EXHIBIT 10.1
[CHASE LETTERHEAD]
TERM NOTE
$2,500,000.00
DUE: MARCH 31, 2014 DATE: DECEMBER 23, 2008
PROMISE TO PAY. On or before March 31, 2014, for value received, Blackwater New
Orleans, L.L.C. (the "Borrower") promises to pay to JPMorgan Chase Bank, N.A.,
whose address is 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 (the "Bank") or
order, in lawful money of the United States of America, the sum of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) or so much thereof as
may be advanced and outstanding, plus interest on the unpaid principal balance
computed on the basis of the actual number of days elapsed in a year of 360 days
at the rate of 1.50% per annum (the "Applicable Margin") above the CB Floating
Rate (the interest rate of this Note on any day is referred to herein as the
"Note Rate"), and at the rate of 3.00% per annum above the Note Rate, at the
Bank's option, upon the occurrence of any default under this Note, whether or
not the Bank elects to accelerate the maturity of this Note, from the date such
increased rate is imposed by the Bank.
In no event shall the interest rate exceed the maximum rate allowed by law. Any
interest payment that would for any reason be unlawful under applicable law
shall be applied to principal.
The Borrower will pay this sum in consecutive monthly installments of interest
only, commencing January 31, 2009, and continuing on the last day of each
calendar month thereafter. In addition, commencing April 30, 2009, and
continuing on the last day of each calendar month thereafter, the Borrower shall
pay principal installments of Forty-One Thousand Six Hundred Sixty-Six and
66/100 Dollars ($41,666.66). All unpaid principal and accrued and unpaid
interest is finally due and payable on March 31, 2014.
The Borrower shall make all payments on this Note and the other Related
Documents, without setoff, deduction, or counterclaim, to the Bank at the Bank's
address above or at such other place as the Bank may designate in writing. If
any payment of principal or interest on this Note shall become due on a day that
is not a Business Day, the payment will be made on the next succeeding Business
Day. Payments shall be allocated among principal, interest and fees at the
discretion of the Bank unless otherwise agreed or required by applicable law.
Acceptance by the Bank of any payment that is less than the payment due at that
time shall not constitute a waiver of the Bank's right to receive payment in
full at that time or any other time.
AUTHORIZATION FOR DIRECT PAYMENTS (ACH DEBITS). To effectuate any payment due
under this Note or under any other Related Documents, the Borrower hereby
authorizes the Bank to initiate debit entries to Account Number
______________________________ at the Bank and to debit the same to such
account. This authorization to initiate debit entries shall remain in full force
and effect until the Bank has received written notification of its termination
in such time and in such manner as to afford the Bank a reasonable opportunity
to act on it. The Borrower represents that the Borrower is and will be the owner
of all funds in such account. The Borrower acknowledges: (1) that such debit
entries may cause an overdraft of such account which may result in the Bank's
refusal to honor items drawn on such account until adequate deposits are made to
such account; (2) that the Bank is under no duty or obligation to initiate any
debit entry for any purpose; and (3) that if a debit is not made because the
above-referenced account does not have a sufficient available balance, or
otherwise, the payment may be late or past due.
LATE FEE. Any principal or interest which is not paid within 10 days after its
due date (whether as stated, by acceleration or otherwise) shall be subject to a
late payment charge of five percent (5.00%) of the total payment due, in
addition to the payment of interest, up to the maximum amount of One Thousand
Five Hundred and 00/100 Dollars ($1,500.00) per late charge. The Borrower agrees
to pay and stipulates that five percent (5.00%) of the total payment due is a
reasonable amount for a late payment charge. The Borrower shall pay the late
payment charge upon demand by the Bank or, if billed, within the time specified.
PURPOSE OF LOAN. The Borrower acknowledges and agrees that this Note evidences a
loan for a business, commercial, agricultural or similar commercial enterprise
purpose, and that no advance shall be used for any personal, family or household
purpose. The proceeds of the loan shall be used only for the Borrower's purchase
of real estate and improvements located at 000 Xxxxxxx Xx., Xxxxxxxx, XX.
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GENERAL DEFINITIONS. As used in this Note, the following terms have the
following respective meanings:
1. "ADJUSTED ONE MONTH LIBOR RATE" means, for any day, the sum of (i) 2.50%
per annum plus (ii) the quotient of (a) the interest rate determined by
the Bank by reference to the Page to be the rate at approximately 11:00
a.m. London time, on such date or, if such date is not a Business Day, on
the immediately preceding Business Day for dollar deposits with a maturity
equal to one (1) month, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to dollar deposits in the London
interbank market with a maturity equal to one (1) month.
