EXHIBIT 10.1
AMENDED AND RESTATED TERM NOTE
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(CORRECTED)
$2,553,625.27 September 14, 2001
FOR VALUE RECEIVED, on or before April 30, 2004 ("Maturity Date") the
undersigned and if more than one, each of them, jointly and severally
("Borrower"), does hereby unconditionally promise to pay to the order of BANK
ONE, NA, successor by merger to BANK ONE, TEXAS, N.A., a national banking
association ("Bank"), at its offices in Dallas County, Texas at 0000 Xxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, the principal amount of TWO MILLION FIVE HUNDRED
FIFTY-THREE THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS AND TWENTY-SEVEN CENTS
($2,553,625.27) ("Total Principal Amount"), or such amount less than the Total
Principal Amount which is outstanding from time to time if the total amount
outstanding under this Amended and Restated Term Note (this "Amended Note") is
less than the Total Principal Amount, in lawful money of the United States of
America, together with interest on such portion of the Total Principal Amount
which has been drawn until paid at the rates per annum provided below.
1. Definitions. For purposes of this Amended Note, unless the context
otherwise requires, the following terms shall ave the definitions assigned to
such terms as follows:
"Adjusted LIBOR Rate" shall mean with respect to each Interest Period, on
any day thereof an amount equal to the sum of (i) 2.25%, plus, (ii) the quotient
of (a) the LIBOR Rate with respect to such Interest Period (the "Index"),
divided by (b) the remainder of 1.0 less the Reserve Requirement in effect on
such day. Each determination by Bank of the Adjusted LIBOR Rate shall, in the
absence of manifest error, be conclusive and binding.
"Business Day" shall mean any day other than a Saturday, Sunday or any
other day on which national banking associations are authorized to be closed.
"Consequential Loss" shall mean, with respect to Borrower's payment of all
or any portion of the then outstanding principal amount of any LIBOR Balance on
a day other than the last day of the Interest Period related thereto, any loss,
cost or expense incurred by Bank in redepositing such principal amount,
including the sum of (i) the interest which, but for such payment, Bank would
have earned in respect of such principal amount so paid, for the remainder of
the Interest Period applicable to such sum, reduced, if Bank is able to
redeposit such principal amount so paid for the balance of such Interest Period,
by the interest earned by Bank as a result of so redepositing such principal
amount plus (ii) any expense or penalty incurred by Bank on redepositing such
principal amount.
"Contract Rate" shall mean a rate of interest based upon the Adjusted LIBOR
Rate or the Prime Rate in effect at any time pursuant to an Interest Notice.
"Dollars" shall mean lawful currency of the United States of America.
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"Event of Default" shall mean the occurrence of an event of default
specified in the Loan Agreement (as hereinafter defined).
"Excess Interest Amount" shall mean, on any date, the amount by which (i)
the amount of all interest which would have accrued prior to such date on the
principal of this Amended Note, had the applicable Contract Rate at all times
been in effect without limitation by the Maximum Rate, exceeds (ii) the
aggregate amount of interest accrued on this Amended Note on or prior to such
date.
"Interest Notice" shall mean the notice given by Borrower to Bank of the
Interest Options selected hereunder. Each Interest Notice shall specify the
Interest Option selected, the amount of the unpaid principal balance of this
Amended Note to bear interest at the rate selected and, if the Adjusted LIBOR
Rate is specified, the length of the applicable Interest Period. An Interest
Notice may be written or oral (if promptly confirmed thereafter in writing) and
Bank is hereby authorized and directed to honor all telephonic Interest Notices
from any person authorized to request advances hereunder.
"Interest Option" shall have the meaning assigned to such term in paragraph
6 hereof.
"Interest Payment Date" shall mean (i) in the case of the Prime Rate
Balance, on the first day of December, 2001 and on the first day of March, June,
September and December thereafter, and on the Maturity Date, and (ii) in the
case of any LIBOR Balance, on the earlier of (a) the last day of the
corresponding Interest Period with respect to such LIBOR Balance, or (b) the
first day of December, 2001, and on the first day of March, June, September and
December thereafter, and on the Maturity Date.
