are events of default under this Note: (a)
the failure of Borrower, any endorser or guarantor of this note, or any
other party executing a Loan Document that supports this Loan (individually
an "Obligor" and collectively "Obligors") to pay or perform any obligation,
liability or indebtedness owed to Bank, or to any
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affiliate of Bank of America Corporation, under this Note or any other Loan
Document, as and when due (whether upon demand, at maturity or by
acceleration); (b) the failure of any Obligor to pay or perform any other
obligation, liability or indebtedness owed to any other party; (c) the
death of any Obligor (if an individual); (d) the resignation or withdrawal
of any partner or a material owner/guarantor of Borrower, as determined by
Bank in its sole discretion; (e) the commencement of a proceeding against
any Obligor for dissolution or liquidation, the voluntary or involuntary
termination or dissolution of any Obligor or the merger or consolidation of
any Obligor with or into another entity; (f) the insolvency of, the
business failure of, the appointment of a custodian, trustee, liquidator or
receiver for or for any of the property of, the assignment for the benefit
of creditors by, or the filing of a petition under bankruptcy, insolvency
or debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against any Obligor; (g) the
determination by Bank that any representation or warranty made to it by any
Obligor in any Loan Document or otherwise is or was, when it was made,
untrue or materially misleading; (h) the failure of any Obligor to timely
deliver such financial statements, including tax returns, other statements
of condition or other information, as Bank shall request from time to time;
(i) the entry of a judgment against any Obligor which Bank in its sole
discretion deems material in nature; (j) the seizure or forfeiture of, or
the issuance of any writ of possession, garnishment or attachment, or any
turnover order for any property of any Obligor; (k) the determination by
Bank that it is insecure for any reason; (l) the determination by Bank that
a material adverse change has occurred in the financial condition of any
Obligor; or (m) the failure of Borrower's business to comply with any law
or regulation controlling its operation.
9. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding under this Note and all other obligations of any
Obligor to Bank shall, at the option of Bank, become immediately due and
payable and any obligation of Bank to permit further borrowing under this
Note shall immediately cease and terminate, and/or (b) to the extent
permitted by law, the rate of interest on the unpaid principal shall be
increased at Bank's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). Imposition of a Default Rate
shall not extend the time for any payment on this Note. At Bank's option,
any accrued and unpaid interest, fees or charges may, for purposes of
computing and accruing interest on a daily basis after the due date of this
Note or any installment thereof, be deemed to be a part of the principal
balance, and, to the extent such would not cause the interest hereunder to
exceed the Maximum Rate, interest shall accrue on a daily compounded basis
after such date at the Default Rate provided in this Note until the entire
outstanding balance of principal and interest is paid in full. Whenever
there is a default under this Note, Bank is authorized at any time, at its
option and without notice or demand, to set off and charge against any
deposit accounts of any Obligor (and against any money, instruments,
securities, documents, chattel paper, credits, claims, demands, income and
any other property, rights and interests of any Obligor), which come into
the possession or custody or under the control of Bank or any of its
agents, affiliates or correspondents, any and all obligations due under
this Note. Additionally, Bank shall have all rights and remedies available
under each of the Loan Documents, as well as all rights and remedies
available at law or in equity.
10. NON-WAIVER. Bank's failure to exercise any option or any other right under
this Note is not a waiver of that right or option, and will not bar Bank's
exercise of any options or rights at a later date. All rights and remedies
of Bank are cumulative and may be pursued singly, successively or together,
at Bank's option. Bank's acceptance of any partial payment is not a waiver
of any default or of any of Bank's rights under this Note. Any waiver of
Bank's rights and any modification of this Note must be in writing and duly
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signed on behalf of Bank; any such waiver shall apply only to the specific
instance involved, and will not impair the rights of Bank or the
obligations of Obligors to Bank in any other respect or at any other time.
11. APPLICABLE LAW, VENUE AND JURISDICTION. Borrower agrees that this Note
shall be deemed to have been made in the State of Texas at Bank's address
indicated at the beginning of this Note and shall be governed by, and
construed in accordance with, the laws of the State of Texas and is
performable in the City and County of Texas indicated at the beginning of
this Note. In any litigation in connection with or to enforce this Note or
any indorsement or guaranty of this Note or any other Loan Document,
Obligors, and each of them, irrevocably consent to and confer personal
jurisdiction on the courts of the State of Texas or the United States
courts located within the State of Texas. Nothing contained herein shall,
however, prevent Bank from bringing any action or exercising any rights
within any other state or jurisdiction or from obtaining personal
jurisdiction by any other means available under applicable law.
12. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other
provision of this Note and the invalidity or unenforceability of any
provision of this Note to any person or circumstance shall not affect the
enforceability or validity of such provision to any other persons or
circumstances.
13. BINDING EFFECT. This Note shall be binding upon and inure to the benefit of
Borrower, Obligors and Bank and their respective successors, assigns, heirs
and personal representatives, but no obligations of Borrower or Obligors
hereunder can be assigned without prior written consent of Bank.
14. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is in
any way incompatible with any other document related specifically to the
loan evidenced by this Note other than the Loan Agreement, this Note shall
control over any other such document, and if this Note does not address an
issue, then each other such document shall control to the extent that it
deals most specifically with that issue, but the Loan Agreement shall
control in the event of a conflict or incompatibility between the terms of
this Note and the Loan Agreement.
15. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT,
SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES
OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL
RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR
DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS NOTE
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
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a. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN DALLAS COUNTY, TEXAS AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL
ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
b. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE DEEMED
TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
c. Borrower represents to Bank that the proceeds of this loan are to be used
primarily for business, commercial or agricultural purposes. Borrower
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
d. NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS 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.
BANK: BANK OF AMERICA, N.A. BORROWER: PEERLESS MFG. CO.
By: /s/ Mark L. Henze By: /s/ Sherrill Stone
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Mark L. Henze, Senior Vice President Sherrill Stone
Chairman and Chief Executive Officer
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SCHEDULE I
INTEREST RATE PRICING DEFINITIONS
The definitions set forth on this Schedule I are those which relate
solely to the interest rate pricing options under the Note.
"BUSINESS DAY" means the normal banking hours during any day (other
than Saturdays or Sundays or legal holidays) that banks are legally open for
business in Dallas, Texas.
"INTEREST PERIOD" means, with respect to any Loan, the period ending on
the last day of each calendar quarter, provided, however, that (i) if any
Interest Period would end on a day that is not a Business Day, such Interest
Period shall end on the next succeeding Business Day, and (ii) if any Interest
Period would otherwise end after the Maturity Date, such Interest Period shall
end on the Maturity Date.
"MATURITY DATE" means August 31, 2001.
"PRIME RATE" means the variable rate of interest per annum established
from time to time by Bank as its Prime Rate (which rate of interest may or may
not be the lowest rate or best charged by Bank on similar loans, and Bank may
make various commercial or other loans at rates of interest having no
relationship to such rate). Each change in the Prime Rate shall become effective
without prior notice to Borrower automatically as of the opening of business on
the date of such change in the Prime Rate.
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