EXHIBIT 10.8
FIFTH AMENDED AND RESTATED PROMISSORY NOTE
$9,500,000.00 March 31, 2005
ON DEMAND, SUPERIOR WELL SERVICES, LTD., a Pennsylvania limited
partnership ("Borrower"), having an office at 0000 Xxxxx 000, Xxxxx. 000,
Xxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to the order of CITIZENS BANK OF
PENNSYLVANIA, a Pennsylvania state chartered bank (the "Bank"), at 000 Xxxxxxx
Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other office as the Bank may
designate in writing to the Borrower from time to time (the "Bank's Office"),
the principal sum of NINE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($9,500,000.00) or such lesser aggregate sum as has been advanced hereunder as
reflected in the books and records of the Bank (each such advance being a "Line
of Credit Advance"), and to pay interest thereon, all as hereinafter provided.
Within the foregoing limits, and subject to the terms and conditions of this
Note, the Borrower may borrow, repay and reborrow sums under this Note. The
Borrower acknowledges that the outstanding principal balance of this Note and
all interest and other charges accrued hereon are payable ON DEMAND
notwithstanding anything to the contrary contained herein or any other document
executed in connection herewith. The enumeration of specific Events of Default,
conditions or covenants relating to this Note shall not be construed to qualify,
define or otherwise limit in any way the Bank's right, power or ability, at any
time, to make demand for the immediate payment of the outstanding principal
balance of, and all interest and other charges accrued on, this Note. The
Borrower acknowledges and agrees that demand may be made at any time by the Bank
for payment of this Note whether or not an Event of Default has occurred
hereunder.
This Note is issued as one of the "Notes" referred to in that certain
Loan Agreement between the Borrower and the Bank dated as of August 22, 1997, as
supplemented by that certain Supplement to Loan Agreement dated August 22, 1997
comprised of two pages (as supplemented and amended from time to time, the "Loan
Agreement"). This Note is secured by and entitled to the benefits of, inter
alia, that certain Security Agreement of even date herewith between the Borrower
and the Bank.
This Note is an amendment, restatement, and replacement for, AND NOT A
NOVATION OR SATISFACTION OF, that certain Fourth Amended and Restated Promissory
Note dated October 27, 2003 in the principal amount of Seven Million Five
Hundred Thousand Dollars ($7,500,000.00) (the "Prior Note"). The indebtedness
evidenced by the Prior Note shall, from and after the date of this Note, be
evidenced by this Note without discharging or releasing any collateral
previously securing payment in full of the Prior Note.
1. Capitalized terms. (a) In addition to other words and terms defined
elsewhere in this Note, when used in this Note, the following capitalized words
and terms shall have the following meanings:
"Applicable Margin" means (i) 1.0% per annum for each LIBOR Rate
Tranche, (ii) 1.0% per annum for each LIBOR Advantage Tranche, and (iii) 0.0%
per annum for each Prime Rate Tranche.
"Borrowing Date" means a Business Day on which the Borrower requests a
Line of Credit Advance be made by the Bank.
"Business Day" means:
(i) any day other than a Saturday, Sunday or other
day on which commercial lenders in Pittsburgh, Pennsylvania are
authorized or required by law to close;
(ii) when such term is used to describe a day on
which a borrowing, payment, prepaying, or repaying is to be made in
respect of any LIBOR Rate Tranche, any day which is: (A) neither a
Saturday or Sunday nor a legal holiday on which commercial banks are
authorized or required to be closed in New York City; and (B) a London
Banking Day; and
(iii) when such term is used to describe a day on
which an interest rate determination is to be made in respect of any
LIBOR Rate Tranche, any day which is a London Banking Day.
"Chief Executive Office" means the place from which the main part of
the business operations of the Borrower is managed.
"Hedging Contracts" means, interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, or any other agreements or
arrangements entered into between the Borrower and the Bank and any Affiliate of
the Bank and designed to protect the Borrower against fluctuations in interest
rates or currency exchange rates.
"Insolvency Proceeding" means, with respect to the Borrower (i) any
case, action or proceeding with respect to such party before any court or other
governmental authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up, charter revocation or
forfeiture, arrangement, adjustment, composition, or relief of debtors, or (ii)
any general assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each instance,
undertaken under Federal, state or foreign law, including the Bankruptcy Code,
11 U.S.C. 101, et seq., as amended from time to time.
"Interest Payment Date" means (i) relative to any LIBOR Rate Tranche,
having an Interest Period of three months or less, the last Business Day of such
Interest Period, and as to any LIBOR Rate Tranche having an Interest Period
longer than three months, each Business Day which is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period, (ii) relative to any Prime Rate Tranche, the last
Business Day of each calendar month and each date such Prime Rate Tranche is
converted into a LIBOR Rate Tranche, and (iii) relative to any LIBOR Advantage
Tranche, initially October 31, 2003, and thereafter the numerically corresponds
date of each month, provided, if a month does not contain a day that numerically
corresponds to the date of the Interest Payment Date, the Interest Payment Date
will be the last day of such month.
"Interest Period" means:
(i) RELATIVE TO ANY LIBOR RATE TRANCHES:
(A) initially, the period beginning on (and
including) the date on which such LIBOR Rate Loan is made or
continued as, or converted into, a LIBOR Rate Loan pursuant to
Section 2.04 of the Agreement and ending on (but excluding)
the day which numerically corresponds to such date one, three
or six months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day
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of such month), in each case as the Borrower may select in its
notice pursuant to Section 2.04 of the Agreement; and
(B) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable
to such LIBOR Rate Loan and ending one, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Bank not less than two (2) Business Days prior to the
last day of the then current Interest Period with respect
thereto;
provided, however, that:
(1) the Borrower shall not be permitted to
select Interest Periods to be in effect at any one time which
have expiration dates occurring on more than three (3)
different dates;
(2) Interest Periods commencing on the same
date for LIBOR Rate Tranches comprising part of the same
advance under this Agreement shall be of the same duration;
(3) Interest Periods for LIBOR Rate Tranches
in connection with which Borrower has or may incur Hedging
Obligations with the Bank shall be of the same duration as the
relevant periods set under the applicable Hedging Contracts;
(4) if such Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period
shall end on the next following Business Day unless such day
falls in the next calendar month, in which case such Interest
Period shall end on the first preceding Business Day; and
(5) no Interest Period may end later than
the termination of this Agreement; and
(II) RELATIVE TO ANY LIBOR ADVANTAGE LOAN:
each one month period ending on the 31st day of such month,
provided, if an Interest Period for a LIBOR Advantage Loan is
to end in a month for which there is no 31st day, the Interest
Period will end on the last day of such month.