2. "AFFILIATE" means any Person which, directly or indirectly, Controls or is
Controlled by or under common Control with, another Person, and any
director or officer thereof. The Bank is under no circumstances to be
deemed an Affiliate of the Borrower or any of its Subsidiaries.
3. "BUSINESS DAY" means (i) with respect to the Adjusted One Month LIBOR
Rate, a day (other than a Saturday or Sunday) on which banks generally are
open in Louisiana and/or New York for the conduct of substantially all of
their commercial lending activities and on which dealings in United States
dollars are carried on in the London interbank market and (ii) for all
other purposes, a day other than a Saturday, Sunday or any other day on
which national banking associations are authorized to be closed.
4. "CB FLOATING RATE" means the Prime Rate; PROVIDED that the CB Floating
Rate shall, on any day, not be less than the Adjusted One Month LIBOR
Rate. The CB Floating Rate is a variable rate and any change in the CB
Floating Rate due to any change in the Prime Rate or the Adjusted One
Month LIBOR Rate is effective from and including the effective date of
such change in the Prime Rate or the Adjusted One Month LIBOR Rate,
respectively.
5. "COLLATERAL" means all Property, now or in the future subject to any Lien
in favor of the Bank, securing or intending to secure, any of the
Liabilities.
6. "CONTROL" as used with respect to any Person, means the power to direct or
cause the direction of, the management and policies of that Person,
directly or indirectly, whether through the ownership of Equity Interests,
by contract, or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
7. "EQUITY INTERESTS" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests
in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase
or acquire any such equity interest.
8. "GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America, consistently applied.
9. "LIABILITIES" means all debts, obligations, and liabilities of every kind
and character of the Borrower, whether individual, joint and several
(solidary), contingent or otherwise, now or hereafter existing in favor of
the Bank, including without limitation, all liabilities, interest, costs
and fees, arising under or from any note, open account, overdraft, credit
card, lease, Rate Management Transaction, letter of credit application,
endorsement, surety agreement, guaranty, acceptance, foreign exchange
contract or depository service contract, whether payable to the Bank or to
a third party and subsequently acquired by the Bank, any monetary
obligations (including interest) incurred or accrued during the pendency
of any bankruptcy, insolvency, receivership or other similar proceedings,
regardless of whether allowed or allowable in such proceeding, and all
renewals, extensions, modifications, consolidations, rearrangements,
restatements, replacements or substitutions of any of the foregoing.
10. "LIEN" means any mortgage, deed of trust, pledge, charge, encumbrance,
security interest, collateral assignment or other lien or restriction of
any kind.
11. "OBLIGOR" means any Borrower, guarantor, surety, co-signer, endorser,
general partner or other Person who may now or in the future be obligated
to pay any of the Liabilities.
12. "PAGE" means Reuters Screen LIBOR01, formerly known as Page 3750 of the
Moneyline Telerate Service (together with any successor or substitute, the
"SERVICE") or any successor or substitute page of the Service providing
rate quotations comparable to those currently provided on such page of the
Service, as determined by the Bank from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in
the London interbank market.
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13. "PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, joint stock association, association, bank,
business trust, trust, unincorporated organization, any foreign
governmental authority, the United States of America, any state of the
United States and any political subdivision of any of the foregoing or any
other form of entity.
14. "PLEDGOR" means any Person providing Collateral.
15. "PRIME RATE" means the rate of interest per annum announced from time to
time by the Bank as its prime rate. The Prime Rate is a variable rate and
each change in the Prime Rate is effective from and including the date the
change is announced as being effective. THE PRIME RATE IS A REFERENCE RATE
AND MAY NOT BE THE BANK'S LOWEST RATE.
16. "PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, tangible or intangible.
17. "RATE MANAGEMENT TRANSACTION" means any transaction (including an
agreement with respect thereto) that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option, derivative
transaction or any other similar transaction (including any option with
respect to any of these transactions) or any combination thereof, whether
linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
18. "REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or
other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
19. "RESERVE REQUIREMENT" means the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D.
