Exhibit 10.3
AMENDED AND RESTATED PROMISSORY NOTE
$6,000,000
THIS AMENDED AND RESTATED PROMISSORY NOTE (this "Note") is made this
18th day of April, 1997 by EA ENGINEERING SCIENCE AND TECHNOLOGY, INC. (the
"Borrower") in favor of SIGNET BANK (the "Lender").
Recitals
R-1. The Lender made a revolving credit loan to the Borrower pursuant
to a Loan Agreement dated October 31, 1996 (the "Original Loan Agreement"). The
Revolving Credit Loan is evidenced by a Promissory Note dated October 31, 1996
in the original principal amount of $10,000,000 (the "Original Note").
R-2. The Original Note is secured by, among other things, a Security
Agreement dated March 27, 1997 by the Borrower in favor of the Lender, whereby
the Borrower granted to the Lender a security interest in the Collateral as
defined therein (the "Original Security Agreement").
R-3. As of April 17, 1997, there is due under the Original Note
principal of Three Million Five Hundred Thousand Dollars ($3,500,000) and
interest of Eight Thousand Two Hundred Thirty-Eight and 16/100 Dollars
($8,238.16), plus attorneys' fees and other costs which are payable under the
Original Note.
R-4. The Borrower is in violation of certain financial covenants and
ratios contained in the Original Loan Agreement.
R-5. The Borrower has requested that the Lender make certain
modifications to the loan evidenced by the Original Note including waiving
certain financial covenants and ratios and the Lender has agreed to do so upon
the terms and conditions set forth in an Amended and Restated Loan Agreement and
Security Agreement of even date herewith, which amends and restates the Original
Loan Agreement and the Original Security Agreement in their entireties (the
Original Loan Agreement and the Original Security Agreement, as amended and
restated thereby, are called the "Loan Agreement").
R-6. As a condition of entering into the Loan Agreement, the Lender has
required that the Borrower execute and deliver a restatement of the Original
Note and amendments to certain other notes, as described in the Loan Agreement.
R-7. Therefore, the Borrower is executing this Note amending and
restating the Original Note in its entirety as hereinafter more fully set forth.
R-8. This Note shall evidence the terms of repayment of an indebtedness
equal to the principal amount of Six Million Dollars ($6,000,000) with interest
and costs as described herein. All of the terms of the Original Note shall be
merged herein.
R-9. The Borrower warrants that the statements set forth in these
Recitals are true and correct and that the Borrower has no claim, counter-claim,
set-off or defense to the Original Note or to the collection of the indebtedness
evidenced thereby.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Borrower and the Lender agree that the Original Note is amended and restated
with respect to the indebtedness evidenced hereby, but without novation, as
follows:
REVOLVING CREDIT NOTE
$6,000,000 Baltimore, Maryland
FOR VALUE RECEIVED, EA ENGINEERING SCIENCE AND TECHNOLOGY,
INC. (the "Borrower"), promises to pay to the order of SIGNET BANK, its
successors and assigns (the "Lender"), the principal sum of SIX MILLION DOLLARS
($6,000,000) (the "Principal Sum"), or so much thereof as has been advanced,
together with interest computed daily on the outstanding principal balance
hereunder, at an annual interest rate, and in accordance with the payment
schedule, indicated below.
1. Interest Rate. This Note shall bear interest as follows:
Commencing on the date hereof, interest shall accrue on the
unpaid Principal Sum at a fluctuating rate of interest equal to the Prime Rate
(as hereinafter defined) of the Lender plus three percent (3%) per annum (the
"Base Rate"), such interest rate to change automatically as of the effective
date of each change in the Prime Rate, provided that interest shall be payable
at a rate equal to the Base Rate plus ten percent (10%) on that amount of the
unpaid Principal Sum which exceeds the Borrowing Base (as defined in an Amended
and Restated Loan and Security Agreement of even date herewith between the
Borrower and the Lender (the "Loan Agreement")).
The term "Prime Rate" means the rate announced by the Lender
from time to time as its prime rate, as such rate may change from time to time
with changes to occur on the date the Lender's prime rate changes. The Lender's
prime rate is one of several interest rate bases used by the Lender. The Lender
lends at rates above and below the Lender's prime rate, and the Borrower
acknowledges that the Lender's prime rate is not represented or intended to be
the lowest or most favorable rate of interest offered by the Lender.