"Interest Rate Option" means individually the Libor Option, the LIBOR
Advantage Option or the Prime Rate Option, and "Interest Rate Options" means
collectively the Libor Option, the LIBOR Advantage Option and the Prime Rate
Option.
"LIBOR Advantage Option" shall have the meaning set forth in Paragraph
2(a).
"LIBOR Advantage Rate" means relative to any Interest Period, the
offered rate for delivery in two London Banking Days of deposits of U.S. Dollars
which the British Bankers' Association fixes as its LIBOR rate and which appears
on the Telerate Page 3750 as of 11:00 a.m. London time on the day on which the
Interest Period commences, and for a period approximately equal to such Interest
Period. If the first day of any Interest Period is not a day which is both a (i)
Business Day, and (ii) a London Banking
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Day, the LIBOR Advantage Rate shall be determined in reference to the next
preceding day which is both a Business Day and a London Banking Day. If for any
reason the LIBOR Advantage Rate is unavailable and/or the Bank is unable to
determine the LIBOR Advantage Rate for any Interest Period, the LIBOR Advantage
Rate shall be deemed to be equal to the Prime Rate.
"LIBOR Advantage Tranche" means any portion of the Line of Credit
Advances the rate of interest applicable to which is based upon the LIBOR
Advantage Rate.
"LIBOR Lending Rate" means, relative to any LIBOR Rate Tranche to be
made, continued or maintained as, or converted into, a LIBOR Rate Tranche for
any Interest Period, a rate per annum equal to the quotient of (i) the LIBOR
Rate DIVIDED BY (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage
for such Interest Period.
"LIBOR Rate" means relative to any Interest Period for LIBOR Rate
Tranches, the offered rate for deposits of U.S. Dollars in an amount
approximately equal to the amount of the requested LIBOR Rate Tranche for a term
coextensive with the designated Interest Period which the British Bankers'
Association fixes as its LIBOR rate and which appears on the Telerate Page 3750
as of 11:00 a.m. London time on the day which is two (2) London Banking Days
prior to the beginning of such Interest Period.
"LIBOR Rate Option" shall have the meaning set forth in Paragraph 2(a).
"LIBOR Rate Tranche" means any portion of the Line of Credit Advances
the rate of interest applicable to which is based upon the LIBOR Rate.
"LIBOR Rate Tranche Prepayment Fee" has the meaning set forth in
Paragraph 3(b).
"LIBOR Reserve Percentage" means, relative to any day of any Interest
Period for LIBOR Rate Tranches, the maximum aggregate (without duplication) of
the rates (expressed as a decimal fraction) of reserve requirements (including
all basic, emergency, supplemental, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements) under any regulations of the Board of Governors of the Federal
Reserve System (the "Board") or other governmental authority having jurisdiction
with respect thereto as issued from time to time and then applicable to assets
or liabilities consisting of "Eurocurrency Liabilities", as currently defined in
Regulation D of the Board, having a term approximately equal or comparable to
such Interest Period.
"London Banking Day" means a day on which dealings in US dollar
deposits are transacted in the London interbank market.
"Obligor" means the Borrower and each surety or guarantor of any of the
Borrower's liabilities to the Bank as well as any person or entity granting the
Bank a security interest in property to secure indebtedness evidenced hereby).
"Prime Rate" means the rate of interest per annum announced by the Bank
from time to time at the Bank's Office as being its prime rate of interest,
whether or not such announced rate of interest is the best rate available from
the Bank to borrowers at any time or from time to time. The Prime Rate shall be
determined by the Bank each day based upon the Prime Rate as in effect each day.
"Prime Rate Option" shall have the meaning set forth in Paragraph 2(a).
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"Prime Rate Tranche" means any portion of the Line of Credit Advances
the rate of interest applicable to which is based upon the Prime Rate.
"Tranche" means each portion of the outstanding principal balance of
this Note bearing interest at a different Interest Rate Option.
2. Interest. (a) The principal amount of this Note outstanding from
time to time shall bear interest for each day until paid at one or more of the
following Interest Rate Options as selected by the Borrower pursuant to the
further provisions of this Paragraph 2:
(i) Interest on the outstanding principal amount of
each Prime Rate Tranche shall accrue at a rate per annum equal to the
Prime Rate PLUS the Applicable Margin (the "Prime Rate Option");
(ii) Interest on the outstanding principal amount of
each LIBOR Advantage Tranche shall accrue during the Interest Period
applicable thereto at a rate per annum equal to the sum of the LIBOR
Advantage Rate for such Interest Period PLUS the Applicable Margin (the
"Libor Advantage Option"); and
(iii) Interest on the outstanding principal amount of
each LIBOR Tranche shall accrue during the Interest Period applicable
thereto at a rate per annum equal to the sum of the LIBOR Rate for such
Interest Period PLUS the Applicable Margin (the "Libor Option").
The Borrower shall be permitted, subject to the terms hereof, to select that all
or portions of the principal balance of this Note bear interest at one or more
of the Interest Rate Options. If the Borrower fails or declines to select an
Interest Rate Option at any time with respect to any Tranche, interest on such
Tranche shall accrue at the Prime Rate Option.
