SECOND
AMENDED AND RESTATED
NOTE
$180,000,000 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 financial institutions which now or
hereafter become Banks under the Credit Agreement, ratably in
accordance with their respective Percentages, the principal sum
of ONE HUNDRED EIGHTY MILLION DOLLARS ($180,000,000) or, if less,
the aggregate unpaid principal amount of all Loans made by the
Banks to the undersigned hereunder.
The undersigned further promises to pay to the order of the
Agent for the account of the Banks ratably in accordance with
their respective Percentages, 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
Banks 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 any
Bank, 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 any Bank 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 or any Bank 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 or
such Bank, 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 or any Bank 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 or any Bank 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 or any
Bank 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 or any Bank for the use, forbearance, or detention of the
indebtedness of the undersigned to the Agent or to any Bank
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 each Bank, 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 such Bank pursuant to the Credit
Agreement or the Note, under laws applicable to such Bank 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 any Bank as
of any date, there shall be taken into account the aggregate
amount of all payments and charges theretofore charged, reserved
or received by such Bank 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 that certain Xxxxxxx and Restated Note dated as of
May 8, 1997 executed and delivered by the Borrower in favor the
Agent.
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 various Banks.
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.