20. "RELATED DOCUMENTS" means this Note, all loan agreements, credit
agreements, reimbursement agreements, security agreements, mortgages,
deeds of trust, pledge agreements, assignments, guaranties, and any other
instrument or document executed in connection with this Note or in
connection with any of the Liabilities.
21. "SUBSIDIARY" means, as to any particular Person (the "parent"), a Person
the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of the date of
determination, as well as any other Person of which fifty percent (50%) or
more of the Equity Interests is at the time of determination directly or
indirectly owned, Controlled or held, by the parent or by a Person or
Persons Controlled by the parent, either alone or together with the
parent.
BANK'S RIGHT OF SETOFF. The Borrower grants to the Bank a security interest in
the Deposits, and the Bank is authorized to setoff and apply, all Deposits,
Securities and Other Property, and Bank Debt against any and all Liabilities.
This right of setoff may be exercised at any time and from time to time after
the occurrence of any default, without prior notice to or demand on the Borrower
and regardless of whether any Liabilities are contingent, unmatured or
unliquidated. In this paragraph: (a) the term "Deposits" means any and all
accounts and deposits of the Borrower (whether general, special, time, demand,
provisional or final) at any time held by the Bank (including all Deposits held
jointly with another, but excluding any IRA or Xxxxx Xxxxxxxx, or any trust
Deposits in which a security interest would be prohibited by law); (b) the term
"Securities and Other Property" means any and all securities and other personal
property of the Borrower in the custody, possession or control of the Bank,
JPMorgan Chase & Co. or their respective Subsidiaries and Affiliates (other than
Property held by the Bank in a fiduciary capacity); and (c) the term "Bank Debt"
means all indebtedness at any time owing by the Bank, to or for the credit or
account of the Borrower and any claim of the Borrower (whether individual, joint
and several (solidary) or otherwise) against the Bank now or hereafter existing.
REPRESENTATIONS BY BORROWER. The Borrower represents and warrants that each of
the following is and will remain true and correct until the later of maturity or
the date on which all Liabilities evidenced by this Note are paid in full: (a)
the execution and delivery of this Note and the performance of the obligations
it imposes do not violate any law, conflict with any agreement by which it is
bound, or require the consent or approval of any other Person; (b) this Note is
a valid and binding agreement of the Borrower, enforceable according to its
terms, except as may be limited by bankruptcy, insolvency or other laws
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affecting the enforcement of creditor's rights generally and by general
principles of equity; (c) all balance sheets, profit and loss statements, other
financial statements and applications for credit furnished to the Bank in
connection with the Liabilities are accurate and fairly reflect the financial
condition of the Persons to which they apply on their effective dates, including
contingent liabilities of every type, which financial condition has not
materially and adversely changed since those dates; and, if the Borrower is not
a natural Person: (i) it is duly organized, validly existing and in good
standing under the laws of the state where it is organized and in good standing
in each state where it is doing business; and (ii) the execution and delivery of
this Note and the performance of the obligations it imposes (A) are within its
powers and have been duly authorized by all necessary action of its governing
body, and (B) do not contravene the terms of its articles of incorporation or
organization, its by-laws, regulations or any partnership, operating or other
agreement governing its organization and affairs.
EVENTS OF DEFAULT/ACCELERATION. If any of the following events occurs, this Note
shall become due immediately, without notice, at the Bank's option:
1. Any Obligor fails to pay when due any of the Liabilities or any other debt
to any Person, or any amount payable with respect to any of the
Liabilities, or under this Note, any other Related Document, or any
agreement or instrument evidencing other debt to any Person.
2. Any Obligor or any Pledgor: (a) fails to observe or perform or otherwise
violates any other term, covenant, condition or agreement of any of the
Related Documents; (b) makes any materially incorrect or misleading
representation, warranty, or certificate to the Bank; (c) makes any
materially incorrect or misleading representation in any financial
statement or other information delivered to the Bank; or (d) defaults
under the terms of any agreement or instrument relating to any debt for
borrowed money (other than the debt evidenced by the Related Documents)
and the effect of such default will allow the creditor to declare the debt
due before its stated maturity.
3. In the event (a) there is a default under the terms of any Related
Document, (b) any Obligor terminates or revokes or purports to terminate
or revoke its guaranty or any Obligor's guaranty becomes unenforceable in
whole or in part, (c) any Obligor fails to perform promptly under its
guaranty, or (d) any Obligor fails to comply with, or perform under any
agreement, now or hereafter in effect, between the Obligor and the Bank,
or any Affiliate of the Bank or their respective successors and assigns.