"Interest Period" shall mean each consecutive one month, two month and
three month period (the first of which shall commence on the date of this
Amended Note) effective as of the first day of each Interest Period and ending
on the last day of each Interest Period, provided that if any Interest Period is
scheduled to end on a date for which there is no numerical equivalent to the
date on which the Interest Period commenced, then it shall end instead on the
last day of such calendar month.
"LIBOR Balance" shall mean any principal balance of this Amended Note
which, pursuant to an Interest Notice, bears interest at a rate based upon the
Adjusted LIBOR Rate for the Interest Period specified in such Interest Notice.
"LIBOR Rate" shall mean the offered rate for U.S. Dollar deposits of not
less than $1,000,000.00 for a period of time equal to each Interest Period as of
11:00 A.M. City of London, England time two London Business Days prior to the
first date of each Interest Period of this Amended Note as shown on the display
designated as "British Bankers Assoc. Interest Settlement Rates" on the Telerate
System ("Telerate"), Page 3750 or Page 3740, or such other page or pages as may
replace such pages on Telerate for the purpose of displaying such rate.
Provided, however, that if such rate is not available on Telerate then such
offered rate shall be otherwise independently determined by Bank from an
alternate, substantially similar independent source available to Bank or shall
be calculated by Bank by a substantially similar methodology
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as that theretofore used to determine such offered rate in Telerate. Each change
in the rate to be charged on this Amended Note will become effective without
notice on the commencement of each Interest Period based upon the Index then in
effect.
"Loan Agreement" shall mean that certain Fourth Amended and Restated Loan
Agreement by and between Bank and Borrower dated September 1, 2000, as amended
from time to time.
"Loan Documents" shall mean this Amended Note, the Loan Agreement and all
other documents evidencing, securing, governing, guaranteeing and/or pertaining
to this Amended Note.
"London Business Day" means any day other than a Saturday, Sunday or a day
on which banking institutions are generally authorized or obligated by law or
executive order to close in the City of London, England.
"Maximum Rate" shall mean, with respect to the holder hereof, the maximum
nonusurious interest rate, if any, that at any time, or from time to time, may
be contracted for, taken, reserved, charged, or received on the indebtedness
evidenced by this Amended Note under the laws which are presently in effect in
the United States and the State of Texas applicable to such holder and such
indebtedness or, to the extent permitted by law, under such applicable laws of
the United States and the State of Texas which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow. To the extent that Chapter 303 of the Texas Finance Code ("Code"), is
relevant to any holder of this Amended Note for the purposes of determining the
Maximum Rate, each such holder elects to determine such applicable legal rate
under the Act pursuant to the "weekly ceiling," from time to time in effect, as
referred to and defined in Chapter 303 of the Code; subject, however, to the
limitations on such applicable ceiling referred to and defined in Chapter 303 of
the Code, and further subject to any right such holder may have subsequently,
under applicable law, to change the method of determining the Maximum Rate. If
no Maximum Rate is established by applicable law, then the Maximum Rate shall be
equal to eighteen percent (18%).
"Prime Rate" shall mean the rate established from time to time by Bank as
its prime rate of interest (which may not be the lowest, best or most favorable
rate of interest which Bank may charge on loans to its customers).
"Prime Rate Balance" shall mean that portion of the principal balance of
this Amended Note bearing interest at a rate based upon the Prime Rate.
"Principal Payment Date" shall mean on the first day of December, 2001 and
on the first day of March, June, September and December thereafter, and on the
Maturity Date.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation relating to reserve requirements applicable to
member banks of the Federal Reserve System.