(b) Each request for a Line of Credit Advance shall be made by
the Borrower delivering to the Bank an irrevocable written notice in a form
acceptable to the Bank (a "Notice of Borrowing") at the following times based
upon the applicable Interest Rate Option selected:
(i) By delivering a Notice of Borrowing (or
telephonic notice confirmed on the same day in a Notice of Borrowing)
to the Bank on or before 10:00 a.m. (prevailing time in Pittsburgh,
Pennsylvania) on the requested Borrowing Date (which must be a Business
Day), the Borrower may from time to time irrevocably request that a
Line of Credit Advance be made on the requested Borrowing Date as a
Prime Rate Tranche or a Libor Advantage Tranche. On the terms and
subject to the conditions of this Note, each Prime Rate Tranche or
Libor Advantage Tranche shall be made available to the Borrower no
later than 11:00 a.m. (prevailing time in Pittsburgh, Pennsylvania) on
the requested Borrowing Date by deposit to the account of the Borrower
with the Bank or by wire transfer in accordance with written
instructions as shall have been delivered to the Bank by the Borrower
prior to the making of the requested Prime Rate Tranche or Libor
Advantage Tranche; and
(ii) By delivering a Notice of Borrowing to the Bank
(or telephonic notice confirmed on the same day in a Notice of
Borrowing) on or before 10:00 a.m. (prevailing time in Pittsburgh,
Pennsylvania) on a Business Day, the Borrower may from time to time
irrevocably request, on not less than two (2) nor more than five (5)
Business Days' notice, that a Line of Credit Advance be made on the
requested Borrowing Date as
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a Libor Rate Tranche in a minimum amount of $500,000 and integral
multiples of $100,000 in excess of such amount, and specifying the
applicable Interest Period which shall be six months if the Borrower
fails to specify the applicable Interest Period. On the terms and
subject to the conditions of this Note, each LIBOR Rate Tranche shall
be made available to the Borrower no later than 11:00 a.m. (prevailing
time in Pittsburgh, Pennsylvania) on the first day of the applicable
Interest Period by deposit to the account of the Borrower with the Bank
or by wire transfer in accordance with written instructions as shall
have been delivered to the Bank by the Borrower prior to the making of
the requested LIBOR Rate Tranche. After giving effect to any borrowing,
there shall not be more than three (3) LIBOR Rate Tranches outstanding
at any time.
(c) By delivering an irrevocable written notice of
continuation/conversion to the Bank in a form acceptable to the Bank (a "Notice
of Continuation/Conversion")(or telephonic notice confirmed on the same day in a
Notice of Continuation/Conversion), the Borrower may from time to time
irrevocably elect to convert on the last day of an Interest Period any
outstanding Tranche to a Tranche bearing interest at a different Interest Rate
Option or having a different Interest Period, or continue on the last day of an
Interest Period a Tranche as a Tranche bearing interest at the same Interest
Rate Option with a similar Interest Period, subject to the following conditions:
(i) any Tranche to be continued as, or converted
into, a LIBOR Rate Tranche must be in a minimum amount of $500,000 and
integral multiples of $100,000 in excess of such amount;
(ii) no portion of a LIBOR Rate Tranche may be
converted to, or continued as, a LIBOR Rate Tranche when an Event of
Default has occurred and is continuing,
(iii) no portion of a LIBOR Rate Tranche may be
converted to a LIBOR Rate Tranche of a different duration if such LIBOR
Rate Tranche relates to any Hedging Contract, and
(iv) there shall be no more than three (3) LIBOR Rate
Tranches outstanding at any time.
(v) each Notice of Conversion/Continuation must be
received by the Bank (A) not later than 11:00 a.m. (prevailing time in
Pittsburgh, Pennsylvania) at least two (2) Business Days in advance of
the date of the requested date of continuation/conversion (the
"Continuation/Conversion Date") if the Tranche is to be converted into
or continued as a LIBOR Rate Tranche, or (B) not later than 11:00 a.m.
(prevailing time in Pittsburgh, Pennsylvania) on the
Continuation/Conversion Date, if the Tranche is to be converted into a
Prime Rate Tranche or a LIBOR Advantage Tranche.
If no Interest Rate Option is timely selected at the end of any Interest Period
for a LIBOR Rate Tranche, the Borrower shall be deemed to have selected the
LIBOR Advantage Option for such Tranche. In the absence of a timely delivery of
a Notice of Continuation/Conversion with respect to any LIBOR Rate Tranche, such
Tranche shall, on the last day of the Interest Period relating to such Tranche
automatically convert to a LIBOR Advantage Tranche. If no Interest Rate Option
is timely selected at the end of any Interest Period for a LIBOR Advantage
Tranche, such Tranche shall automatically continue on the last day of the
Interest Period as a LIBOR Advantage Tranche with a similar Interest Period.
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(d) Upon the occurrence and during the continuance of an Event
of Default, any outstanding LIBOR Rate Tranche or LIBOR Advantage Tranche may,
at the Bank's sole option, be converted to a Prime Rate Tranche on the last day
of the Interest Period relating thereto ending during the continuance of such
Event of Default.
(e) Each determination of an interest rate by the Bank shall
be conclusive and binding on the Borrower in the absence of manifest error. At
the request of the Borrower, the Bank will deliver to the Borrower a statement
showing the quotations used by the Bank in determining any interest rate and the
resulting interest rate. The Borrower may enter into Hedging Contracts covering
up to $300,000 of the outstanding principal amount of this Note or such greater
amount as may be approved in writing by the Bank in its sole discretion from
time to time. Any Hedging Contract will be cross-collateralized (to the extent
applicable), cross-defaulted, and cross-guaranteed (to the extent applicable)
with this Note. The fixed rate will be established the day that the Borrower
enters into a swap transaction with the Bank or its Affiliates.
(f) Interest shall be calculated on the basis of a 360-day
year, counting the actual number of days elapsed in the period during which it
accrues. The Borrower shall pay interest in arrears on each Interest Payment
Date and on the date the Bank makes demand for the payment in full of the
outstanding principal balance of this Note. In computing interest on any Line of
Credit Advance, the Borrowing Date or the first day of an Interest Period
applicable to such Line of Credit Advance shall be included, and the date of
payment of such Line of Credit Advance or the expiration date of an Interest
Period applicable to such Line of Credit Advance shall be excluded, provided,
that if a Line of Credit Advance is repaid on the same day on which it is made,
one day's interest shall be paid on that Line of Credit Advance.
(g) After the occurrence of an Event of Default (as
hereinafter defined), whether or not the Bank has made demand for payment,
interest shall accrue on the unpaid principal balance of this Note, before and
after judgment, at a rate per annum for each day equal to the Prime Rate plus
two percent (2.0%), and such interest shall be due and payable on demand.