4. There is any loss, theft, damage, or destruction of any Collateral not
covered by insurance.
5. Any event occurs that would permit the Pension Benefit Guaranty
Corporation to terminate any employee benefit plan of any Obligor or any
Subsidiary of any Obligor.
6. Any Obligor or any of its Subsidiaries or any Pledgor: (a) becomes
insolvent or unable to pay its debts as they become due; (b) makes an
assignment for the benefit of creditors; (c) consents to the appointment
of a custodian, receiver, or trustee for itself or for a substantial part
of its Property; (d) commences any proceeding under any bankruptcy,
reorganization, liquidation, insolvency or similar laws; (e) conceals or
removes any of its Property, with intent to hinder, delay or defraud any
of its creditors; (f) makes or permits a transfer of any of its Property,
which may be fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or (g) makes a transfer of any of its Property to or for the
benefit of a creditor at a time when other creditors similarly situated
have not been paid.
7. A custodian, receiver, or trustee is appointed for any Obligor or any of
its Subsidiaries or any Pledgor or for a substantial part of their
respective Property.
8. Any Obligor or any of its Subsidiaries, without the Bank's written
consent: (a) liquidates or is dissolved; (b) merges or consolidates with
any other Person; (c) leases, sells or otherwise conveys a material part
of its assets or business outside the ordinary course of its business; (d)
leases, purchases, or otherwise acquires a material part of the assets of
any other Person, except in the ordinary course of its business; or (e)
agrees to do any of the foregoing; provided, however, that any Subsidiary
of an Obligor may merge or consolidate with any other Subsidiary of that
Obligor, or with the Obligor, so long as the Obligor is the survivor.
9. Proceedings are commenced under any bankruptcy, reorganization,
liquidation, or similar laws against any Obligor or any of its
Subsidiaries or any Pledgor and remain undismissed for thirty (30) days
after commencement; or any Obligor or any of its Subsidiaries or any
Pledgor consents to the commencement of those proceedings.
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10. Any judgment is entered against any Obligor or any of its Subsidiaries, or
any attachment, seizure, sequestration, levy, or garnishment is issued
against any Property of any Obligor or any of its Subsidiaries or of any
Pledgor or any Collateral.
11. Any individual Obligor or Pledgor dies, or a guardian or conservator is
appointed for any individual Obligor or Pledgor or all or any portion of
their respective Property, or the Collateral.
12. Any material adverse change occurs in: (a) the reputation, Property,
financial condition, business, assets, affairs, prospects, liabilities, or
operations of any Obligor or any of its Subsidiaries; (b) any Obligor's or
Pledgor's ability to perform its obligations under the Related Documents;
or (c) the Collateral.
REMEDIES. If this Note is not paid at maturity, whether by acceleration or
otherwise, the Bank shall have all of the rights and remedies provided by any
law or agreement, in equity or otherwise. The Bank is authorized to cause all or
any part of the Collateral to be transferred to or registered in its name or in
the name of any other Person, with or without designating the capacity of that
nominee. Without limiting any other available remedy, the Borrower is liable for
any deficiency remaining after disposition of any Collateral. The Borrower is
liable to the Bank for all reasonable costs and expenses of every kind incurred
(or charged by internal allocation) in connection with the negotiation,
preparation, execution, filing, recording, modification, supplementing and
waiver of this Note or the other Related Documents and the making, servicing and
collection of this Note or the other Related Documents and any other amounts
owed under this Note or the other Related Documents, including without
limitation reasonable attorneys' fees and court costs. These costs and expenses
include without limitation any costs or expenses incurred by the Bank in any
bankruptcy, reorganization, insolvency or other similar proceeding.
