Exhibit 10.3
THIS FIFTH AMENDED AND RESTATED FACILITY D NOTE IS AN AMENDMENT, RESTATEMENT,
MODIFICATION AND INCREASE, BUT NOT A NOVATION OF(i) THE FOURTH AMENDED AND
RESTATED FACILITY D NOTE DATED JULY 8, 2004, AND (ii) THE OVERLINE FACILITY D
NOTE BY THE BORROWERS IN FAVOR OF THE BANK DATED NOVEMBER 3, 2004 AS AMENDED AND
RESTATED BY THE AMENDED AND RESTATED OVERLINE FACILITY D NOTE DATED DECEMBER 21,
2004 (collectively the "Existing Facility D Notes"). THIS FIFTH AMENDED AND
RESTATED FACILITY D NOTE CONSOLIDATES AND REPLACES THE EXISTING FACILITY D
NOTES.
FIFTH AMENDED AND RESTATED FACILITY D NOTE
$11,000,000 Pittsburgh, Pennsylvania
September 30, 2005
FOR VALUE RECEIVED, the undersigned, PDG Environmental, Inc.,
a Delaware corporation, Project Development Group, Inc., a Pennsylvania
corporation, Enviro-Tech Abatement Services, Co., a North Carolina corporation,
and PDG, Inc., a Pennsylvania corporation (collectively and jointly and
severally, "Borrowers"), hereby jointly and severally promise to pay to the
order of Sky Bank, an Ohio banking institution having an office at 000 Xxxx
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxxx 00000 ("Bank"), on or before the
Facility D Expiry Date, and at such earlier dates as may be required by the Loan
Agreement (as defined below), the lesser of (i) the principal sum of Eleven
Million and 00/100 Dollars ($11,000,000.00), or (ii) the aggregate unpaid
principal amount of all Facility D Loans made by Bank to Borrower pursuant to
the Loan Agreement. Borrowers hereby further jointly and severally promise to
pay to the order of Bank interest on the unpaid principal amount of this Fifth
Amended and Restated Facility D Note from time to time outstanding at the rate
or rates per annum determined pursuant to Article II of, or as otherwise
provided in, the Loan Agreement, and with such amounts being payable on the
dates set forth in Article II of, or as otherwise provided in, the Loan
Agreement.
All payments and prepayments to be made in respect of
principal, interest, or other amounts due from Borrowers under this Fifth
Amended and Restated Facility D Note shall be payable at 12:00 noon, New Castle,
Pennsylvania time, on the day when due, without presentment, demand, protest or
notice of any kind, all of which are expressly waived, and an action therefor
shall immediately accrue. All such payments shall be made to Bank at its
designated office located at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxxxxxxxxxx, in lawful money of the United States of America in immediately
available funds without setoff, counterclaim or other deduction of any nature.
Except as otherwise provided in the Loan Agreement, if any
payment of principal or interest under this Fifth Amended and Restated Facility
D Note shall become due on a day which is not a Business Day, such payment shall
be made on the next following Business Day
and such extension of time shall be included in computing interest in connection
with such payment.
This Fifth Amended and Restated Facility D Note is one of the
Notes referred to in, and is entitled to the benefits of, that certain Loan
Agreement dated as of August 3, 2000, as amended by Amendment to Loan Agreement
dated as of June 14, 2001, that certain Second Amendment to Loan Agreement dated
as of May 6, 2002, that certain Third Amendment to Loan Agreement dated as of
August 30, 2002, that certain Fourth Amendment to Loan Agreement dated as of
December 31, 2002, that certain Fifth Amendment to Loan Agreement dated as of
February 28, 2003, that certain Sixth Amendment to Loan Agreement dated as of
July 22, 2003, that certain Seventh Amendment to Loan Agreement dated as of
January 28, 2004, that certain Eighth Amendment to Loan Agreement, dated July 8,
2004, that certain Ninth Amendment to Loan Agreement dated as of November 3,
2004, that certain Tenth Amendment to Loan Agreement dated as of December 21,
2004, that certain Eleventh Amendment to Loan Agreement dated as of June 22,
2005,and further amended by that Twelfth Amendment to Loan Agreement dated of
even date herewith by and between Borrowers and Bank (as such agreement may be
further amended, modified or supplemented from time to time, the "LOAN
AGREEMENT"), which among other things, provides for the acceleration of the
maturity hereof upon the occurrence of certain events and may provide for
prepayments in certain circumstances and upon certain terms and conditions. This
Fifth Amended and Restated Facility D Note is secured by, and is entitled to the
benefits of, the Loan Documents, as the same may be amended, modified or
supplemented from time to time. Capitalized terms used in this Fifth Amended and
Restated Facility D Note which are defined in the Loan Agreement shall have the
meanings assigned to them therein unless otherwise defined in this Fifth Amended
and Restated Facility D Note.