(h) If, at any time, the rate of interest payable hereunder
shall be deemed by a competent court of law, governmental agency or tribunal to
exceed the maximum rate of interest permitted by applicable law, then for such
time as such rate would be deemed excessive, its application shall be suspended
and there shall be charged in lieu thereof the maximum rate of interest
permitted under such law. If any payment of interest or in the nature of
interest would cause the foregoing interest rate limitation to be exceeded, then
such excess payment shall be credited as a payment of principal, unless the
Borrower notify the Bank to return the excess payment to the Borrower.
(i) If the Bank shall reasonably determine (which
determination shall, upon notice thereof to the Borrower be conclusive and
binding on the Borrower) that the introduction of or any change in or in the
interpretation of any law, rule, regulation or guideline (whether or not having
the force of law) makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for the Bank to make, continue or
maintain any LIBOR Rate Tranche as, or to convert any loan into, a LIBOR Rate
Tranche of a certain duration, the obligations of the Bank to make, continue,
maintain or convert into any such LIBOR Rate Tranches shall, upon such
determination, forthwith be suspended until the Bank shall notify the Borrower
that the circumstances causing such suspension no longer exist, and all LIBOR
Rate Tranches of such type shall automatically convert into LIBOR Advantage
Tranches at the end of the then current Interest Periods with respect thereto or
sooner, if required by such law or assertion.
(j) If the Bank determines that it is unlawful to maintain any
LIBOR Rate Tranche, the Borrower shall, upon its receipt of notice of such fact
and demand from the Bank, prepay in full such
7
LIBOR Rate Tranches then outstanding, together with interest accrued thereon and
the LIBOR Rate Prepayment Fee, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such LIBOR Rate Tranches
to such day, or immediately, if the Bank may not lawfully continue to maintain
such LIBOR Rate Tranche. If the Borrower is required to so prepay any LIBOR Rate
Tranche, then concurrently with such prepayment, the Borrower shall borrow a
Prime Rate Tranche from the Bank in the amount of such prepayment.
(k) If the Bank shall have determined that (i) US dollar
deposits in the relevant amount and for the relevant Interest Period are not
available to the Bank in the London interbank market, (ii) by reason of
circumstances affecting the Bank in the London interbank, adequate means do not
exist for ascertaining the LIBOR Rate applicable hereunder to LIBOR Rate
Tranches of any duration, or (iii) the LIBOR Rate no longer adequately reflects
the Bank's cost of funding loans, then, upon notice from the Bank to the
Borrower, the obligations of the Bank to make or continue any Tranches as, or to
convert any Tranches into, LIBOR Rate Tranches of such duration shall forthwith
be suspended until the Bank shall notify the Borrower that the circumstances
causing such suspension no longer exist.
(l) If the obligation of the Bank to make or maintain LIBOR
Rate Tranches has been so terminated or suspended, the Borrower may elect, by
giving notice to the Bank that all Tranches which would otherwise be made by the
Bank as LIBOR Rate Tranches shall instead be made as LIBOR Advantage Tranches;
until such notice is delivered, if at all, all Tranches shall be LIBOR Advantage
Tranches.
(m) In addition to the LIBOR Rate Prepayment Fee, the Borrower
agrees to reimburse the Bank (without duplication) for any increase in the cost
to the Bank, or reduction in the amount of any sum receivable by the Bank, in
respect, or as a result of:
(i) any conversion or repayment or prepayment of the
principal amount of any LIBOR Rate Tranches on a date other than the
scheduled last day of the Interest Period applicable thereto;
(ii) any Tranches not being made as LIBOR Rate
Tranches in accordance with the borrowing request thereof;
(iii) any LIBOR Rate Tranche not being continued as,
or converted into, a LIBOR Rate Tranche in accordance with the Notice
of Continuation/Conversion thereof, or
(iv) any costs associated with marking to market any
Hedging Obligations that (in the reasonable determination of the Bank)
are required to be terminated as a result of any conversion, repayment
or prepayment of the principal amount of any LIBOR Rate Tranche on a
date other than the scheduled last day of the Interest Period
applicable thereto;
The Bank shall promptly notify the Borrower in writing of the occurrence of any
such event, such notice to state, in reasonable detail, the reasons therefor and
the additional amount required fully to compensate the Bank for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
to the Bank within five days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. The Borrower understands, agrees and acknowledges the following: (i)
the Bank does not have any obligation to purchase, sell and/or match funds in
connection with the use of LIBOR Rate as a basis for calculating the rate of
interest on a LIBOR Rate Tranche, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and
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(iii) the Borrower has accepted the LIBOR Rate as a reasonable and fair basis
for calculating such rate, the LIBOR Rate Prepayment Fee, and other funding
losses incurred by the Bank. Borrower further agrees to pay the LIBOR Rate
Prepayment Fee and other funding losses, if any, whether or not the Bank elects
to purchase, sell and/or match funds.
(n) If on or after the date hereof the adoption of any
applicable law, rule or regulation or guideline (whether or not having the force
of law), or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) shall subject the Bank to any tax, duty or other
charge with respect to its LIBOR Rate Tranches or its obligation to
make LIBOR Rate Tranches, or shall change the basis of taxation of
payments to the Bank of the principal of or interest on its LIBOR Rate
Tranches or any other amounts due under this agreement in respect of
its LIBOR Rate Tranches or its obligation to make LIBOR Rate Tranches
(except for the introduction of, or change in the rate of, tax on the
overall net income of the Bank or franchise taxes, imposed by the
jurisdiction (or any political subdivision or taxing authority thereof)
under the laws of which the Bank is organized or in which the Bank's
principal executive office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System of the United States) against assets of,
deposits with or for the account of, or credit extended by, the Bank or
shall impose on the Bank or on the London interbank market any other
condition affecting its LIBOR Rate Tranches or its obligation to make
LIBOR Rate Tranches;
and the result of any of the foregoing is to increase the cost to the
Bank of making or maintaining any LIBOR Rate Tranche, or to reduce the
amount of any sum received or receivable by the Bank under this
Agreement with respect thereto, by an amount deemed by the Bank to be
material, then, within 15 days after demand by the Bank, the Borrower
shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such increased cost or reduction.
