AMENDED AND RESTATED COMMITTED LINE OF CREDIT NOTE
$3,450,000 July 31, 1999
FOR VALUE RECEIVED, THE BETHLEHEM CORPORATION, with an address at 25th & Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 18045 (the "Borrower") promises to pay to the order
of PNC BANK, NATIONAL ASSOCIATION at its offices located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other location as the Bank may
designate from time to time, (the "Bank"), in lawful money of the United States
of America in immediately available funds the principal sum of Three Million
Four Hundred and Fifty Thousand Dollars ($3,450,000) (the "Facility") or such
lesser amount as may be advanced to or for the benefit of the Borrower
hereunder, together with interest accruing on the outstanding principal balance
from the date hereof, as provided below. (This Amended and Restated Committed
Line of Credit Note, amends, restates and replaces in its entirety, but does not
repay the similar Committed Line of Credit Note from the Borrower to the Bank
dated June 2, 1998 in the original face amount of $3,200,000.)
1. Rate of Interest. Amounts outstanding under this Note will bear interest at
a rate per annum which is at all times one and one-half percentage points
(1.50%) in excess of the Prime Rate. Interest will be calculated on the basis of
a year of 360 days for the actual number of days in each interest period. As
used herein, "Prime Rate" shall mean the rate publicly announced by the Bank
from time to time as its prime rate. The Prime Rate is not tied to any external
rate or index and does not necessarily reflect the lowest rate of interest
actually charged by the Bank to any particular class or category of customers.
If and when the Prime Rate changes, the rate of interest on this Note will
change automatically without notice to the Borrower, effective on the date of
any such change. In no event will the rate of interest hereunder exceed the
maximum rate allowed by law.
2. Advances. The Borrower may borrow, repay and reborrow hereunder until the
Expiration Date, subject to the terms and conditions of this Note and the Loan
Documents (as defined herein) including, without limitation, the requirement
that the Borrower permanently reduce the maximum unpaid principal balance due
under this Note to an amount not to exceed Three Million Two Hundred Thousand
Dollars ($3,200,000) on October 31, 1999. The "Expiration Date" shall mean July
31, 2000, or such later date as may be designated by the Bank by written notice
from the Bank to the Borrower. The Borrower acknowledges and agrees that in no
event will the Bank be under any obligation to extend or renew the Facility or
this Note beyond the initial Expiration Date. However, the Bank agrees to make
every reasonable effort to provide the Borrower with at least sixty (60) days
prior written notice of its decision not to extend or renew the Facility. In no
event shall the aggregate unpaid principal amount of advances under this Note
exceed the face amount of this Note.
3. Advance Procedures. A request for advance made by telephone must be
promptly confirmed in writing by such method as the Bank may require. The
Borrower authorizes the Bank to accept telephonic requests for advances, and the
Bank shall be entitled to rely upon the authority of any person providing such
instructions. The Borrower hereby indemnifies and
holds the Bank harmless from and against any and all damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees and
expenses) which may arise or be created by the acceptance of such telephone
requests or making such advances. The Bank will enter on its books and records,
which entry when made will be presumed correct, the date and amount of each
advance, as well as the date and amount of each payment made by the Borrower.
4. Payment Terms. Accrued interest will be due and payable on the 1st day of
each month, beginning with the payment due on August 1, 1999. The outstanding
principal balance and any accrued but unpaid interest shall be due and payable
on the Expiration Date. If any payment under this Note shall become due on a
Saturday, Sunday or public holiday under the laws of the State where the Bank's
office indicated above is located, such payment shall be made on the next
succeeding business day and such extension of time shall be included in
computing interest in connection with such payment. The Borrower hereby
authorizes the Bank to charge the Borrower's deposit account at the Bank for any
payment when due hereunder by accepting the benefits of this Note and the Bank
hereby agrees to make every reasonable effort to do so. Should the Bank fail to
do so at a point in time when sufficient funds to make the necessary payment are
on deposit therein, the Bank shall be precluded from declaring an Event of
Default under the Loan Documents based solely upon the failure of the Borrower
to make the scheduled payment in question. Notwithstanding the foregoing, the
Bank agrees to make every reasonable effort to provide the Borrower with at
least five (5) days prior written notice before charging such account for any
amount other than principal and interest. Payments received will be applied to
charges, fees and expenses (including attorneys' fees), accrued interest and
principal in any order the Bank may choose, in its sole discretion.
5. Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within ten (10) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to the lesser of five
percent (5.00%) of the amount of such payment or $500. Such ten (10) day period
shall not be construed in any way to extend the due date of any such payment.
The late charge is imposed for the purpose of defraying the Bank's expenses
incident to the handling of delinquent payments and is in addition to, and not
in lieu of, the exercise by the Bank of any rights and remedies hereunder, under
the other Loan Documents or under applicable laws, and any fees and expenses of
any agents or attorneys which the Bank may employ. Upon maturity, whether by
acceleration, demand or otherwise, and at the option of the Bank upon the
occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, this Note shall bear interest at a rate per annum (based on
a year of 360 days and actual days elapsed) which shall be three percentage
points (3.00%) in excess of the interest rate in effect from time to time under
this Note but not more than the maximum rate allowed by law (the "Default
Rate"). The Default Rate shall continue to apply whether or not judgment shall
be entered on this Note.