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"Reserve Requirement" shall, on any day, mean that percentage (expressed as
a decimal fraction) which is in effect on such day, as provided by the Board of
Governors of the Federal Reserve System (or any successor governmental body) for
determining the reserve requirements (including without limitation, basic,
supplemental, marginal and emergency reserves) under Regulation D with respect
to "Eurocurrency liabilities" as currently defined in Regulation D, or under any
similar or successor regulation. For purposes of this definition, any LIBOR
Balances hereunder shall be deemed "Eurocurrency liabilities" under Regulation D
without benefit of or credit for prorations, exemptions or offsets under
Regulation D. Bank's determination of the Reserve Requirement shall be
conclusive.
2. Payments of Interest and Principal. Interest on the unpaid principal
balance of this Amended Note shall be due and payable on each Interest Payment
Date as it accrues. In addition to the foregoing interest payments, on each
Principal Payment Date, Borrower shall pay to Bank a payment of principal in the
amount of 1/10th of the stated face amount of this Amended Note. The entire
unpaid principal balance of this Amended Note, and all accrued but unpaid
interest thereon, shall be due and payable on the Maturity Date.
3. Rates of Interest. The unpaid principal of the Prime Rate Balance
shall bear interest at a rate per annum which shall from day to day be equal to
the lesser of (i) the Prime Rate in effect from day to day, or (ii) the Maximum
Rate. The unpaid principal of each LIBOR Balance shall bear interest at a rate
per annum which shall from day to day be equal to the lesser of (i) the Adjusted
LIBOR Rate for the Interest Period in effect with respect to such LIBOR Balance,
or (ii) the Maximum Rate. Each change in the interest rate applicable to a Prime
Rate Balance 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. Interest on this Amended Note shall be calculated on the basis of
the actual days elapsed in a year consisting of 365 days.
4. Interest Recapture. If on each Interest Payment Date or any other date
on which interest payments are required hereunder, Bank does not receive
interest on this Amended Note computed at the Contract Rate because such
Contract Rate exceeds or has exceeded the Maximum Rate, then Borrower shall,
upon the written demand of Bank, pay to Bank in addition to the interest
otherwise required to be paid hereunder, on each Interest Payment Date
thereafter, the Excess Interest Amount (calculated as of such later Interest
Payment Date); provided that in no event shall Borrower be required to pay, for
any Interest Period, interest at a rate exceeding the Maximum Rate effective
during such period.
5. Interest on Past Due Amounts. To the extent any interest is not paid
on or before the fifth day after it becomes due and payable, Bank may, at its
option, add such accrued but unpaid interest to the principal of this Amended
Note. Notwithstanding anything herein to the contrary, upon an Event of Default
or at maturity, whether by acceleration or otherwise, all principal of this
Amended Note shall, at the option of Bank, bear interest at the Prime Rate plus
3% (the "Default Rate") until paid; provided, however, the Default Rate shall at
no time exceed the Maximum Rate.
6. Interest Option. Subject to the provisions hereof, Borrower shall have
the option (an "Interest Option") of having designated portions of the unpaid
principal balance of this
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Amended Note bear interest at a rate based upon the Adjusted LIBOR Rate or Prime
Rate as provided in paragraph 3 hereof, provided, however, that the selection of
the Adjusted LIBOR Rate for a particular Interest Period shall not be for less
than $100,000.00 of unpaid principal or an integral multiple thereof. The
Interest Option shall be exercised in the manner provided below:
(i) At Time of Borrowing. Borrower shall give Bank an Interest
Notice indicating the initial Interest Option selected with respect to the
principal balance of such advance.
ii) At Expiration of Interest Periods. Unless otherwise agreed to
by Bank, at least two (2) Business Days prior to the termination of any
Interest Period, Borrower shall give Bank an Interest Notice indicating the
Interest Option to be applicable to the corresponding LIBOR Balance upon
the expiration of such Interest Period. If the required Interest Notice
shall not have been timely received by Bank prior to the expiration of the
then-relevant Interest Period, Borrower shall be deemed to have selected a
rate based upon the Prime Rate to be applicable to such LIBOR Balance upon
the expiration of such Interest Period and to have given Bank notice of
such selection.