(o) If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by the Bank, or person controlling the Bank, and the Bank
determines (in its sole and absolute discretion) that the rate of return on its
or such controlling person's capital as a consequence of its commitments or the
loans made by the Bank is reduced to a level below that which the Bank or such
controlling person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by the Bank
to the Borrower, the Borrower shall immediately pay directly to the Bank
additional amounts sufficient to compensate the Bank or such controlling person
for such reduction in rate of return. A statement of the Bank as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, the Bank may use any reasonable method
of averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
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(p) All payments by the Borrower of principal of, and interest
on, the LIBOR Rate Tranches and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all liabilities with
respect thereto of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by the Bank's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Bank an official receipt
or other documentation satisfactory to the Bank evidencing such payment
to such authority; and
(iii) pay to the Bank such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Bank will equal the full amount the Bank would have received had
no such withholding or deduction been required.
(q) If any Taxes are directly asserted against the Bank with
respect to any payment received by the Bank hereunder, the Bank may pay such
Taxes and the Borrower will promptly pay such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by the Bank after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount the Bank would have received had
not such Taxes been asserted.
(r) If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Bank the required receipts
or other required documentary evidence, the Borrower shall indemnify the Bank
for any incremental Taxes, interest or penalties that may become payable by the
Bank as a result of any such failure.
(s) The agreements and obligations of the Borrower in
Paragraph 2(i) through (r) shall survive the payment in full of the outstanding
principal balance of this Note.
3. Payments; LIBOR Rate Prepayment Fee. (a) The outstanding principal
balance of this Note is due and payable ON DEMAND. Interest accrued on this Note
shall be due and payable in accordance with the provisions of Paragraph 2(f).
(b) Unless demand has been made prior thereto, each LIBOR Rate
Tranche shall mature and become payable in full on the last day of the Interest
Period relating to such LIBOR Rate Tranche. Upon maturity, a LIBOR Rate Tranche
may be continued for an additional Interest Period or may be converted as
permitted under Paragraph 2. LIBOR Rate Tranches may be prepaid upon the terms
and conditions set forth herein. For LIBOR Rate Tranches in connection with
which the Borrower has entered into Hedging Contracts, additional obligations
may be associated with prepayment, in accordance with the terms and conditions
of the applicable Hedging Contracts. The Borrower shall give the Bank, no later
than 10:00 a.m. (prevailing time in Pittsburgh, Pennsylvania) at least four (4)
Business Days prior notice of any proposed prepayment of any LIBOR Rate
Tranches, specifying the proposed date of payment of such LIBOR Rate Tranches,
and the principal amount to be paid. Each partial prepayment of the principal
amount of LIBOR Rate Tranches shall be in an integral multiple of $500,000 and
accompanied by the payment of all charges outstanding on such LIBOR Rate
Tranches and of all accrued interest on the principal repaid to the date of
payment. The Borrower acknowledges that prepayment or
10
acceleration of a LIBOR Rate Tranche during an Interest Period shall result in
the Bank incurring additional costs, expenses and/or liabilities and that it is
extremely difficult and impractical to ascertain the extent of such costs,
expenses and/or liabilities. Therefore, all full or partial prepayments of LIBOR
Rate Tranches shall be accompanied by, and the Borrower hereby promises to pay,
on each date a LIBOR Rate Tranche is prepaid or the date all sums payable
hereunder become due and payable, by acceleration or otherwise, in addition to
all other sums then owing, an amount (the "LIBOR Rate Prepayment Fee")
determined by the Bank pursuant to the following formula:
(i) the then current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond
equivalent) with a maturity date closest to the end of the Interest
Period as to which prepayment is made, subtracted from
(ii) the LIBOR Lending Rate plus the Applicable
Margin applicable to the LIBOR Rate Tranche being prepaid.
If the result of this calculation is zero or a negative number, then there shall
be no LIBOR Rate Prepayment Fee. If the result of this calculation is a positive
number, then the resulting percentage shall be multiplied by the amount of the
LIBOR Rate Tranche being prepaid, and the resulting amount shall be divided by
360, and multiplied by the number of days remaining in the Interest Period as to
which the prepayment is being made. Said amount shall be reduced to present
value calculated by using the referenced United States Treasury securities rate
and the number of days remaining on the Interest Period for the LIBOR Rate
Tranche being prepaid. The resulting amount of these calculations shall be the
LIBOR Rate Prepayment Fee.
(c) All sums to be paid to the Bank under this Note shall be
paid directly to the Bank's Office on or before 2:00 p.m. prevailing time in
Pittsburgh, Pennsylvania, on the day when due, in lawful money of the United
States of America and in immediately available funds (subject to clearance),
without set-off, counterclaim or other deduction of any nature and without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and any action therefor shall immediately
accrue. Payments received after such time shall be deemed received by the Bank
on the next succeeding Business Day at such place of payment. All payments shall
be made free and clear of, and without deduction for, any present or future
taxes, levies, withholding, offsets, counterclaims or deductions of any nature
whatsoever ("Deductions"). In the event that the Borrower is compelled for any
reason to make any Deductions, the Borrower shall pay to the Bank such amounts
(after giving effect to all Deductions on all additional payments to be made
hereunder) as will result in the receipt by the Bank of the amount the Bank
would have received had no such Deductions been required to be made. Payments
shall be credited first to charges, fees and expenses accrued on this Note,
second to interest accrued on this Note and the remainder to reduction of the
outstanding principal balance hereof. Any payment otherwise due on a day which
is not a Business Day shall not be due until the next succeeding Business Day.
(d) In the event the Borrower fails to make any payment under
this Note within fifteen (15) days of when due (whether at maturity, upon the
occurrence of an Event of Demand, by acceleration or otherwise), in addition to
making payment of the amount then due, the Borrower shall, at the option of the
Bank, pay to the Bank a late charge in an amount equal to five percent (5.0%) of
such overdue amount. The foregoing late payment fees shall be immediately due
and payable without presentment, demand or notice by Bank
4. Bank's Records. The Bank is hereby authorized to record in its books
and records the amount of all Line of Credit Advances, principal payments,
interest due, interest paid, and all other charges, fees and expenses paid or
due, and the like, under or in connection with this Note, and except in
11
the case of manifest error, such books and records shall be conclusive and
binding as to the amounts at any time due to the Bank from the Borrower under
this Note.