WAIVERS. Each Obligor waives: (a) to the extent not prohibited by law, all
rights and benefits under any laws or statutes regarding sureties, as may be
amended; (b) any right to receive notice of the following matters before the
Bank enforces any of its rights: (i) the Bank's acceptance of this Note, (ii)
any credit that the Bank extends to the Borrower, (iii) the Borrower's default,
(iv) any demand, diligence, presentment, dishonor and protest, or (v) any action
that the Bank takes regarding the Borrower, anyone else, any Collateral, or any
of the Liabilities, that it might be entitled to by law, under any other
agreement, in equity or otherwise; (c) any right to require the Bank to proceed
against the Borrower, any other Obligor, or any Collateral, or pursue any remedy
in the Bank's power to pursue; (d) any defense based on any claim that any
endorser's or other Obligor's obligations exceed or are more burdensome than
those of the Borrower; (e) the benefit of any statute of limitations affecting
liability of any endorser or other Obligor or the enforcement hereof; (f) any
defense arising by reason of any disability or other defense of the Borrower or
by reason of the cessation from any cause whatsoever (other than payment in
full) of the obligation of the Borrower for the Liabilities; and (g) any defense
based on or arising out of any defense that the Borrower may have to the payment
or performance of the Liabilities or any portion thereof. Each Obligor consents
to any extension or postponement of time of its payment without limit as to the
number or period, to any substitution, exchange or release of all or any part of
the Collateral, to the addition of any other Person, and to the release or
discharge of, or suspension of any rights and remedies against, any Obligor. The
Bank may waive or delay enforcing any of its rights without losing them. Any
waiver affects only the specific terms and time period stated in the waiver. No
modification or waiver of any provision of this Note is effective unless it is
in writing and signed by the Person against whom it is being enforced.
COOPERATION. The Borrower agrees to fully cooperate with the Bank and not to
delay, impede or otherwise interfere with the efforts of the Bank to secure
payment from the Collateral including actions, proceedings, motions, orders,
agreements or other matters relating to relief from automatic stay, abandonment
of Property, use of cash Collateral and sale of the Collateral free and clear of
all Liens.
RIGHTS OF SUBROGATION. Each Obligor waives and agrees not to enforce any rights
of subrogation, contribution or indemnification that it may have against the
Borrower, any other Obligor, or the Collateral, until the Borrower and such
Obligor have fully performed all their obligations to the Bank, even if those
obligations are not covered by this Note.
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REINSTATEMENT. The Borrower agrees that to the extent any payment or transfer is
received by the Bank in connection with the Liabilities evidenced by this Note,
and all or any part of the payment or transfer is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be
transferred or repaid by the Bank or transferred or paid over to a trustee,
receiver or any other Person, whether under any bankruptcy act or otherwise (any
of those payments or transfers is hereinafter referred to as a "Preferential
Payment"), then this Note shall continue to be effective or shall be reinstated,
as the case may be, even if all those Liabilities have been paid in full and
whether or not the Bank is in possession of this Note, or whether the Note has
been marked paid, released or canceled, or returned to the Borrower and, to the
extent of the payment, repayment or other transfer by the Bank, the Liabilities
or part intended to be satisfied by the Preferential Payment shall be revived
and continued in full force and effect as if the Preferential Payment had not
been made.
GOVERNING LAW AND VENUE. This Note shall be governed by and construed in
accordance with the laws of the State of Louisiana (without giving effect to its
laws of conflicts). The Borrower agrees that any legal action or proceeding with
respect to any of its obligations under this Note may be brought by the Bank in
any state or federal court located in the State of Louisiana, as the Bank in its
sole discretion may elect. By the execution and delivery of this Note, the
Borrower submits to and accepts, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of those courts.
The Borrower waives any claim that the State of Louisiana is not a convenient
forum or the proper venue for any such suit, action or proceeding.
INABILITY TO DETERMINE INTEREST RATE. If the Bank determines on any day that
quotations of interest rates for the relevant deposits referred to in the
definition of Adjusted One Month LIBOR Rate are not being provided for purposes
of determining the interest rate on the Note on any day, then the principal
balance of this Note shall bear interest at the Prime Rate plus the Applicable
Margin until the Bank determines that quotations of interest rates for the
relevant deposits referred to in the definition of Adjusted One Month LIBOR Rate
are being provided.
MISCELLANEOUS. If more than one Borrower executes this Note: (i) each Borrower
is liable jointly and severally (solidarily) for the Liabilities evidenced by
this Note; (ii) the term "Borrower" means any one or more of them; and (iii) the
receipt of value by any one of them constitutes the receipt of value by the
others. This Note binds the Borrower and its successors, and benefits the Bank,
its successors and assigns. Any reference to the Bank includes any holder of
this Note. This Note is subject to that certain Credit Agreement by and between
the Borrower and the Bank, dated December 23, 2008, and all amendments,
restatements and replacements thereof (the "Credit Agreement") to which
reference is hereby made for a more complete statement of the terms and
conditions under which the loan evidenced hereby is made and is to be repaid.
