Company Note - Climate Master Inc. and Oklahoma County Finance Authority
COMPANY NOTE
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$2,000,000 Oklahoma City, Oklahoma
FOR VALUE RECEIVED, Climate Master, Inc. (the "Maker"), promises to pay to
the order of the Oklahoma County Finance Authority, an Oklahoma public trust
(the "Authority"), or any subsequent holder or. holders of this Note (the
Authority and any subsequent holder or holders are hereinafter referred to as
the "Holder"), at the offices of the Authority, or at such other place as may be
designated in writing by the Holder, the principal sum of Two Million Dollars
($2,000,000), or so much thereof as shall be disbursed, together with interest
thereon at the rate hereinafter specified, payable as set forth herein.
As used herein, the following terms shall have the meanings indicated:
Note Rate shall mean a variable rate of interest per annum equal to the
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variable rate of interest per annum, payable by The Oklahoma Industrial Finance
Authority a body corporate and politic, and an instrumentality, agency and
department of the State of Oklahoma, on its $10,000,000 Taxable General
Obligation industrial Finance Bonds, Series P (the "Series P Bonds"), (3%) with
a minimum interest rate of ten percent (10%). From and after the date hereof
until August 1, 1989, interest shall accrue at an initial interest rate of 12.9%
adjustable as herein provided. The Note Rate and the amount of Maker's required
payments hereunder shall be adjusted (upward or downward) on August 1, 1989, and
on the first (1st) day of every third (3rd) month thereafter (referred to herein
after as the "Payment Adjustment Date"); provided, however, that in no event
shall the Note Rate or the interest cost on this Note exceed any statutory
limitation, [currently fourteen percent (14%)]. Prior to any change in the Note
Rate, the Maker and the Authority shall be mailed notice in writing by the
Holder by first class mail at the addresses then on file at the offices of the
Holder at least one (1) day prior to the end of the then effective Note Rate
period, but any failure in respect of such mailing will not affect the validity
of such notice of Note Rate change, nor shall the Holder be liable or
responsible for any such failure of mailing and/or the failure of the Maker or
the Authority to receive such notice, absent gross negligence or fraud. Such
notice shall specify the effective dates of the new Note Rate and the amount of
interest due and payable on the succeeding payment dates during the ensuing
designated period. Further, such Note Rate shall prevail until written notice to
the contrary has been mailed by the Holder to the Maker and the Authority or
until final maturity of this Note.
Loan Agreement shall mean the Project Loan Agreement dated as of July 1,
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1989 by and between the Authority and the Maker relating to the disbursement of
the loan evidenced by this Note. At the option of the Holder, a default under
the Project Loan Agreement shall constitute a default under this Note.
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Commencing on the lst day of September, 1989, and on the 1st day of each
calendar month thereafter, interest shall be paid on the unpaid principal
balance of this Note based upon the amount actually funded.
Commencing on the 1st day of September, 1989, and continuing on the lst day
of each calendar month thereafter, principal shall be paid in fifty-six (56)
consecutive equal monthly installments.
The last monthly payment of principal and interest, due on May 1, 1994,
will be in the then remaining balance of principal and interest. Each of the
foregoing payments of interest and principal shall be applied first to the
payment of any unpaid interest hereunder at the Note Rate, and the balance, if
any, shall be applied to the principal sum.
Subject to the provisions of the Loan Agreement, the right is reserved to
prepay this Note, in whole or in part, provided that the prepayment is made on a
regularly scheduled principal and interest installment payment date. Any full or
partial prepayment shall apply to (i) costs and expenses of the Holder in
effecting the prepayment; (ii) interest to accrue to the repayment date thereof
and not previously paid; (iii) the principal amount of this Note.
Holder will provide Maker with notice and thirty (30) days' opportunity to
cure any non-monetary default and fifteen (15) days' opportunity to cure any
monetary default. While any default exists hereunder all sums herein promised to
be paid shall bear interest at the rate equal to fourteen percent (14%) per
annum, but not more than the Maximum Rate, (as defined below), provided, that
any default interest so required to be paid when added to all other interest
paid to date under this Note, shall not result in this Company Note bearing an
interest rate in excess of the Maximum Rate. Such default interest shall accrue
from the date of default to the date on which such default is cured to the
satisfaction of the Holder. All past due sums 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, the Holder may apply payments received on any
amount due hereunder or under the terms of any instrument now or hereafter
evidencing or securing any such indebtedness as the Holder may determine.
