SECOND
AMENDED AND RESTATED
SWINGLINE NOTE
$15,000,000 Houston, Texas
June 20, 2000
ON OR BEFORE the Termination Date (as defined in the Credit
Agreement hereinafter referred to), the undersigned, for value
received, hereby promises to pay to the order of Chase Bank of
Texas, National Association, at 000 Xxxx, Xxxxxxx, Xxxxx 00000, as
Administrative Agent under the Credit Agreement (the "Agent"), for
the account of the Swingline Lenders, the principal sum of FIFTEEN
MILLION DOLLARS ($15,000,000) or, if less, the aggregate unpaid
principal amount of all Swingline Loans made by the Swingline
Lenders to the undersigned hereunder.
The undersigned further promises to pay to the order of the
Agent for the account of the Swingline Lenders, interest on the
principal sum from time to time outstanding at the rates and at
the times set forth in the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Second Amended and
Restated Revolving Credit Agreement dated as of June 20, 2000
(herein, as amended, modified, restated, supplemented, extended,
refinanced, refunded or renewed, from time to time, called the
"Credit Agreement"), among the undersigned, various banks from
time to time party thereto, and the Agent, to which Credit
Agreement reference is hereby made for a statement of said terms
and provisions, including those under which this Note may be paid
prior to its due date or its due date accelerated. Terms used but
not otherwise defined herein shall have the same meaning as such
terms have in the Credit Agreement.
It is contemplated that by reason of prepayments or
repayments hereon prior to the Termination Date, there may be
times when no indebtedness is owing hereunder prior to such date,
but notwithstanding such occurrences, this Note shall remain valid
and shall be in full force and effect as to Loans made pursuant to
the Credit Agreement subsequent to each such occurrence.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the undersigned
further agrees to pay on demand all reasonable attorneys' fees and
legal expenses incurred by the Agent and the Swingline Lenders in
connection with the collection and enforcement of this Note, and
any and all amendments, modifications, restatements, supplements,
extensions, refinancings, refunds and renewals relating to this
Note.
All agreements between the undersigned, the Agent and the
Swingline Lenders, whether now existing or hereafter arising and
whether written or oral, are hereby expressly limited so that in
no contingency or event whatsoever, whether by reason of demand
being made on this Note or otherwise, shall the amount contracted
for, charged, reserved or received by the Agent or the Swingline
Lenders for the use, forbearance, or detention of the money to be
loaned under the Credit Agreement or otherwise or for the payment
or performance of any covenant or obligation contained therein or
herein exceed the Highest Lawful Rate. If, as a result of any
circumstances whatsoever, fulfillment by the undersigned of any
provision of the Credit Agreement or of this Note, at the time
performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury
law or result in the Agent (on behalf of the Swingline Lenders) or
the Swingline Lenders having or being deemed to have contracted
for, charged, reserved or received interest (or amounts deemed to
be interest) in excess of the maximum lawful rate or amount of
interest allowed by applicable law to be so contracted for,
charged, reserved or received by the Agent (on behalf of the
Swingline Lenders) or the Swingline Lenders, then, ipso facto, the
obligation to be fulfilled by the undersigned shall be reduced to
the limit of such validity, and if, from any such circumstance,
the Agent (on behalf of the Swingline Lenders) or the Swingline
Lenders shall ever receive interest or anything which might be
deemed interest under applicable law which would exceed the
Highest Lawful Rate, such amount which would be excessive interest
shall be refunded to the undersigned, or, to the extent (i)
permitted by applicable law and (ii) such excessive interest does
not exceed the unpaid principal balance of the Note and the
amounts owing on other obligations of the undersigned to the Agent
(on behalf of the Swingline Lenders) or the Swingline Lenders
under the Credit Agreement and the Note, applied to the reduction
of the principal amount owing on account of the Note or the
amounts owing on other obligations of the undersigned to the Agent
(on behalf of the Swingline Lenders) or the Swingline Lenders
under the Credit Agreement and the Note and not to the payment of
interest. All sums paid or agreed to be paid to the Agent (on
behalf of the Swingline Lenders) or the Swingline Lenders for the
use, forbearance, or detention of the indebtedness of the
undersigned to the Agent (on behalf of the Swingline Lenders) or
to the Swingline Lenders shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread
throughout the full term of such indebtedness until payment in
full of the principal thereof (including the period of any renewal
or extension thereof) so that the interest on account of such
indebtedness shall not exceed the Highest Lawful Rate. The terms
and provisions of this paragraph shall control and supersede every
other provision hereof and of all other agreements between the
undersigned, the Agent and the Banks. "Highest Lawful Rate" shall
mean, with respect to the Swingline Lenders, 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 with respect to the Note or on other amounts, if any, due
to the Swingline Lenders pursuant to the Credit Agreement or the
Note, under laws applicable to the Swingline Lenders which are
presenting in effect, or to the extent allowed by law, under such
applicable laws that may hereafter be in effect and which allow a
higher maximum nonusurious interest rate than applicable laws now
allow. To the extent required by applicable law in determining
the Highest Lawful Rate with respect to the Swingline Lenders as
of any date, there shall be taken into account the aggregate
amount of all payments and charges theretofore charged, reserved
or received by the Swingline Lenders under the Credit Agreement or
under the Note which constitute or are deemed to constitute
interest under applicable law.
THIS NOTE IS MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF TEXAS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
Except as otherwise specifically provided for in the Credit
Agreement, the Borrower and any and all endorsers, guarantors and
sureties severally waive grace, demand, presentment for payment,
notice of dishonor or default, protest, notice of protest, notice
of intent to accelerate, notice of acceleration and diligence in
collecting and bringing of suit against any part hereto, and agree
to all renewals, extensions or partial payments hereon and to any
release or substitution of security hereof, in whole or in part,
with or without notice, before or after maturity.
This Note is an amendment and restatement, but not a
novation, of the Existing Swingline Note.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed and delivered by its officer thereunto duly authorized
effective as of the date first above written.
Address: NPC MANAGEMENT, INC.
000 Xxxx 00xx Xxxxxx By: /s/ Xxxx X. Xxxx
Pittsburgh, Kansas 66762 Title: Senior V.P.
Schedule attached to Note dated as of June 20, 2000, of NPC
MANAGEMENT, INC., payable to the order of Chase Bank of Texas,
National Association, as Agent for the account of the Swingline
Lenders.
LOANS AND PRINCIPAL PAYMENTS
Date of Type of Loan
Loan & Applicable Amount Nota-
Continuation Amount Interest Rate of Unpaid tion
or of Loan & Interest Principal Principal Made
Conversion Made Rate Repaid Balance By
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The aggregate unpaid principal amount shown on this schedule shall
be rebuttable presumptive evidence of the principal amount owing
and unpaid on this Note. The failure to record the date and
amount of any loan on this schedule shall not, however, limit or
otherwise affect the obligations of NPC MANAGEMENT, INC. under
this Note to repay the principal amount of the Loans together with
all interest accruing thereon.
