AMENDED AND RESTATED
REVOLVER NOTE
____________________, Pennsylvania
$17,500,000.00 Dated: December _____, 1998
FOR VALUE RECEIVED AND INTENDING TO BE LEGALLY BOUND, the undersigned
("Borrower"), hereby promises to pay to the order of MELLON BANK, N.A.
("Lender"), ON DEMAND after the occurrence of an Event of Default or after
expiration of the Contract Period, the principal sum of Seventeen Million Five
Hundred Thousand Dollars ($17,500,000.00), or such greater or lesser principal
amount as may be outstanding from time to time under Xxxxxx's Pro Rata Share of
the revolving credit facility established by Xxxxxxx for the benefit of Borrower
pursuant to the terms of that certain Loan Agreement dated April 9, l998, as
amended by that certain Amendment and Modification to Loan Agreement of even
date herewith among Borrower, First Union National Bank (successor by merger to
CoreStates Bank, N.A.) as Agent ("Agent"), and the Lenders identified therein,
including Lender (such Loan Agreement, as the same has been and may hereafter be
amended, supplemented or restated from time to time, being the "Loan
Agreement"), together with interest thereon, upon the following terms:
1. Revolver Note. This Note is a "Revolver Note" as defined in the Loan
Agreement and, as such, shall be construed in accordance with all terms and
conditions thereof. Capitalized terms not defined herein shall have such meaning
as provided in the Loan Agreement. This Note is entitled to all the rights and
remedies provided in the Loan Agreement and the Loan Documents and is secured by
all collateral as described therein.
2. Interest Rate. Interest on the unpaid principal balance hereof will
accrue from the date of advance until final payment thereof at the rate or rates
described in Section 3.1 of the Loan Agreement.
3. Default Interest. Interest will accrue on the outstanding principal
amount hereof following the occurrence of an Event of Default or the expiration
of the Contract Period until paid at a rate per annum which is two percent (2%)
in excess of the rate payable under Paragraph 2 above (the "Default Rate").
4. Post Judgment Interest. Any judgment obtained for sums due hereunder or
under the Loan Documents will accrue interest at the Default Rate until paid.
5. Computation. Interest will be computed on the basis of a year of three
hundred sixty (360) days and paid for the actual number of days elapsed.
6. Interest Payments. Interest which accrues on the outstanding principal
balance hereof at the applicable rate set forth above shall be due and payable
as provided in Section 4.1 of the Loan Agreement.
7. Place of Payment. Principal and interest hereunder shall be payable as
provided in the Loan Agreement, or at such other place as Agent, from time to
time, may designate in writing.
8. Default; Remedies. Upon the occurrence of an Event of Default or upon
demand as provided above, Agent, at its option and without notice to Borrower,
may declare immediately due and payable the entire unpaid balance of principal
and all other sums due by Borrower hereunder or under the Loan Documents,
together with interest accrued thereon at the applicable rate specified above.
Payment thereof may be enforced and recovered in whole or in part at any time
and from time to time by one or more of the remedies provided to Agent and/or
Lender in this Note or in the Loan Documents or as otherwise provided at law or
in equity, all of which remedies are cumulative and concurrent.
9. Waivers. Borrower and all endorsers, jointly and severally, waive
presentment for payment, demand, notice of demand, notice of nonpayment or
dishonor, protest and notice of protest of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of
the payment of this Note, except for such notices, if any, as are expressly
required to be delivered by Agent or Lender to Borrower under the Loan
Agreement.
10. Miscellaneous. If any provisions of this Note shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof. This Note has been delivered in and shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to the law of conflicts. This Note shall be binding upon Xxxxxxxx
and upon Xxxxxxxx's successors and assigns and shall benefit Xxxxxx and its
successors and assigns. The prompt and faithful performance of all of Xxxxxxxx's
obligations hereunder, including without limitation, time of payment, is of the
essence of this Note.
11. Confession of Judgment. XXXXXXXX HEREBY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR IN ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT
BY CONFESSION, TO APPEAR FOR BORROWER AT ANY TIME AFTER DEMAND HEREUNDER AS
PROVIDED ABOVE OR AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THE LOAN
AGREEMENT IN ANY ACTION BROUGHT AGAINST BORROWER ON THIS NOTE OR THE LOAN
DOCUMENTS AT THE SUIT OF LENDER AND/OR AGENT, WITH OR WITHOUT COMPLAINT OR
DECLARATION FILED, WITHOUT STAY OF EXECUTION, AS OF ANY TERM OR TIME, AND
THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE UNPAID
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AND ALL OTHER SUMS TO BE PAID BY
BORROWER TO OR ON BEHALF OF XXXXXX PURSUANT TO THE TERMS HEREOF OR OF THE LOAN
DOCUMENTS AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH ALL COSTS AND
OTHER EXPENSES AND AN ATTORNEY'S COLLECTION COMMISSION OF FIFTEEN PERCENT (15%)
OF THE AGGREGATE AMOUNT OF THE FOREGOING SUMS, BUT IN NO EVENT LESS THAN
$5,000.00; AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT
SHALL BE A SUFFICIENT WARRANT.
THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY
ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL
PAYMENT IN FULL OF ALL THE AMOUNTS DUE HEREUNDER. XXXXXXXX ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF
THIS NOTE AND THAT IT KNOWINGLY WAIVES ITS RIGHT TO BE HEARD PRIOR TO THE ENTRY
OF SUCH JUDGMENT AND UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH JUDGMENT SHALL
BECOME A LIEN ON ALL REAL PROPERTY OF BORROWER IN THE COUNTY WHERE SUCH JUDGMENT
IS ENTERED.
12. Jury Trial Waiver. XXXXXXXX WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER ANY OF THE LOAN
DOCUMENTS OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF BORROWER OR LENDER WITH RESPECT TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. XXXXXXXX AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THE LOAN AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
BORROWER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY. XXXXXXXX ACKNOWLEDGES THAT
IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS PARAGRAPH,
THAT IT FULLY UNDERSTANDS ITS TERMS, CONTENT AND EFFECT, AND THAT IT VOLUNTARILY
AND KNOWINGLY AGREES TO THE TERMS OF THIS PARAGRAPH.
13. No Novation. This Note constitutes the increase, amendment and
restatement of that certain Revolving Note dated April 9, 1998 in the original
principal amount of Fifteen Million Dollars ($15,000,000.00) executed by
Borrower payable to the order of Lender (the "Prior Note"), and, as such, is
secured by all liens, security interests, assignments, pledges, rights and
remedies securing the Prior Note and evidences all indebtedness previously
advanced and unpaid under the Prior Note. Nothing contained herein shall be
deemed to constitute a novation, termination, waiver, release, satisfaction,
accord or accord and satisfaction of the Prior Note or any indebtedness
evidenced thereby.
IN WITNESS WHEREOF, Xxxxxxxx, intending to be legally bound hereby, has
caused this Note to be duly executed the day and year first above written.
THE JPM COMPANY
By:____________________________________________
Name/Title:
(CORPORATE SEAL)
Attest:________________________________________
Xxxxx X. Xxxxxxxxx, Corporate Secretary
