EXHIBIT 10(b)
[COMERICA BANK LOGO] GUARANTY
As of October 30, 2003, the undersigned, for value received, unconditionally and
absolutely guarantee(s) to Comerica Bank ("Bank"), payment when due, whether by
stated maturity, demand, acceleration or otherwise, of all existing and future
indebtedness ("Indebtedness") to the Bank of PEERLESS MFG. CO. ("Borrower").
Indebtedness includes without limit any and all obligations or liabilities of
the Borrower to the Bank, whether absolute or contingent, direct or indirect,
voluntary or involuntary, liquidated or unliquidated, joint or several, known or
unknown; originally payable to the Bank or to a third party and subsequently
acquired by the Bank including, without limitation, late charges, loan fees or
charges and overdraft indebtedness; any and all indebtedness, obligations or
liabilities for which Borrower would otherwise be liable to the Bank were it not
for the invalidity, irregularity or unenforceability of them by reason of any
bankruptcy, insolvency or other law or order of any kind, or for any other
reason; any and all amendments, modifications, renewals and/or extensions of any
of the above; and all costs of collecting Indebtedness, including, without
limit, attorneys' fees. Any reference in this Guaranty to attorneys' fees shall
be deemed a reference to reasonable fees, charges, costs and expenses of counsel
and paralegals, whether inside or outside counsel is used, and whether or not a
suit or action is instituted, and to court costs if a suit or action is
instituted, and whether attorneys' fees or court costs are incurred at the trial
court level, on appeal, in a bankruptcy, administrative or probate proceeding or
otherwise. All costs shall be payable immediately by the undersigned when
incurred by the Bank, upon demand in writing, accompanied by reasonable detail
and explanation, and until paid shall bear interest at the highest per annum
rate applicable to any of the Indebtedness, but not in excess of the maximum
rate permitted by law.
1. LIMITATION: The total obligation of the undersigned under this Guaranty
is UNLIMITED unless specifically limited in the Additional Provisions
of this Guaranty, and this obligation (whether unlimited or limited to
the extent specified in the Additional Provisions) shall include, IN
ADDITION TO any limited amount of principal guaranteed, all interest on
that limited amount, and all costs incurred by the Bank in collection
efforts against the Borrower and/or the undersigned or otherwise
incurred by the Bank in any way relating to the Indebtedness, or this
Guaranty, including without limit attorneys' fees. The undersigned
agree(s) that (a) this limitation shall not be a limitation on the
amount of Borrower's Indebtedness to the Bank; (b) any payments by the
undersigned shall not reduce the maximum liability of the undersigned
under this Guaranty unless written notice to that effect is actually
received by the Bank at, or prior to, the time of the payment; and (c)
the liability of the undersigned to the Bank shall at all times be
deemed to be the aggregate liability of the undersigned under this
Guaranty.
2. NATURE OF GUARANTY: This is a continuing Guaranty of payment and not of
collection and remains effective whether the Indebtedness is from time
to time reduced and later increased or entirely extinguished and later
reincurred. The undersigned deliver(s) this Guaranty based solely on
the undersigned's independent investigation of (or decision not to
investigate) the financial condition of Borrower and is (are) not
relying on any information furnished by the Bank. The undersigned
assume(s) full responsibility for obtaining any further information
concerning the Borrower's financial condition, the status of the
Indebtedness or any other matter which the undersigned may deem
necessary or appropriate now or later. The undersigned knowingly
accept(s) the full range of risk encompassed in this Guaranty, which
risk includes, without limit, the possibility that Borrower may incur
Indebtedness to the Bank after the financial condition of the Borrower,
or the Borrower's ability to pay debts as they mature, has
deteriorated.
3. APPLICATION OF PAYMENTS: The undersigned authorize(s) the Bank, either
before or after termination of this Guaranty, without notice to or
demand on the undersigned and without affecting the undersigned's
liability under this Guaranty, from time to time to: (a) apply any
security and direct the order or manner of sale; and (b) apply payments
received by the Bank from the Borrower to any indebtedness of the
Borrower to the Bank, in such order as the Bank shall determine in its
sole discretion, whether or not this indebtedness is covered by this
Guaranty, and the undersigned waive(s) any provision of law regarding
application of payments which specifies otherwise. The undersigned
agree(s) to provide to the Bank copies of the undersigned's financial
statements upon request.