(iii) Conversion From Prime Rate. During any period in which any
portion of the principal hereof bears interest at a rate based upon the
Prime Rate, Borrower shall have the right, on any London Business Day (the
"Conversion Date"), to convert all or a portion of such principal amount
from the Prime Rate Balance to a LIBOR Balance by giving Bank an Interest
Notice of such selection at least two (2) London Business Days prior to
such Conversion Date, or as otherwise agreed to by Bank.
An Interest Notice may be written or oral and Bank is hereby authorized and
directed to honor all telephonic Interest Notices hereunder. Xxxxxxxx agrees to
indemnify and hold Bank harmless from any loss or liability incurred by Bank in
connection with honoring any telephonic or other oral Interest Notices. All
written Interest Notices are effective only upon receipt by Bank. Each Interest
Notice shall be irrevocable and binding upon Borrower.
7. Special Provisions For LIBOR Pricing.
a. Inadequacy of LIBOR Loan Pricing. If Bank determines that, by
reason of circumstances affecting the interbank eurodollar market generally,
deposits in Dollars (in the applicable amounts) are not being offered to United
States financial institutions in the interbank eurodollar market for such
Interest Period, or that the rate at which such Dollar deposits are being
offered will not adequately and fairly reflect the cost to Bank of making or
maintaining a LIBOR Balance for the applicable Interest Period, Bank shall
forthwith give notice thereof to Borrower, whereupon until Bank notifies
Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the right of Borrower to select an Interest Option based upon the LIBOR Rate
shall be suspended, and (ii) Borrower shall be deemed to have converted each
LIBOR Balance to the Prime Rate Balance in accordance with the provisions hereof
on the last day of the then-current Interest Period applicable to such LIBOR
Balance.
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b. Illegality. If the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by Bank with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for Bank to make or maintain a LIBOR Balance, Bank shall so notify
Borrower. Upon receipt of such notice, Borrower shall be deemed to have
converted any LIBOR Balance to the Prime Rate Balance, on either (i) the last
day of the then-current Interest Period applicable to such LIBOR Balance if Bank
may lawfully continue to maintain and fund such LIBOR Balance to such day, or
(ii) immediately, if Bank may not lawfully continue to maintain such LIBOR
Balance to such day.
8. Extension, Place and Application of Payments. Should the principal of,
or any interest on, this Amended Note become due and payable on any day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day, and interest shall be payable with respect to such
extension. All payments of principal of, and interest on, this Amended Note
shall be made in lawful money of the United States of America in immediately
available funds. Payments made to Bank by Xxxxxxxx hereunder shall be applied
first to accrued but unpaid interest and then to outstanding principal.
9. Loan Agreement. This Amended Note is subject to the terms and
provisions of the Loan Agreement, which is incorporated herein by reference for
all purposes. The holder of this Amended Note is entitled to the benefits
provided in the Loan Agreement.
10. Prepayments, Consequential Loss. Any prepayment made hereunder shall
be made together with all interest accrued but unpaid on this Amended Note
through the date of such prepayment. Contemporaneously with each prepayment of
principal, Borrower shall give Bank written or oral notice indicating whether
such prepayment is to be applied to the Prime Rate Balance or a particular LIBOR
Balance. If such notice is not timely received by Bank, Borrower shall be deemed
to have selected to prepay the Prime Rate Balance and, if any sums remain after
satisfying all of the Prime Rate Balance, the remaining sums shall be applied to
any LIBOR Balance(s) that Bank determines in its sole discretion. Xxxxxxxx
agrees to indemnify and hold Bank harmless from any loss or liability incurred
by Bank in connection with honoring telephonic or other oral notices indicating
how a prepayment is to be applied. If Borrower makes any such prepayment other
than on the last day of an Interest Period, Borrower shall pay all accrued
interest on the principal amount prepaid with such prepayment and, on demand,
shall reimburse Bank and hold Bank harmless from all losses and expenses
incurred by Bank as a result of such prepayment, including, without limitation,
any losses and expenses arising from the liquidation or reemployment of deposits
acquired to fund or maintain the principal amount prepaid. Such reimbursement
shall be calculated as though Bank funded the principal amount prepaid through
the purchase of U.S. Dollar deposits in the London, England interbank market
having a maturity corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period, whether in fact that is
the case or not. Bank's determination of the amount of such reimbursement shall
be conclusive in the absence of manifest error.