Interest shall be computed for the actual number of days which
have elapsed, on the basis of a 360-day year.
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Notwithstanding any provision of this Note, the Lender does
not intend to charge and the Borrower shall not be required to pay any amount of
interest or other charges in excess of the maximum permitted by the applicable
law of the State of Maryland; if any higher rate ceiling is lawful, then that
higher rate ceiling shall apply. Any payment in excess of such maximum shall be
refunded to the Borrower or credited against principal, at the option of the
Lender.
2. Advances. The Lender may lend, advance or make financial
accommodations to or for the Borrower from time to time in such amounts as the
Borrower may request from the Lender pursuant to the Loan Agreement, and all of
such amounts shall be evidenced by this Note and shall be repayable in
accordance with the terms of this Note. The date and amounts of each advance
made by the Lender to the Borrower and each payment made by the Borrower to the
Lender shall be recorded by the Lender on the books and records of the Lender,
which books and records, absent manifest error, shall be presumed correct and
accurate.
3. Payments.
(a) Interest shall be payable monthly on the first day of
each month commencing on the first day of May, 1997.
(b) In the event that the unpaid Principal Sum exceeds the
Borrowing Base on the date which is two (2) weeks from the date of any Temporary
Overadvance (as defined in the Loan Agreement), the Borrower shall pay to the
Lender the amount by which the unpaid Principal Sum exceeds the Borrowing Base
on such date.
4. Maturity. Unless sooner paid, the unpaid Principal Sum, together
with interest accrued and unpaid thereon, and all other unpaid sums due
hereunder, shall be due and payable in full on November 30, 1997.
5. Default Interest. Upon the occurrence of an Event of Default (as
hereinafter defined) the unpaid Principal Sum shall bear interest thereafter
until such Event of Default is cured at a rate which is at all times equal to
two percent (2%) per annum in excess of the rate or rates of interest otherwise
payable hereunder.
6. Late Charges. In the event that any payment due under the terms of
this Note is not received by the Lender within ten (10) days of the date such
payment is due (inclusive of the date when due), the Borrower shall pay to the
Lender on demand a late charge equal to five percent (5%) of such payment.
7. Application and Place of Payments. All payments made on account of
this Note, including prepayments, shall be applied first to the payment of any
late charge then due hereunder, second to the payment of accrued and unpaid
interest then due hereunder, and the remainder, if any, shall be applied to the
unpaid Principal Sum. All payments on account of this Note shall be paid in
lawful money of the United States of America in immediately available funds
during regular business hours of the Lender at 0 Xx. Xxxx Xxxxxx, Xxxxxxxxx,
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Xxxxxxxx or at such other times and places as the Lender may at any time and
from time to time designate in writing to the Borrower.
8. Loan Documents. The term "Loan Documents" as used in this Note shall
mean collectively this Note, the Loan Agreement and any other instrument or
agreement previously, simultaneously or hereafter executed and delivered by the
Borrower or any person as evidence of, security for, guarantee of, or in
connection with this Note or the Principal Sum evidenced hereby.
9. Security. This Note is secured by, among other things, the Loan
Agreement.
10. Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default (individually, an "Event
of Default" and collectively, the "Events of Default") under the terms of this
Note:
(a) The failure of the Borrower to pay to the Lender when due
any and all amounts payable by the Borrower to the Lender under the terms of
this Note; or
(b) The occurrence of a default or an Event of Default under
the terms and conditions of any of the other Loan Documents; or
(c) The occurrence of a default or an Event of Default under
the terms and conditions of a Promissory Note dated November 25, 1991 in the
original principal amount of $1,600,000, as amended by a Modification of Note of
even date herewith, or a Promissory Note dated November 21, 1991 in the original
principal amount of $1,800,000, as amended by a Modification of Note of even
date herewith.