4. SECURITY: The undersigned pledge(s), assign(s) and grant(s) to the Bank
a security interest in and lien upon and the right of setoff as to any
and all property of the undersigned now or later in the possession of
the Bank. The undersigned further assign(s) to the Bank as collateral
for the obligations of the undersigned under this Guaranty all claims
of any nature that the undersigned now or later has (have) against the
Borrower (other than any claim under a deed of trust or mortgage
covering California real property) with full right on the part of the
Bank, in its own name or in the name of the undersigned, to collect and
enforce these claims. The undersigned agree(s) that no security now or
later held by the Bank for the payment of any Indebtedness, whether
from the Borrower, any guarantor, or otherwise, and whether in the
nature of a security interest, pledge, lien, assignment, setoff,
suretyship, guaranty, indemnity, insurance or otherwise, shall affect
in any manner the unconditional obligation of the undersigned under
this Guaranty, and the Bank, in its sole discretion, without notice to
the undersigned, may release, exchange, enforce and otherwise deal with
any security without affecting in any manner the unconditional
obligation of the undersigned under this Guaranty. The undersigned
acknowledge(s) and agree(s) that the Bank has no obligation to acquire
or perfect any lien on or security interest in any asset(s), whether
realty or personalty, to secure payment of the Indebtedness, and the
undersigned is (are) not relying upon any asset(s) in which the Bank
has or may have a lien or security interest for payment of the
Indebtedness.
5. [INTENTIONALLY OMITTED].
6. TERMINATION: Any of the undersigned may terminate their obligation
under this Guaranty as to future Indebtedness (except as provided
below) by (and only by) delivering written notice of termination to an
officer of the Bank and receiving from an officer of the Bank written
acknowledgement of delivery; provided, however, the termination shall
not be effective until the opening of business on the fifth (5th) day
("effective date") following written acknowledgement of delivery. Any
termination shall not affect in any way the unconditional obligations
of the remaining guarantor(s), whether or not the termination is known
to the remaining guarantor(s). Any termination shall not affect in any
way the unconditional obligations of the terminating guarantor(s) as to
any Indebtedness existing at the effective date of termination or any
Indebtedness created after that pursuant to any commitment or agreement
of the Bank or pursuant to any Borrower loan with the Bank existing at
the effective date of termination (whether advances or readvances by
the Bank after the effective date of termination are optional or
obligatory), or any modifications, extensions or renewals of any of
this Indebtedness, whether in whole or in part, and as to all of this
Indebtedness and modifications, extensions or renewals of it, this
Guaranty shall continue effective until the same shall have been fully
paid. The Bank has no duty to give notice of termination by any
guarantor(s) to any remaining guarantor(s). The undersigned shall
indemnify the Bank against all claims, damages, costs and expenses
(collectively, the "Indemnified Matters"), INCLUDING ANY CLAIMS,
DAMAGES, COSTS AND
EXPENSES RESULTING FROM BANK'S OWN NEGLIGENCE, except and to the extent
(but only to the extent) caused by Bank's gross negligence or wilful
misconduct, including, without limit, attorneys' fees, incurred by the
Bank in connection with any suit, claim or action against the Bank
arising out of any modification or termination of a Borrower loan or
any refusal by the Bank to extend additional credit in connection with
the termination of this Guaranty. Upon Bank's receipt of written notice
of any such Indemnified Matter, Bank will provide to Debtor notice, in
writing accompanied by reasonable detail, of such Indemnified Matter,
but any failure by Bank to provide such notice to Debtor shall not
impair or otherwise affect the rights of Bank to be indemnified and
held harmless under this Section.
7. REINSTATEMENT: Notwithstanding any prior revocation, termination,
surrender or discharge of this Guaranty (or of any lien, pledge or
security interest securing this Guaranty) in whole or in part, the
effectiveness of this Guaranty, and of all liens, pledges and security
interests securing this Guaranty, shall automatically continue or be
reinstated in the event that any payment received or credit given by
the Bank in respect of the Indebtedness is returned, disgorged or
rescinded under any applicable state or federal law, including, without
limitation, laws pertaining to bankruptcy or insolvency, in which case
this Guaranty, and all liens, pledges and security interests securing
this Guaranty, shall be enforceable against the undersigned as if the
returned, disgorged or rescinded payment or credit had not been
received or given by the Bank, and whether or not the Bank relied upon
this payment or credit or changed its position as a consequence of it.
In the event of continuation or reinstatement of this Guaranty and the
liens, pledges and security interests securing it, the undersigned
agree(s) upon demand by the Bank to execute and deliver to the Bank
those documents which the Bank determines are appropriate to further
evidence (in the public records or otherwise) this continuation or
reinstatement, although the failure of the undersigned to do so shall
not affect in any way the reinstatement or continuation. If the
undersigned do(es) not execute and deliver to the Bank upon demand such
documents, the Bank and each Bank officer is irrevocably appointed
(which appointment is coupled with an interest) the true and lawful
attorney of the undersigned (with full power of substitution) to
execute and deliver such documents in the name and on behalf of the
undersigned.