Subject to the maximum interest rate permitted to be paid by public trusts
pursuant to Title 60 Oklahoma Statutes 1981, Section 176(e), (the "Maximum
Rate"), the Holder may collect a late charge equal to four cents (.04) on each
dollar of each payment which is not paid within ten (10) days from the due date
thereof, for the, purposes of covering the extra expenses involved in handling
delinquent installments. This late charge provision shall not be applicable in
the event the Holder, at its option, elects to
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receive interest at the increased rate as previously provided in the event of
default.
Payment of this Note is secured by a Mortgage with Power of Sale of
Tenant's Interest in Lease (the "Mortgage") a Security Agreement and other
security instruments covering property located in Oklahoma County, Oklahoma, and
this Note is to be construed according to the laws of the State of Oklahoma.
Upon an Event of Default as defined in the Project Loan Agreement, in any
of the terms or conditions of this Note, the Project Loan Agreement, Mortgage,
Security Agreement, or any other instrument securing payment of this Note, at
the option of the Holder, the entire indebtedness hereby evidenced shall in
accordance with the terms of the Project Loan Agreement related hereto, become
due, payable and collectible then or thereafter as the Holder may elect,
regardless of the date of maturity hereof. Notice of the exercise of such option
is hereby expressly waived.
The Maker agrees that if, and as often as, this Note is placed in the hands
of an attorney for collection or to defend or enforce any of the Holder's rights
hereunder, the Maker will pay to the Holder its reasonable attorney's fees,
together with all court cost, and other expenses paid by such Holder.
It is the intent of the Holder and the Maker to conform strictly to the
usury laws of the State of Oklahoma, and any interest on the principal sum
hereof in excess of that allowed by such usury laws shall be subject to
reduction to the maximum amount of interest allowed under such laws. If any
interest in excess of the maximum amount of interest allowable by such usury
laws is inadvertently paid to the Holder, at any time, any such excess interest
shall be refunded by the Holder to the party or parties entitled to the same
after receiving notice of payments of such excess interest.
The Maker and the endorsers, sureties, guarantors, and all other persons
who may become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time of payment hereof, whether one or more, any renewal
hereof, whether one or more, and any release of any party liable for payment of
this obligation. Any such extension, renewal or release may be made without
notice to any such party and without discharging such party's liability
hereunder.
The records of the Holder shall be prima facie evidence of the amount owing
on this Note.
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IN WITNESS WHEREOF, the Maker has executed this instrument as of this 14th
day of July, 1989.
CLIMATE MASTER, INC.
By: /s/ Tony M. Shelby
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Vice President
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ATTEST:
/s/ James J. Gray
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Ass't Secretary
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(SEAL)
ENDORSEMENT
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Pay without recourse to the order of The Oklahoma Industrial Finance
Authority.
July 14, 1989.
OKLAHOMA COUNTY FINANCE AUTHORITY,
An Oklahoma Public Trust
By: /s/ Vincent P. Cotter
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Chairman
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TRUSTEES' DISCLAIMER
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This instrument is endorsed by the Trustees or officers of both of the
Oklahoma County Finance Authority in their capacities as such Trustees or
officers. By the acceptance of this instrument, any holder or holders hereof
agree that no trustee or officer of the Authority shall be personally liable for
the payment of any claim or the performance of any obligation hereunder and that
the holder will seek recourse only against the original maker, its guarantors,
successors and assigns, and any collateral pledged or mortgaged to secure the
indebtedness evidenced by this Note. Reference is made to the Trust Indenture of
the Authority, dated May 9, 1983, a copy of which has been filed in the office
of the County Clerk, Oklahoma County, State of Oklahoma, and the office of the
Secretary of State, State of Oklahoma.
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