11. Remedies. Upon the occurrence of an Event of Default, at the option
of the Lender, all amounts payable by the Borrower to the Lender under the terms
of this Note shall immediately become due and payable by the Borrower to the
Lender without notice to the Borrower or any person, and the Lender shall have
all of the rights, powers, and remedies available under the terms of this Note,
any of the other Loan Documents and all applicable laws. The Borrower and all
endorsers, guarantors, and other parties who may now or in the future be
primarily or secondarily liable for the payment of the indebtedness evidenced by
this Note hereby severally waive presentment, protest and demand, notice of
protest, notice of demand and of dishonor and non-payment of this Note and
expressly agree that this Note or any payment hereunder may be extended from
time to time without in any way affecting the liability of the Borrower,
guarantors and endorsers.
12. Confessed Judgment. If an Event of Default shall occur hereunder or
under the Loan Agreement, the Borrower hereby authorizes any clerk of any court
of record or any attorney to enter in any court of competent jurisdiction in the
State of Maryland or any other state or territory of the United States judgment
by confession against the Borrower in favor of the holder of this Note for the
entire principal amount of this Note then remaining unpaid with
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interest thereon, together with attorneys' fees equal to fifteen percent (15%)
of the unpaid Principal Sum for each confession of judgment and court costs,
hereby waiving and releasing, to the extent permitted by law, all errors and
defenses and all rights of exemption, appeal, stay of execution, inquisition and
extension upon any levy on real estate or personal property to which each such
obligor may otherwise be entitled under the laws of the United States or of any
state or possession of the United States now in force or which may hereafter be
passed. No single exercise of the foregoing power to confess judgment shall be
deemed to exhaust the power, whether or not any such exercise shall be held by
any court to be invalid, voidable or void, but the power shall continue
undiminished, and it may be exercised from time to time as often as the holder
of this Note shall elect, until such time as the holder of this Note shall have
received payment in full of all indebtedness of the Borrower to the holder of
this Note.
13. Consent to Jurisdiction. The Borrower irrevocably submits to the
jurisdiction of any state or federal court sitting in the State of Maryland over
any suit, action, or proceeding arising out of or relating to this Note. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection that the Borrower may now or hereafter have to the laying of venue of
any such suit, action, or proceeding brought in any such court and any claim
that any such suit, action, or proceeding brought in any such court has been
brought in an inconvenient forum. Final judgment in any such suit, action, or
proceeding brought in any such court shall be conclusive and binding upon the
Borrower and may be enforced in any court in which the Borrower is subject to
jurisdiction by a suit upon such judgment provided that service of process is
effected upon the Borrower as provided in this Note or as otherwise permitted by
applicable law.
14. Service of Process. The Borrower hereby consents to process being
served in any suit, action, or proceeding instituted in connection with this
Note by (i) the mailing of a copy thereof by certified mail, postage prepaid,
return receipt requested, to the Borrower and (ii) serving a copy thereof upon
Xxxxxxxxxx X. Xxxxxx, Esquire, Semmes, Xxxxx & Xxxxxx, 000 X. Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, the agent hereby designated and appointed by
the Borrower as the Borrower's agent for service of process. The Borrower
irrevocably agrees that such service shall be deemed to be service of process
upon the Borrower in any such suit, action, or proceeding. Nothing in this Note
shall affect the right of the Lender to serve process in any manner otherwise
permitted by law and nothing in this Note will limit the right of the Lender
otherwise to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions.
15. Waiver of Trial by Jury. The Borrower and the Lender hereby waive
trial by jury in any action or proceeding to which the Borrower and the Lender
may be parties, arising out of or in any way pertaining to (a) this Note or (b)
the other Loan Documents. It is agreed and understood that this waiver
constitutes a waiver of trial by jury of all claims against all parties to such
actions or proceedings, including claims against parties who are not parties to
this Note. This waiver is knowingly, willingly and voluntarily made by the
Borrower, and the Borrower hereby represents that no representations of fact or
opinion have been made by any individual to induce this waiver
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of trial by jury or to in any way modify or nullify its effect. The Borrower
further represents that it has been represented in the signing of this Note
and in the making of this waiver by independent legal counsel, selected of
its own free will, and that it has had the opportunity to discuss this waiver
with counsel.
16. Expenses. The Borrower promises to pay to the Lender on demand
by the Lender all costs and expenses incurred by the Lender in connection with
the collection and enforcement of this Note, including, without limitation,
all attorneys' fees and expenses and all court costs.