5. Events of Default. The occurrence or existence of any one or more of
the following events or conditions (whatever the reason for such occurrence or
existence and whether voluntary, involuntary or effected by operation of Law)
shall constitute an "Event of Default" under this Note, however, THE BORROWER
ACKNOWLEDGES THAT THE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE IS PAYABLE ON
DEMAND AND THE ENUMERATION OF EVENTS OF DEMAND, CONDITIONS OR COVENANTS IN ANY
OF THE LOAN DOCUMENTS SHALL NOT BE CONSTRUED TO QUALIFY, DEFINE OR OTHERWISE
LIMIT IN ANY WAY THE BANK'S RIGHT, POWER OR ABILITY, AT ANY TIME, TO MAKE DEMAND
FOR THE PAYMENT OF THE OUTSTANDING PRINCIPAL BALANCE OF, AND ALL INTEREST
ACCRUED ON, THIS NOTE, AND THE BORROWER AGREES THAT THE OCCURRENCE OF AN EVENT
OF DEMAND IS NOT A CONDITION FOR DEMAND TO BE MADE BY THE BANK FOR PAYMENT OF
THE OUTSTANDING PRINCIPAL BALANCE OF THIS NOTE:
(i) The failure of the Borrower to pay any principal,
interest, fee, indemnity, expense or other amount when due under this
Note.
(ii) The breach by any Obligor of any covenant
contained in the Loan Agreement, this Note, or in any separate
security, guarantee or suretyship agreement, between the Bank and any
Obligor, or the occurrence of any default hereunder or under the terms
of any such agreement.
(iii) Any representation or warranty made by or on
behalf of the Borrower in any certificate, financial statement or other
document furnished to the Bank in connection with this Note or the Loan
Agreement shall prove to have been false or misleading.
(iv) An Insolvency Proceeding shall be instituted by
the Borrower or any other Obligor with respect to itself and its
properties, or a Borrower or any other Obligor shall take any action in
furtherance of any such Insolvency Proceeding.
(v) An Obligor (A) has an involuntary Insolvency
Proceeding commenced or filed against it and any such proceeding or
petition shall not be dismissed within sixty (60) days after
commencement; (B) admits the material allegations of a petition in any
Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii)
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar person for itself or a substantial portion of its
property or business.
(vi) An Obligor shall (A) become insolvent, or
generally fail to pay, become unable to pay, or state that it is or
will be unable to pay, its debts as they become due, or (B) make a
general assignment for the benefit of creditors.
(vii) This Note, the Loan Agreement or any separate
security, guarantee or suretyship agreement between the Bank and any
Obligor, or any material term or provision thereof, shall cease to be
in full force and effect (except in accordance with the express terms
thereof), or an Obligor shall, or shall purport to, terminate (except
in accordance with the terms hereof), repudiate, declare voidable or
void or otherwise
12
contest, this Note, the Loan Agreement or any separate security,
guarantee or suretyship agreement between the Bank and any Obligor or
any material term or provision hereof or thereof or any obligation or
liability of an Obligor hereunder or thereunder.
(viii) The garnishment, attachment or taking by
governmental authority of any property of the Borrower which is in the
Bank's possession or which constitutes security for any indebtedness
evidenced hereby.
(ix) A notice of lien or assessment in excess of
$20,000 is filed of record with respect to all or any portion of the
Borrower's assets by the United States of America, or any department,
agency, or instrumentality thereof, or by any state, county, municipal,
or other governmental agency.
6. Consequences of an Event of Default; Remedies. (a) If an Event of
Default other than those specified in Paragraph 5(iv) or (v) hereof shall occur,
then, at the Bank's option, the unpaid principal balance of this Note and all
interest, fees, expenses and other charges accrued hereon may become immediately
due and payable without demand, presentment or notice of any kind (all of which
the Borrower hereby waives). THE FOREGOING SHALL NOT BE CONSTRUED TO LIMIT THE
BANK'S RIGHT TO DEMAND PAYMENT AT ANYTIME OF THE INDEBTEDNESS NOW OR HEREAFTER
EVIDENCED BY THIS NOTE WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED.
(b) If an Event of Default specified in Paragraph 5(iv) or (v)
hereof occurs, then the unpaid principal balance of this Note and all interest,
fees, expenses and other charges accrued hereon shall be immediately due and
payable without demand, presentment or notice of any kind (all of which the
Borrower hereby waives). THE FOREGOING SHALL NOT BE CONSTRUED TO LIMIT THE
BANK'S RIGHT TO DEMAND PAYMENT AT ANYTIME OF THE INDEBTEDNESS NOW OR HEREAFTER
EVIDENCED BY THIS NOTE WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED.
(c) After the occurrence of an Event of Default, the Bank may
set-off and apply against the unpaid principal balance of this Note and all
interest, fees, expenses and other charges accrued hereon, any and all debts
owing to, and any other funds held in any manner for the account of, the
Borrower by the Bank, including, without limitation, all deposit accounts
(general or special, time or demand, provisional or final) at any time
maintained by the Borrower with the Bank and any other indebtedness at any time
owing by the Bank to or for the account of the Borrower, irrespective of whether
or not the Bank shall have made any demand under this Note. In addition to and
independent of the Bank's right of set-off and to secure the payment of this
Note and all other liabilities, the Borrower grants to the Bank a continuing
lien upon and security interest in any and all monies, securities, and other
property of the Borrower and the proceeds thereof, now or hereafter held or
received by or in transit to the Bank from or for the Borrower, and also upon
any and all deposit (general or special), agency, escrow, and other accounts and
credits of the Borrower at the Bank, at any time and from time to time existing.