The terms and provisions of the Credit Agreement are hereby incorporated and
made a part hereof by this reference thereto with the same force and effect as
if set forth at length herein. No reference to the Credit Agreement and no
provisions of this Note or the Credit Agreement shall alter or impair the
absolute and unconditional obligation of the Borrower to pay the principal and
interest on this Note as herein prescribed. Capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. Section headings are for convenience of reference only and do not
affect the interpretation of this Note. Any notices and demands under or related
to this Note shall be in writing and delivered to the intended party at its
address stated herein, and if to the Bank, at its main office if no other
address of the Bank is specified herein, by one of the following means: (a) by
hand; (b) by a nationally recognized overnight courier service; or (c) by
certified mail, postage prepaid, with return receipt requested. Notice shall be
deemed given: (a) upon receipt if delivered by hand; (b) on the Delivery Day
after the day of deposit with a nationally recognized courier service; or (c) on
the third Delivery Day after the notice is deposited in the mail. "Delivery Day"
means a day other than a Saturday, a Sunday, or any other day on which national
banking associations are authorized to be closed. Any party may change its
address for purposes of the receipt of notices and demands by giving notice of
such change in the manner provided in this provision. This Note and the other
Related Documents embody the entire agreement between the Borrower and the Bank
regarding the terms of the loan evidenced by this Note and supercede all oral
statements and prior writings relating to that loan. No delay on the part of the
Bank in the exercise of any right or remedy waives that right or remedy. No
single or partial exercise by the Bank of any right or remedy precludes any
other future exercise of it or the exercise of any other right or remedy. No
waiver or indulgence by the Bank of any default is effective unless it is in
writing and signed by the Bank, nor shall a waiver on one occasion bar or waive
that right on any future occasion. The rights of the Bank under this Note and
the other Related Documents are in addition to other rights (including without
limitation, other rights of setoff) the Bank may have contractually, by law, in
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equity or otherwise, all of which are cumulative and hereby retained by the
Bank. If any provision of this Note cannot be enforced, the remaining portions
of this Note shall continue in effect. The Borrower agrees that the Bank may
provide any information or knowledge the Bank may have about the Borrower or
about any matter relating to this Note or the Related Documents to JPMorgan
Chase & Co., or any of its Subsidiaries or Affiliates or their successors, or to
any one or more purchasers or potential purchasers of this Note or the Related
Documents. The Borrower agrees that the Bank may at any time sell, assign or
transfer one or more interests or participations in all or any part of its
rights and obligations in this Note to one or more purchasers whether or not
related to the Bank.
GOVERNMENT REGULATION. The Borrower shall not (a) be or become subject at any
time to any law, regulation, or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list) that
prohibits or limits the Bank from making any advance or extension of credit to
the Borrower or from otherwise conducting business with the Borrower, or (b)
fail to provide documentary and other evidence of the Borrower's identity as may
be requested by the Bank at any time to enable the Bank to verify the Borrower's
identity or to comply with any applicable law or regulation, including, without
limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
USA PATRIOT ACT NOTIFICATION. The following notification is provided to the
Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each Person that opens an account, including any
deposit account, treasury management account, loan, other extension of credit,
or other financial services product. What this means for the Borrower: When the
Borrower opens an account, if the Borrower is an individual, the Bank will ask
for the Borrower's name, taxpayer identification number, residential address,
date of birth, and other information that will allow the Bank to identify the
Borrower, and if the Borrower is not an individual, the Bank will ask for the
Borrower's name, taxpayer identification number, business address, and other
information that will allow the Bank to identify the Borrower. The Bank may also
ask, if the Borrower is an individual, to see the Borrower's driver's license or
other identifying documents, and if the Borrower is not an individual, to see
the Borrower's legal organizational documents or other identifying documents.
WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM
THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
JURY WAIVER. THE BORROWER AND THE BANK (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) BETWEEN THE BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY
RELATED TO THIS NOTE OR THE OTHER RELATED DOCUMENTS. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING EVIDENCED BY THIS NOTE.
BORROWER:
Address: 0000 Xxxxxxx 00 Xxxxxxxxxx Xxx Xxxxxxx, X.X.X.
Garyville, LA 70051
By: Blackwater Midstream Corp., Manager
By:
-------------------------------
-------------------------------
Printed Name Title
Date Signed:
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7