17. Notices. Any notice, request, or demand to or upon the Borrower or
the Lender shall be deemed to have been properly given or made when delivered
in accordance with Section 7.10. of the Loan Agreement.
18. Partial Invalidity. If any provision of this Note (or any part of
any provision) is held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision (or remaining part of the
affected provision) of this Note; but this Note shall be construed as if such
invalid, illegal, or unenforceable provision (or part thereof) had not been
contained in this Note, but only to the extent it is invalid, illegal, or
unenforceable.
19. Captions. The captions herein set forth are for convenience only
and shall not be deemed to define, limit, or describe the scope or intent of
this Note.
20. Governing Law. The provisions of this Note shall be construed,
interpreted and enforced in accordance with the laws of the State of Maryland
as the same may be in effect from time to time.
21. Miscellaneous. Each right, power, and remedy of the Lender as
provided for in this Note or any of the other Loan Documents, or now or
hereafter existing under any applicable law or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power, or remedy
provided for in this Note or any of the other Loan Documents or now or hereafter
existing under any applicable law, and the exercise or beginning of the exercise
by the Lender of any one or more of such rights, powers, or remedies shall not
preclude the simultaneous or later exercise by the Lender of any or all such
other rights, powers, or remedies. No failure or delay by the Lender to insist
upon the strict performance of any term, condition, covenant, or agreement of
this Note or any of the other Loan Documents, or to exercise any right, power,
or remedy consequent upon a breach thereof, shall constitute a waiver of any
such term, condition, covenant, or agreement or of any such breach, or preclude
the Lender from exercising any such right, power, or remedy at a later time or
times. By accepting payment after the due date of any amount payable under the
terms of this Note, the Lender shall not be deemed to waive the right either to
require prompt payment when due of all other amounts payable under the terms of
this Note or to declare an Event of Default for the failure to effect such
prompt payment of any such other amount. No course of dealing or
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conduct shall be effective to amend, modify, waive, release, or change any
provisions of this Note.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal as of the date first written above.
WITNESS/ATTEST: EA ENGINEERING SCIENCE AND
TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
_______________________________ _________________________(SEAL)
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
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MODIFICATION OF PROMISSORY NOTE
THIS MODIFICATION OF PROMISSORY NOTE (this "Modification") is made this
18th day of April, 1997 between EA ENGINEERING SCIENCE AND TECHNOLOGY, INC. (the
"Borrower") and SIGNET BANK (the "Lender").
Preliminary Statements; Certain Defined Terms
A. The Lender made a loan (the "Loan") evidenced by a Promissory Note
dated November 21, 1991 in the original principal amount of $1,800,000 (the
"Note"). A copy of the Note is attached as Exhibit A.
B. The Note is secured by, among other things, a Security Agreement
dated March 27, 1997 by the Borrower in favor of the Lender, whereby the
Borrower granted to the Lender a security interest in the Collateral as defined
therein (the "Original Security Agreement").
C. The Note, the Original Security Agreement and all other documents
evidencing, securing, guaranteeing or otherwise related to the Loan are
collectively called the "Loan Documents."
D. As of April 17, 1997, there is due under the Note principal of Four
Hundred Twenty-Eight Thousand Five Hundred Seventy-One and 52/100 Dollars
($428,571.52) and interest of Two Thousand Five Hundred Ninety-Three and 48/100
Dollars ($2,593.48), plus attorneys' fees and other costs which are payable
under the Note.
E. The Borrower is in violation of certain financial covenants and
ratios contained in a Loan Agreement dated October 31, 1996 (the "Original Loan
Agreement"), which relates to another debt owed by the Borrower to the Lender.
F. The Borrower has requested that the Lender make certain
modifications with respect to such other debt including waiving certain
financial covenants and ratios and the Lender has agreed to do so upon the terms
and conditions set forth in an Amended and Restated Loan Agreement and Security
Agreement of even date herewith, which amends and restates the Original Loan
Agreement and the Original Security Agreement in their entireties (the Original
Loan Agreement and the Original Security Agreement, as amended and restated
thereby, are called the "Loan Agreement").
G. As a condition of entering into the Loan Agreement, the Lender
has required that the Borrower execute and deliver this Modification.