(d) The following paragraph sets forth a warrant of authority
for an attorney to confess judgment against the Borrower. In granting this
warrant to confess judgment against the Borrower, the Borrower hereby knowingly,
intentionally, voluntarily and, on the advice of separate counsel,
unconditionally waives any and all rights the Borrower has or may have to prior
notice and an opportunity for hearing before a judgment can be entered
hereunder:
THE BORROWER UNCONDITIONALLY AND IRREVOCABLY AUTHORIZES AND EMPOWERS
ANY ATTORNEY OR ANY PROTHONOTARY, CLERK OF COURT OR COURT
13
OF RECORD, AS ATTORNEY FOR THE BORROWER, TO APPEAR FOR THE BORROWER IN SUCH
COURT AT ANY TIME AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT AND CONFESS
JUDGMENT AGAINST THE BORROWER, IN FAVOR OF THE BANK, AND ITS SUCCESSORS AND
ASSIGNS, FOR ALL OR ANY PORTION OF THE OUTSTANDING PRINCIPAL BALANCE OF THIS
NOTE, TOGETHER WITH UNPAID INTEREST, COSTS OF SUIT AND ATTORNEYS' FEES ADDED FOR
COLLECTION IN AN AMOUNT EQUAL TO THE LESSER OF (1) TWENTY PERCENT (20.0%) OF
SUCH SUM AND INTEREST THEN DUE HEREUNDER OR $500.00, WHICHEVER IS GREATER, OR
(2) THE MAXIMUM PERMITTED BY LAW. THE BORROWER ALSO RELEASES ALL ERRORS, AND TO
THE EXTENT PERMITTED BY LAW, WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL
APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER
ENACTED. IF A COPY OF THIS NOTE, VERIFIED BY AFFIDAVIT OF THE BANK OR SOMEONE ON
BEHALF OF THE BANK, SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE
NECESSARY TO FILE AN ORIGINAL OF THIS NOTE AS A WARRANT OF ATTORNEY. THE
AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST THE BORROWER SHALL
NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF OR BY ANY IMPERFECT EXERCISE
THEREOF AND SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO;
THE AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS, FROM TIME TO
TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN AS THE BANK SHALL DEEM
NECESSARY OR DESIRABLE, FOR ALL OF WHICH THIS NOTE OR A VERIFIED COPY HEREOF
SHALL BE A SUFFICIENT WARRANT. TO THE EXTENT PERMITTED BY LAW, INTEREST SHALL
ACCRUE ON ANY JUDGMENT AT THE RATE OF INTEREST WHICH WOULD ACCRUE ON THE UNPAID
PRINCIPAL BALANCE OF THIS NOTE UPON THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER
THIS NOTE.
(e) If the Bank retains the services of counsel in connection
with an Event of Default or to enforce a remedy under this Note, reasonable
attorney's fees shall be payable by the Borrower to the Bank, and such fees
shall be added to the amount due under this Note. The Borrower shall pay all
costs incurred by the Bank in connection with proceedings to recover any sums
due hereunder. The Borrower shall also pay any reasonable charge of the Bank in
connection with the satisfaction of this Note.
(f) The remedies of the Bank as provided herein and all
warrants of attorney provided herein shall be cumulative and concurrent, and may
be pursued singly, successively, or together against the Borrower at the sole
discretion of the Bank, and such warrants shall not be exhausted by any exercise
thereof but may be exercised as often as the occasion therefor shall occur; and
the failure to exercise any such rights or remedy shall in no event be construed
as a waiver or release of the same.
7. Representations and Certain Covenants. (a) The Borrower hereby
represents and warrants to the Bank that (i) this Note has been duly executed
and delivered by the Borrower and constitutes the legal, valid and binding
obligations of the Borrower enforceable in accordance with its terms, and (ii)
for so long as any indebtedness evidenced hereby remains outstanding the
Borrower's Chief Executive Office is as stated below or as otherwise stated in a
subsequent written notice delivered to the Bank pursuant to the terms hereof.
The Borrower hereby ratifies, confirms and reaffirms, without condition, all the
terms and conditions of the Loan Agreement and agrees that it continues to be
bound by the terms and conditions thereof.
(b) The Borrower covenants and agrees that until all
indebtedness evidenced hereby has been paid in full, the Borrower shall: (i) use
the proceeds of the Line of Credit Advances only for the purpose specified to
the Bank at or prior to the execution hereof; (ii) promptly notify the Bank in
writing of any change in its Chief Executive Office or jurisdiction of
formation; (iii) purchase and maintain
14
policies of insurance (including flood insurance) to protect against such risks
and casualties, and in such amounts, as shall be required by the Bank and/or
applicable law, which policies shall (A) be in form and substance satisfactory
to the Bank, (B) designate the Bank as loss payee and, at the Bank's option, as
additional insured, and (C) be (or certificates evidencing same shall be)
deposited with the Bank; and (iv) provide, upon request, financial or other
information, documentation or certifications to the Bank (including balance
sheets, income statements, accounts receivable and accounts payable agings), all
in form and content satisfactory to the Bank.
(c) The Borrower hereby authorizes the Bank, and the Bank
shall have the continuing right, at its sole option and discretion, to: (i) do
anything which the Borrower is required but fails to do hereunder, and in
particular the Bank may, if the Borrower fails to do so, obtain and pay any
premiums payable on any policy of insurance required to be obtained or
maintained hereunder, and add any amounts paid under this Paragraph 7(c) to the
principal amount of the indebtedness evidenced by this Note; or (ii) direct any
insurer to make payment of any insurance proceeds including any earned or
unearned premiums, directly to the Bank, and apply such moneys to any
indebtedness or other amount evidenced hereby in such order or fashion as the
Bank may elect
8. Miscellaneous. (a) The Bank shall not be deemed, by any act of
omission or commission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by the Bank, and then only to the
extent specifically set forth in the writing. A waiver as to one event shall not
be construed as continuing or as a bar to or waiver of any right or remedy as to
a subsequent event.
(b) Nothing herein contained nor any transaction related
hereto shall be construed or shall operate either presently or prospectively to
require the Borrower to make any payments or to do any act contrary to law, but
if any clause or provision herein contained shall otherwise so operate to
invalidate this Note, in whole or in part, then such clause or provision only
shall be held for naught as though not herein contained and the remainder of
this Note shall remain operative and in full force and effect.
(c) The provisions of this Note shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Note without the prior written consent of the Bank,
such consent to be granted or withheld in the sole discretion of the Bank. The
Bank may, without notice to the Borrower and at any time whether or not this
Note is due (i) assign, pledge, or transfer this Note and any collateral
therefor, whereupon the Bank shall be relieved of all duties and
responsibilities hereunder and relieved from any and all liability with respect
to any collateral so pledged or transferred, and the rights and privileges of
the Bank under this Note shall inure to the benefit of its successors, assigns,
and any pledgee or transferee hereof, who shall for all purposes stand in the
place of the Bank and have all the rights of the Bank hereunder; (ii) grant
participations in this Note and other Loan Documents and the transactions
evidenced thereby; (iii) exercise all rights necessary or required, in the
Bank's sole discretion, to protect its interests hereunder; and (iv) provide
from time to time any information relating to the financial condition, business
preparations, or credit worthiness of the Borrower to or at the direction of any
governmental authority and to any person or entity which in the ordinary course
of its business makes credit reference inquiries or which may succeed to or
participate in all or part of the Bank's interest in this Note or any Line of
Credit Advance evidenced hereby.