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6. Prepayment. The indebtedness evidenced by this Note may be prepaid in whole
or in part at any time without penalty.
7. Other Loan Documents. This Note is issued in connection with the Loan
Agreement between the Borrower and the Bank dated of even date herewith (the
"Loan Agreement"), the terms of which are incorporated herein by reference,
together with each of the documents and instruments executed and delivered in
connection therewith (collectively, the "Loan Documents"), and is secured by the
property described in the Loan Documents (if any) and by such other collateral
as previously may have been or may in the future be granted to the Bank to
secure this Note.
8. Events of Default. The occurrence of any of the events set forth in Article
7 of the Loan Agreement will be deemed to be an "Event of Default" under this
Note, subject to the applicable notice and cure periods specified in the Loan
Agreement.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the option of the Bank and without demand or
notice of any kind, may be accelerated and become immediately due and payable;
(d) at the option of the Bank, this Note will bear interest at the Default Rate
from the date of the occurrence of the Event of Default; and (e) the Bank may
exercise from time to time any of the rights and remedies available to the Bank
under the Loan Documents or under applicable law.
9. Power to Confess Judgment. The Borrower hereby empowers any attorney of any
court of record, after the occurrence of any Event of Default hereunder, to
appear for the Borrower and, with or without complaint filed, confess judgment,
or a series of judgments, against the Borrower in favor of the Bank or any
holder hereof for the entire principal balance of this Note, all accrued
interest and all other amounts due hereunder, together with costs of suit and an
attorney's commission of the greater of 10% of such principal and interest or
$1,000 added as a reasonable attorney's fee, and for doing so, this Note or a
copy verified by affidavit shall be a sufficient warrant. Any attorneys' fees
attempted to be recovered under this Section 9 shall be reasonable and based on
the actual time expended by counsel for the Bank and calculated based on
reasonable hourly charges under the circumstances. The Borrower hereby forever
waives and releases all errors in said proceedings and all rights of appeal and
all relief from any and all appraisement, stay or exemption laws of any state
now in force or hereafter enacted. Interest on any such judgment shall accrue at
the Default Rate.
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No single exercise of the foregoing power to confess judgment, or a series of
judgments, shall be deemed to exhaust the power, whether or not any such
exercise shall be held by any court to be invalid, voidable, or void, but the
power shall continue undiminished and it may be exercised from time to time as
often as the Bank shall elect until such time as the Bank shall have received
payment in full of the debt, interest and costs.
10. Right of Setoff. In addition to all liens upon and rights of setoff against
the money, securities or other property of the Borrower given to the Bank by
law, the Bank shall have, with respect to the Borrower's obligations to the Bank
under this Note and to the extent permitted by law, a contractual possessory
security interest in and a contractual right of setoff against, and the Borrower
hereby assigns, conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all deposits, moneys, securities
and other property of the Borrower now or hereafter in the possession of or on
deposit with, or in transit to, the Bank whether held in a general or special
account or deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding, however, all IRA, Xxxxx, and trust
accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to the Borrower, provided that an Event of Default
has occurred hereunder and remains uncured. Every such right of setoff shall be
deemed to have been exercised immediately upon the occurrence of an Event of
Default hereunder without any action of the Bank, although the Bank may enter
such setoff on its books and records at a later time.
11. Miscellaneous. No delay or omission of the Bank to exercise any right or
power arising hereunder shall impair any such right or power or be considered to
be a waiver of any such right or power, nor shall the Bank's action or inaction
impair any such right or power. The Borrower agrees to pay on demand, to the
extent permitted by law, all costs and expenses incurred by the Bank in the
enforcement of its rights in this Note and in any security therefor, including
without limitation reasonable fees and expenses of the Bank's counsel, exclusive
of all such costs and expenses relating to the salaried employees of the Bank,
and all related administrative and overhead expenses of the Bank. If any
provision of this Note is found to be invalid by a court, all the other
provisions of this Note will remain in full force and effect. The Borrower and
all other makers and indorsers of this Note hereby forever waive presentment,
protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or entities
hereunder will be joint and several. This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Bank and its successors and assigns.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is currently
located. THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
BANK AND THE BORROWER
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DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE
INDICATED ABOVE IS CURRENTLY LOCATED, EXCLUDING ITS CONFLICT OF LAWS RUlES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court for the county or judicial district where the Bank's office
indicated above is currently located, and consents that all service of process
be sent by nationally recognized overnight courier service directed to the
Borrower at the Borrower's address set forth herein and service so made will be
deemed to be completed on the business day after deposit with such courier;
provided that nothing contained in this Note will prevent the Bank from bringing
any action, enforcing any award or judgment or exercising any rights against the
Borrower individually, against any security or against any property of the
Borrower within any other county, state or other foreign or domestic
jurisdiction. The Borrower acknowledges and agrees that the venue provided above
is the most convenient forum for both the Bank and the Borrower. The Borrower
waives any objection to venue and any objection based on a more convenient forum
in any action instituted under this Note.
12. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
[CORPORATE SEAL] THE BETHLEHEM CORPORATION,
a Pennsylvania corporation
Attest:______________________________ By:__________________________(SEAL)
Xxxx X. Xxxxxxxxxxx
President & Chief Executive Officer
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