H. Therefore, the Borrower is executing this Modification amending the
Note as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Borrower and the Lender agree as follows:
1. The Note is amended to shorten the maturity date from November 21,
1998 to November 30, 1997. The Borrower acknowledges that the installments of
principal payable under the Note will not fully amortize the principal by the
maturity date of the Note, as modified hereby, and that the remaining principal
balance, together with all accrued and unpaid interest and other sums due under
the Note, will be due on the maturity date of the Note, as modified hereby.
2. If an Event of Default shall occur under the Loan Agreement, the
Borrower hereby authorizes any clerk of any court of record or any attorney to
enter in any court of competent jurisdiction in the State of Maryland or any
other state or territory of the United States judgment by confession against the
Borrower in favor of the holder of the Note for the entire principal amount of
the Note then remaining unpaid with interest thereon, together with attorneys'
fees equal to fifteen percent (15%) of the unpaid Principal Sum for each
confession of judgment and court costs, hereby waiving and releasing, to the
extent permitted by law, all errors and defenses and all rights of exemption,
appeal, stay of execution, inquisition and extension upon any levy on real
estate or personal property to which each such obligor may otherwise be entitled
under the laws of the United States or of any state or possession of the United
States now in force or which may hereafter be passed. No single exercise of the
foregoing power to confess judgment shall be deemed to exhaust the power,
whether or not any such exercise shall be held by any court to be invalid,
voidable or void, but the power shall continue undiminished, and it may be
exercised from time to time as often as the holder of the Note shall elect,
until such time as the holder of the Note shall have received payment in full of
all indebtedness of the Borrower to the holder of the Note.
3. The Borrower irrevocably submits to the jurisdiction of any state or
federal court sitting in the State of Maryland over any suit, action, or
proceeding arising out of or relating to the Note. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection that the Borrower
may now or hereafter have to the laying of venue of any such suit, action, or
proceeding brought in any such court and any claim that any such suit, action,
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action, or proceeding brought in any
such court shall be conclusive and binding upon the Borrower and may be enforced
in any court in which the Borrower is subject to jurisdiction by a suit upon
such judgment provided that service of process is effected upon the Borrower as
provided in the Note or as otherwise permitted by applicable law.
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4. The Borrower hereby consents to process being served in any suit,
action, or proceeding instituted in connection with the Note by (i) the mailing
of a copy thereof by certified mail, postage prepaid, return receipt requested,
to the Borrower and (ii) serving a copy thereof upon Xxxxxxxxxx X. Xxxxxx,
Esquire, Semmes, Xxxxx & Xxxxxx, 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, the agent hereby designated and appointed by the Borrower as the
Borrower's agent for service of process. The Borrower irrevocably agrees that
such service shall be deemed to be service of process upon the Borrower in any
such suit, action, or proceeding. Nothing in the Note shall affect the right of
the Lender to serve process in any manner otherwise permitted by law and nothing
in the Note will limit the right of the Lender otherwise to bring proceedings
against the Borrower in the courts of any jurisdiction or jurisdictions.
5. Nothing in this Modification changes any interest rate or other
term or condition applicable to the Note prior to the date of this Modification.
6. This Modification does not extinguish the outstanding indebtedness
evidenced by the Note. Nothing herein contained shall be construed as a
substitution or novation of the original indebtedness or of the instruments
securing the same, which shall remain in full force and effect, except as
modified hereby or by instruments executed concurrently herewith. The Note as
modified hereby remains in full force and effect in accordance with its terms
and constitutes a binding obligation of the Borrower to the Lender. No further
modifications shall be effective unless in writing and signed by the Lender.
7. The Borrower acknowledges and agrees that the indebtedness evidenced
by the Note is owed to the Lender without any setoffs, claims or defenses of any
kind, and the Borrower forever waives and relinquishes any and all defenses and
claims, of any kind, known or unknown, that the Borrower may have against the
Lender with regard to the Loan.
8. The Borrower and the Lender voluntarily and intentionally mutually
waive any right each may have to a trial by jury in any action, proceeding, or
litigation directly or indirectly arising out of, under or in connection with
this Modification, the Note, any other Loan Documents or any transactions
contemplated thereby.