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11. Additional Costs. Xxxxxxxx agrees to pay to Bank all Additional Costs
within ten (10) days of receipt by Borrower from Bank of a statement setting
forth the amount or amounts due and the basis for the determination from time to
time of such amount or amounts, which statement shall be conclusive and binding
upon Borrower absent manifest error. Failure on the part of Bank to demand
compensation for any Additional Costs in any Interest Period shall not
constitute a waiver of Bank's right to demand compensation for any Additional
Costs incurred during any such Interest Period or in any other subsequent or
prior Interest Period. The term "Additional Costs" shall mean such additional
amount or amounts as Bank shall reasonably determine will compensate Bank for
actual costs incurred by Bank in maintaining LIBOR Rates on the LIBOR Balances
or any portion thereof as a result of any change, after the date of this Amended
Note, in applicable law, rule or regulation or in the interpretation or
administration thereof by, or the compliance by Bank with any request or
directive from, any domestic or foreign governmental authority charged with the
interpretation or administration thereof (whether or not having the force of
law) or by any domestic or foreign court changing the basis of taxation of
payments to Bank of the LIBOR Balances or interest on the LIBOR Balances or any
portion thereof at an Adjusted LIBOR Rate or any other fees or amounts payable
under this Amended Note or the Loan Agreement (other than taxes imposed on all
or any portion of the overall net income of Bank by the State of Texas or the
Federal government), or imposing, modifying or applying any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, credit extended by, or any other acquisition of funds for loans by
Bank, or imposing on Bank, as the case may be, or on the London interbank market
any other condition affecting this Amended Note, the Loan Agreement or the LIBOR
Balances so as to increase the cost of Bank making or maintaining Adjustable
LIBOR Rates with respect to the LIBOR Balances or any portion thereof or to
reduce the amount of any sum received or receivable by Bank under this Amended
Note or the Loan Agreement (whether of principal, interest or otherwise), by an
amount deemed by Bank in good faith to be material, but without duplication for
Reserve Requirement.
12. Notices. Except as otherwise specified herein, all notices and
requests required or permitted hereunder shall be in writing and shall be deemed
to have been given when personally delivered or, if mailed, two Business Days
after deposited in a regularly maintained receptacle for the United States
Postal Service, postage prepaid, registered or certified, return receipt
requested, addressed to Borrower or Bank at the following respective addresses
or such other address as such party may from time to time designate by written
notice to the other: Borrower: 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000,
Attention: Xxxx Xxxxxx; Bank: 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention:
Xxxx Points.
13. Legal Fees. If this Amended Note is placed in the hands of any
attorney for collection, or if it is collected through any legal proceeding at
law or in equity or in bankruptcy, receivership or other court proceedings,
Xxxxxxxx agrees to pay all costs of collection including, but not limited to,
court costs and reasonable attorneys' fees.