This Fifth Amended and Restated Facility D Note shall be
governed by, and shall be construed and enforced in accordance with, the laws of
the Commonwealth of Pennsylvania without regard to the principles applicable to
the conflicts of laws thereof. Each Borrower hereby consents to the jurisdiction
and venue of the Court of Common Pleas of Allegheny County, Pennsylvania, Court
of Common Pleas of Xxxxxxxx County, Pennsylvania and the United States District
Court for the Western District of Pennsylvania with respect to any suit arising
out of, relating to or mentioning this Fifth Amended and Restated Facility D
Note.
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CONFESSION OF JUDGMENT. EACH BORROWER HEREBY IRREVOCABLY Borrowers
AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY Initials
CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS JUDGMENT
AGAINST SUCH BORROWER, UPON THE OCCURRENCE OF AN EVENT OF ---------
DEFAULT, FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER JCR
THIS FIFTH AMENDED AND RESTATED FACILITY D NOTE, THE LOAN ---------
AGREEMENT AND THE OTHER LOAN DOCUMENTS, WITH OR WITHOUT
DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND
WITH AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE AMOUNT OF SUCH ---------
JUDGMENT, BUT NOT LESS THAN ONE THOUSAND DOLLARS ($1,000), ADDED
FOR ATTORNEYS' COLLECTION FEES. NOTWITHSTANDING THE ATTORNEY'S
COMMISSION PROVIDED FOR IN THE PRECEDING SENTENCE (WHICH IS
INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM
CERTAIN), THE AMOUNT OF ATTORNEYS' FEES THAT THE BANK MAY RECOVER
FROM SUCH BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES
INCURRED BY THE BANK. TO THE EXTENT PERMITTED BY LAW, EACH
BORROWER RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF
THIS FIFTH AMENDED AND RESTATED FACILITY D NOTE, VERIFIED BY
AFFIDAVIT BY OR ON BEHALF OF THE HOLDER OF THIS FIFTH AMENDED AND
RESTATED FACILITY D NOTE SHALL HAVE BEEN FILED IN SUCH ACTION, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL FIFTH AMENDED AND
RESTATED FACILITY D Note AS A WARRANT OF ATTORNEY. THE AUTHORITY
AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST BORROWERS
SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE
EXERCISED AS OFTEN AS THE HOLDER SHALL FIND IT NECESSARY AND
DESIRABLE AND THIS FIFTH AMENDED AND RESTATED FACILITY D NOTE
SHALL BE A SUFFICIENT WARRANT THEREFOR. THE HOLDER HEREOF MAY
CONFESS ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT
JURISDICTIONS FOR ALL OR ANY PART OF THE AMOUNT OWING HEREUNDER,
WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED
ON MORE THAN ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY
JUDGMENT CONFESSED AGAINST ANY BORROWER HEREUNDER IS STRICKEN OR
OPENED UPON APPLICATION BY OR ON SUCH XXXXXXXX'S BEHALF FOR ANY
REASON, XXXXXX IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR
FOR AND CONFESS JUDGMENT AGAINST SUCH BORROWER FOR ANY PART OR
ALL OF THE AMOUNTS OWING HEREUNDER, AS PROVIDED FOR HEREIN, IF
DOING SO WILL CURE ANY ERRORS OR DEFECTS IN SUCH PRIOR
PROCEEDINGS.
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WAIVER OF TRIAL BY JURY. EACH BORROWER EXPRESSLY, KNOWINGLY AND Borrowers
VOLUNTARILY WAIVES ALL BENEFIT AND ADVANTAGE OF ANY RIGHT TO A Initials
TRIAL BY JURY, AND IT WILL NOT AT ANY TIME INSIST UPON, OR PLEAD
OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR ---------
ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION ARISING IN CONNECTION JCR
WITH THIS FIFTH AMENDED AND RESTATED FACILITY D NOTE, THE LOAN ---------
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
---------
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NOTICE - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIM YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
IN WITNESS WHEREOF, and intending to be jointly and severally
and legally bound hereby, each Borrower, by its duly authorized officers, has
executed, issued and delivered this Fifth Amended and Restated Facility D Note
in Pittsburgh, Pennsylvania on the day and year written above.
ATTEST: PDG ENVIRONMENTAL, INC.
/a/ Xxxxx X. Xxxxxxxxx By:/s/ Xxxx X, Xxxxx
---------------------------------- ------------------------
Secretary Title :President & CEO
--------------------
ATTEST: PROJECT DEVELOPMENT GROUP, INC.
/a/ Xxxxx X. Xxxxxxxxx By: :/s/ Xxxx X, Xxxxx
---------------------------------- ----------------------
Secretary Title: President & CEO
---------------------
ATTEST: ENVIRO-TECH ABATEMENT
SERVICES, CO.
/a/ Xxxxx X. Xxxxxxxxx By: :/s/ Xxxx X, Xxxxx
---------------------------------- ----------------------
Secretary Title: President & CEO
---------------------
ATTEST: PDG, INC.
/a/ Xxxxx X. Xxxxxxxxx By: :/s/ Xxxx X, Xxxxx
---------------------------------- ----------------------
Secretary Title: President & CEO
---------------------
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