9. The Borrower shall reimburse the Lender for all reasonable
attorneys' fees, costs and expenses advanced or incurred in collecting and
enforcing the Note and/or the other Loan Documents, and/or in successfully
defending or prosecuting any actions or proceedings arising out of or relating
to the Note and/or the other Loan Documents. Until paid in full, all such fees,
costs and expenses to be paid by the Borrower shall bear interest from the date
such fees, costs or expenses are advanced or incurred by the Lender, at the then
applicable rate of interest on the Note.
10. This Modification may be executed in counterparts and each shall be
effective as an original.
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11. This Modification represents the entire agreement of the parties
hereto as it relates to the contents hereof; all prior oral and written
communications are merged herein.
12. The provisions of this Modification shall be construed, interpreted
and enforced in accordance with the laws of the State of Maryland as the same
may be in effect from time to time.
IN WITNESS WHEREOF, the parties have executed, or caused to be
executed, this Modification of Promissory Note under seal effective as of the
date first above written.
WITNESS/ATTEST: EA ENGINEERING SCIENCE AND
TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
_______________________________ _________________________(SEAL)
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
SIGNET BANK
By: /s/ Xxxxxxx Xxxxxxxxx
_______________________________ _________________________(SEAL)
Xxxxxxx Xxxxxxxxx
Senior Vice President
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MODIFICATION OF PROMISSORY NOTE
THIS MODIFICATION OF PROMISSORY NOTE (this "Modification") is made this
18th day of April, 1997 between EA ENGINEERING SCIENCE AND TECHNOLOGY, INC. (the
"Borrower") and SIGNET BANK (the "Lender").
Preliminary Statements; Certain Defined Terms
A. The Lender made a loan (the "Loan") evidenced by a Promissory Note
dated November 25, 1991 in the original principal amount of $1,600,000 (the
"Note"). A copy of the Note is attached as Exhibit A.
B. The Note is secured by, among other things, a Security Agreement
dated March 27, 1997 by the Borrower in favor of the Lender, whereby the
Borrower granted to the Lender a security interest in the Collateral as defined
therein (the "Original Security Agreement").
C. The Note, the Original Security Agreement and all other documents
evidencing, securing, guaranteeing or otherwise related to the Loan are
collectively called the "Loan Documents."
D. As of April 17, 1997, there is due under the Note principal of One
Hundred Seventy-Seven Thousand Seven Hundred Seventy-Seven and 92/100 Dollars
($177,777.92) and interest of Nine Hundred Forty-Eight and 38/100 Dollars
($948.38), plus attorneys' fees and other costs which are payable under the
Note.
E. The Borrower is in violation of certain financial covenants and
ratios contained in a Loan Agreement dated October 31, 1996 (the "Original Loan
Agreement"), which relates to another debt owed by the Borrower to the Lender.
F. The Borrower has requested that the Lender make certain
modifications with respect to such other debt including waiving certain
financial covenants and ratios and the Lender has agreed to do so upon the terms
and conditions set forth in an Amended and Restated Loan Agreement and Security
Agreement of even date herewith, which amends and restates the Original Loan
Agreement and the Original Security Agreement in their entireties (the Original
Loan Agreement and the Original Security Agreement, as amended and restated
thereby, are called the "Loan Agreement").
G. As a condition of entering into the Loan Agreement, the Lender
has required that the Borrower execute and deliver this Modification.
H. Therefore, the Borrower is executing this Modification amending the
Note as set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Borrower and the Lender agree as follows:
1. If an Event of Default shall occur under the Loan Agreement, the
Borrower hereby authorizes any clerk of any court of record or any attorney to
enter in any court of competent jurisdiction in the State of Maryland or any
other state or territory of the United States judgment by confession against the
Borrower in favor of the holder of the Note for the entire principal amount of
the Note then remaining unpaid with interest thereon, together with attorneys'
fees equal to fifteen percent (15%) of the unpaid Principal Sum for each
confession of judgment and court costs, hereby waiving and releasing, to the
extent permitted by law, all errors and defenses and all rights of exemption,
appeal, stay of execution, inquisition and extension upon any levy on real
estate or personal property to which each such obligor may otherwise be entitled
under the laws of the United States or of any state or possession of the United
States now in force or which may hereafter be passed. No single exercise of the
foregoing power to confess judgment shall be deemed to exhaust the power,
whether or not any such exercise shall be held by any court to be invalid,
voidable or void, but the power shall continue undiminished, and it may be
exercised from time to time as often as the holder of the Note shall elect,
until such time as the holder of the Note shall have received payment in full of
all indebtedness of the Borrower to the holder of the Note.