8. WAIVERS: The undersigned, to the extent not expressly prohibited by
applicable law, waive(s) any right to require the Bank to: (a) proceed
against any person or property; (b) give notice of the terms, time and
place of any public or private sale of personal property security held
from the Borrower or any other person, or otherwise comply with the
provisions of Sections 9-611 or 9-621 of the Texas or other applicable
Uniform Commercial Code, as the same may be amended, revised or
replaced from time to time; or (c) pursue any other remedy in the
Bank's power. The undersigned waive(s) notice of acceptance of this
Guaranty and presentment, demand, protest, notice of protest, dishonor,
notice of dishonor, notice of default, notice of intent to accelerate
or demand payment or notice of acceleration of any Indebtedness, any
and all other notices to which the undersigned might otherwise be
entitled, and diligence in collecting any Indebtedness, and all rights
of a guarantor under Rule 31, Texas Rules of Civil Procedure, Chapter
34 of the Texas Business and Commerce Code, or Section 17.001 of the
Texas Civil Practice and Remedies Code, and agree(s) that the Bank may,
once or any number of times, modify the terms of any Indebtedness,
compromise, extend, increase, accelerate, renew or forbear to enforce
payment of any or all Indebtedness, or permit the Borrower to incur
additional Indebtedness, all without notice to the undersigned and
without affecting in any manner the unconditional obligation of the
undersigned under this Guaranty.
The undersigned unconditionally and irrevocably waive(s) each and every
defense and setoff of any nature which, under principles of guaranty or
otherwise, would operate to impair or diminish in any way the
obligation of the undersigned under this Guaranty, and acknowledge(s)
that each such waiver is by this reference incorporated into each
security agreement, collateral assignment, pledge and/or other document
from the undersigned now or later securing this Guaranty and/or the
Indebtedness, and acknowledge(s) that as of the date of this Guaranty
no such defense or setoff exists.
9. WAIVER OF SUBROGATION: The undersigned waive(s) any and all rights
(whether by subrogation, indemnity, reimbursement, or otherwise) to
recover from the Borrower any amounts paid by the undersigned pursuant
to this Guaranty until the Indebtedness has been paid in full.
10. SALE/ASSIGNMENT: The undersigned acknowledge(s) that the Bank has the
right to sell, assign, transfer, negotiate, or grant participations in
all or any part of the Indebtedness and any related obligations,
including, without limit, this Guaranty, as provided in that certain
Credit Agreement of even date herewith between Borrower and the Bank,
without notice to the undersigned and that the Bank may disclose any
documents and information which the Bank now has or later acquires
relating to the undersigned or to the Borrower or the Indebtedness in
connection with such sale, assignment, transfer, negotiation, or grant.
The undersigned agree(s) that the Bank may provide information relating
to this Guaranty or relating to the undersigned to the Bank's parent,
affiliates, subsidiaries and service providers.
11. GENERAL: This Guaranty constitutes the entire agreement of the
undersigned and the Bank with respect to the subject matter of this
Guaranty. No waiver, consent, modification or change of the terms of
the Guaranty shall bind any of the undersigned or the Bank unless in
writing and signed by the waiving party or an authorized officer of the
waiving party, and then this waiver, consent, modification or change
shall be effective only in the specific instance and for the specific
purpose given. This Guaranty shall inure to the benefit of the Bank and
its successors and assigns and shall be binding on the undersigned and
the undersigned's legal representatives, successors and assigns
including, without limit, any debtor in possession or trustee in
bankruptcy for any of the undersigned. The undersigned has (have)
knowingly and voluntarily entered into this Guaranty in good faith for
the purpose of inducing the Bank to extend credit or make other
financial accommodations to the Borrower. If any provision of this
Guaranty is unenforceable in whole or in part for any reason, the
remaining provisions shall continue to be effective. THIS GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12. HEADINGS: Headings in this Agreement are included for the convenience
of reference only and shall not constitute a part of this Agreement for
any purpose.
13. ADDITIONAL PROVISIONS: None.
14. JURY TRIAL WAIVER: THE UNDERSIGNED AND BANK, BY ACCEPTANCE OF THIS
GUARANTY, ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT
WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING
THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS
GUARANTY OR THE INDEBTEDNESS.
15. THIS WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF THE TEXAS
BUSINESS AND COMMERCE CODE) 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 OR ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, Guarantor(s) has (have) signed and delivered this Guaranty
the day and year first written above.
GUARANTOR:
PMC ACQUISITION, INC.
By: /s/ Richard L. Travis, Jr.
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SIGNATURE OF
Its: Chief Financial Officer
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TITLE (IF APPLICABLE)
GUARANTOR"S ADDRESS:
2819 Wallnut Hill Lane
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STREET ADDRESS
Dallas TX 75354
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CITY STATE ZIP CODE