(d) Any notice or consent required hereunder shall be in
writing and shall be delivered either in person, by facsimile transmission,
overnight courier or by certified mail, postage prepaid, return receipt
requested, to the addresses of the parties first above written, unless such
address is changed by written notice to the other parties. All notices and other
communications shall be deemed effective when delivered in person, when received
by registered or certified mail or overnight courier,
15
when transmitted by facsimile transmission during a Business Day (with
confirmation of receipt) or when refused by the addressee, as the case may be.
(e) The Bank shall in no event be construed for any purpose to
be a partner, joint venturer or associate of the Borrower or of any lessee,
operator, concessionaire or licensee of the Borrower in the conduct of their
respective businesses.
(f) This Note is intended as an instrument under seal and
shall be deemed made under and governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania in all respects
without giving effect to its conflict of laws principles, including matters of
construction, performance and enforcement. Each Borrower hereby agrees that any
action or proceeding against it may be commenced and maintained in any court in
the Commonwealth of Pennsylvania or in the United States District Court for the
Western District of Pennsylvania, and each Borrower further consents to service
of process in any such action by the mailing of copies of such process to the
Borrower in the manner and at the Borrower's Chief Executive Office. The
Borrower hereby waives any claim that Allegheny County, Pennsylvania is an
inconvenient forum and that any action or proceeding arising out of or relating
to this Note and commenced in any state or federal courts sitting in Allegheny
County, Pennsylvania lacks proper venue. The Borrower agrees that the courts
sitting in the Commonwealth of Pennsylvania and the United States District Court
for the Western District of Pennsylvania shall have exclusive jurisdiction for
any action or proceeding commenced by or through the Borrower with respect to
the subject matter hereof and all controversies and disputes arising hereunder.
(g) Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note or portion thereof shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Note.
(h) The Borrower waives and releases any right to require the
Bank to collect any of the indebtedness evidenced by this Note from any
particular collateral under any theory of marshalling of assets or otherwise and
specifically authorizes the Bank to apply any collateral for this Note in any
manner that the Bank, in its sole discretion, may determine. The Borrower
represents and warrants to the Bank that the proceeds of this Note will be used
solely for business or commercial purposes and agrees that any disbursement of
the proceeds of this Note, or any portion thereof, to or at the direction of the
Borrower whether for its own account or otherwise, shall be conclusively deemed
to constitute disbursement of such proceeds to and for the benefit of the
Borrower.
(i) THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO DEMAND A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREIN. FURTHER, EACH BORROWER HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF THE BANK NOR THE BANK'S COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT, IN THE EVENT OF SUCH LITIGATION, THE BANK WOULD
NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH BORROWER
FURTHER ACKNOWLEDGES THAT THE BANK HAS BEEN OR WILL BE INDUCED TO MAKE THE LINE
OF CREDIT ADVANCES EVIDENCED BY THIS NOTE BY, INTER ALIA, THE PROVISIONS OF THIS
PARAGRAPH.
(j) No delay or omission on the part of the Bank in exercising
any right hereunder shall operate as a waiver of such right or of any other
rights under this Note. Presentment, demand,
16
dishonor, protest, notice of dishonor, notice of protest and all other notices
and demands are hereby waived by the Borrower. The Borrower promises and agrees
to pay all costs, claims, taxes (other than taxes on the income of Bank),
penalties, judgments and expenses incurred by the Bank in connection with the
taking, administering, enforcing or collecting this Note or any other liability
or preserving any right or interest of the Bank hereunder including attorneys'
fees equal to the lesser of (A) 20% of the above sum and interest then due
hereunder or $500.00, whichever is greater, or (B) the maximum amount permitted
by law, and attorney's costs and all costs of legal proceedings.
(k) The Borrower hereby waives any and all now existing or
hereafter arising rights to recoup or offset any obligation of the Borrower
under or in connection with this Note against any claim or right of the Borrower
against the Bank.
(l) The Borrower hereby irrevocably appoints the Bank and each
holder hereof as the Borrower's attorney-in-fact to endorse the Borrower's name
to any draft or check which may be payable to the Borrower in order to collect
the proceeds of any insurance or any returned or unearned premiums in respect of
any policies of insurance required to be maintained hereunder.
(m) "Borrower" refers individually and collectively to all
makers of this Note, including, in the case of a partnership, all general
partners of such partnership individually and collectively, whether or not such
partners sign below, and each general partner shall be bound hereby both in such
general partner's individual and partnership capacities.
(n) The Borrower represents and warrants that the Bank has
duly performed or otherwise met all of its duties and obligations under the Loan
Agreement or otherwise owed to the Borrower and that there are no claims, causes
of action, suits, debts, liens, obligations, liabilities, demands, losses,
defenses, offsets, costs or expenses (including attorneys' fees) of any kind,
character or nature whatsoever, vested or contingent, at law, in equity or
otherwise (collectively, "Claims"), which the Borrower has or claims to have
against the Bank, arising out of or connected with any act or omission of the
Bank existing or occurring on or prior to the date of this Note.
(o) The Borrower releases, waives and forever discharges and
relieves the Bank and its subsidiaries and Affiliates and the officers,
directors, agents, attorneys and employees of each (hereinafter "Releasees")
from any and all Claims which the Borrower ever had, now has, or which may
result from the past or present state of things, against or related to
Releasees. The Borrower agrees to assume the risk of releasing any and all
unknown, unanticipated or misunderstood claims hereby.
IN WITNESS WHEREOF, the Borrower, intending to be legally bound hereby,
has executed this Fifth Amended and Restated Note the day and year first above
written.
WITNESS/ATTEST: SUPERIOR WELL SERVICES, LTD.
By: BUFFALO VALLEY REAL ESTATE COMPANY,
its sole general partner
By: /s/ XXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX, (SEAL)
-------------------------------- --------------------------------
Name: Name:
Title: Title:
17