2. The Borrower irrevocably submits to the jurisdiction of any state or
federal court sitting in the State of Maryland over any suit, action, or
proceeding arising out of or relating to the Note. The Borrower irrevocably
waives, to the fullest extent permitted by law, any objection that the Borrower
may now or hereafter have to the laying of venue of any such suit, action, or
proceeding brought in any such court and any claim that any such suit, action,
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action, or proceeding brought in any
such court shall be conclusive and binding upon the Borrower and may be enforced
in any court in which the Borrower is subject to jurisdiction by a suit upon
such judgment provided that service of process is effected upon the Borrower as
provided in the Note or as otherwise permitted by applicable law.
3. The Borrower hereby consents to process being served in any suit,
action, or proceeding instituted in connection with the Note by (i) the mailing
of a copy thereof by certified mail, postage prepaid, return receipt requested,
to the Borrower and (ii) serving a copy thereof upon Xxxxxxxxxx X. Xxxxxx,
Esquire, Semmes, Xxxxx & Xxxxxx, 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, the agent hereby designated and appointed by the Borrower as the
Borrower's agent for service of process. The Borrower irrevocably agrees that
such service shall be deemed to be service of process upon the Borrower in any
such suit, action, or proceeding. Nothing in the Note shall affect the right of
the Lender to serve process
-2-
in any manner otherwise permitted by law and nothing in the Note will limit the
right of the Lender otherwise to bring proceedings against the Borrower in
the courts of any jurisdiction or jurisdictions.
4. Nothing in this Modification changes any interest rate or other term
or condition applicable to the Note prior to the date of this Modification.
5. This Modification does not extinguish the outstanding indebtedness
evidenced by the Note. Nothing herein contained shall be construed as a
substitution or novation of the original indebtedness or of the instruments
securing the same, which shall remain in full force and effect, except as
modified hereby or by instruments executed concurrently herewith. The Note as
modified hereby remains in full force and effect in accordance with its terms
and constitutes a binding obligation of the Borrower to the Lender. No further
modifications shall be effective unless in writing and signed by the Lender.
6. The Borrower acknowledges and agrees that the indebtedness evidenced
by the Note is owed to the Lender without any setoffs, claims or defenses of any
kind, and the Borrower forever waives and relinquishes any and all defenses and
claims, of any kind, known or unknown, that the Borrower may have against the
Lender with regard to the Loan.
7. The Borrower and the Lender voluntarily and intentionally mutually
waive any right each may have to a trial by jury in any action, proceeding, or
litigation directly or indirectly arising out of, under or in connection with
this Modification, the Note, any other Loan Documents or any transactions
contemplated thereby.
8. The Borrower shall reimburse the Lender for all reasonable
attorneys' fees, costs and expenses advanced or incurred in collecting and
enforcing the Note and/or the other Loan Documents, and/or in successfully
defending or prosecuting any actions or proceedings arising out of or relating
to the Note and/or the other Loan Documents. Until paid in full, all such fees,
costs and expenses to be paid by the Borrower shall bear interest from the date
such fees, costs or expenses are advanced or incurred by the Lender, at the then
applicable rate of interest on the Note.
9. This Modification may be executed in counterparts and each shall be
effective as an original.
10. This Modification represents the entire agreement of the parties
hereto as it relates to the contents hereof; all prior oral and written
communications are merged herein.
11. The provisions of this Modification shall be construed, interpreted
and enforced in accordance with the laws of the State of Maryland as the same
may be in effect from time to time.
-3-
IN WITNESS WHEREOF, the parties have executed, or caused to be
executed, this Modification of Promissory Note under seal effective as of the
date first above written.
WITNESS/ATTEST: EA ENGINEERING SCIENCE AND
TECHNOLOGY, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
___________________________ _________________________(SEAL)
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
SIGNET BANK
By: /s/ Xxxxxxx Xxxxxxxxx
___________________________ _________________________(SEAL)
Xxxxxxx Xxxxxxxxx
Senior Vice President
-4-