14. Waivers. Borrower and each surety, endorser, guarantor and any other
party ever liable for payment of any sums of money payable on this Amended Note,
jointly and severally waive presentment and demand for payment, protest, notice
of protest, intention to accelerate, acceleration and non-payment, or other
notice of default, and agree that their liability under this
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Amended Note shall not be affected by any renewal or extension in the time of
payment hereof, or in any indulgences, or by any release or change in any
security for the payment of this Amended Note, and hereby consent to any and all
renewals, extensions, indulgences, releases or changes, regardless of the number
of such renewals, extensions, indulgences, releases or changes; provided,
however, this Amended Note may not be amended or modified except by a written
instrument signed by the Borrower and the holder hereof. No waiver by Bank of
any of its rights or remedies hereunder or under any other document evidencing
or securing this Amended Note or otherwise shall be considered a waiver of any
other subsequent right or remedy of Bank; no delay or omission in the exercise
or enforcement by Bank of any rights or remedies shall ever be construed as a
waiver of any right or remedy of Bank; and no exercise or enforcement of any
such rights or remedies shall ever be held to exhaust any right or remedy of
Bank.
15. Remedies. Subject to any notice and cure period, upon the occurrence
of any Event of Default, the holder hereof may, at its option, (i) declare the
entire unpaid balance of principal and accrued but unpaid interest on this
Amended Note to be immediately due and payable, (ii) refuse to advance any
additional amounts under this Amended Note, (iii) foreclose all liens securing
payment hereof, (iv) pursue any and all other rights, remedies and recourses
available to the holder hereof, including but not limited to, any such rights,
remedies or recourses under the Loan Documents, at law or in equity, or (v)
pursue any combination of the foregoing.
16. Spreading. Any provision herein, or in any document securing this
Amended Note, or any other document executed or delivered in connection
herewith, or in any other agreement or commitment, whether written or oral,
expressed or implied, to the contrary notwithstanding, neither Bank nor any
holder hereof shall in any event be entitled to receive or collect, nor shall or
may amounts received hereunder be credited, so that Bank or any holder hereof
shall be paid, as interest, a sum greater than the maximum amount permitted by
applicable law to be charged to the person, partnership, firm or corporation
primarily obligated to pay this Amended Note at the time in question. If any
construction of this Amended Note or any document securing this Amended Note, or
any and all other papers, agreements or commitments, indicate a different right
given to Bank or any holder hereof to ask for, demand or receive any larger sum
as interest, such is a mistake in calculation or wording which this clause shall
override and control, it being the intention of the parties that this Amended
Note, and all other instruments securing the payment of this Amended Note or
executed or delivered in connection herewith shall in all things comply with the
applicable law and proper adjustments shall automatically be made accordingly.
In the event that Bank or any holder hereof ever receives, collects or applies
as interest, any sum in excess of the Maximum Rate, if any, such excess amount
shall be applied to the reduction of the unpaid principal balance of this
Amended Note, and if this Amended Note is paid in full, any remaining excess
shall be paid to Borrower. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, if any,
Borrower and Bank or any holder hereof shall, to the maximum extent permitted
under applicable law: (a) characterize any non-principal payment as an expense
or fee rather than as interest, (b) exclude voluntary prepayments and the
effects thereof, (c) "spread" the total amount of interest throughout the entire
term of this Amended Note; provided that if this Amended Note is paid and
performed in full prior to the end of the full contemplated term hereof, and if
the interest received for the actual period of existence thereof exceeds the
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Maximum Rate, if any, Bank or any holder hereof shall refund to Borrower the
amount of such excess, or credit the amount of such excess against the aggregate
unpaid principal balance of all advances made by the Bank or any holder hereof
under this Amended Note at the time in question.
17. Choice of Law. This Amended Note is being executed and delivered, and
is intended to be performed in the State of Texas. Except to the extent that the
laws of the United States may apply to the terms hereof, the substantive laws of
the State of Texas shall govern the validity, construction, enforcement and
interpretation of this Amended Note. In the event of a dispute involving this
Amended Note or any other instruments executed in connection herewith, the
undersigned irrevocably agrees that venue for such dispute shall lie in any
court of competent jurisdiction in Dallas County, Texas.
BORROWER:
AMX CORPORATION, a Texas corporation,
formerly known as PANJA, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: VP & CFO
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