Amended and Restated Committed Non-Revolving Line of Credit Note $20,000,000.00 November 19, 2008
Exhibit 99.3
| Amended and Restated Committed | ||
| Non-Revolving Line of Credit Note |  |
|
| $20,000,000.00 | November 19, 2008 |
FOR VALUE RECEIVED, XXXXX FAMILY LIMITED PARTNERSHIP (the “Borrower”), with an address at 0000
Xxxxx Xxxx, Xxxx, XX 00000, promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the
“Bank”), at 000 Xxxxx Xxxxxx, Xxxx, XX 00000, or at such other location as the Bank may designate
from time to time, the principal sum of TWENTY MILLION AND 00/100 DOLLARS ($20,000,000.00) or so
much thereof as may be disbursed to or for the account of the Borrower, with interest from the date
of disbursement on the unpaid balance until payment in full, as provided below:
1. Rate of Interest. The principal amount outstanding under this Note will bear interest
at a rate per annum (calculated on the basis of the actual number of days that principal is
outstanding over a year of 360 days) equal to the sum of (A) LIBOR plus (B) one hundred
(100) basis points (1.00%) (the “Applicable LIBOR”). The Applicable LIBOR shall remain in effect
until adjusted by the Bank effective on the first day of each month, without notice to the
Borrower. For the purpose hereof, the following terms shall have the following meanings:
“Business Day” shall mean any day other than a Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required to be closed for business in Erie, PA.
“LIBOR” shall mean, for all advances outstanding at any time during any month, the interest
rate per annum determined by the Bank by dividing (i) the Published Rate by (ii) a number equal
to 1.00 minus the LIBOR Reserve Percentage. As used herein, “Published Rate” shall mean the
rate of interest published on the first Business Day of each month in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period
(or, if no such rate is published therein for any reason, then such rate published therein on
the most recent Business Day prior to the first day of such month; provided, that if no such
rate of interest is published therein for longer than 30 consecutive days, then the Published
Rate shall be the eurodollar rate for a one month period, as published in another publication
determined by the Bank).
“LIBOR Reserve Percentage” shall mean the maximum effective percentage in effect on such
day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently referred to as
“Eurocurrency liabilities”).
LIBOR shall be adjusted on the effective date of any change in the LIBOR Reserve Percentage as of
such effective date. The Bank shall give prompt notice to the Borrower of LIBOR as determined or
adjusted in accordance herewith, which determination shall be conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive) that, by reason of
circumstances affecting the eurodollar market generally, deposits in dollars (in the applicable
amounts) are not being offered to banks in the eurodollar market for the selected term, or adequate
means do not exist for ascertaining LIBOR, then the Bank shall give notice thereof to the Borrower.
Thereafter, until the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, (a) the availability of the Applicable LIBOR shall be suspended, and
(b) the interest rate for all advances then bearing interest under the Applicable LIBOR shall be
converted on the first Business Day of the next calendar month to a rate of interest per annum
(calculated on the
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basis of actual number of days that principal is outstanding over a year of 360
days) equal to the highest prime rate as published in the Money Rates section of The Wall Street
Journal from time to time (the “Applicable Base Rate”), or if such index or publication is no
longer published, or available, a comparable index selected by the Bank. If and when the
aforementioned prime rate changes, the Applicable Base Rate will change automatically without
notice to the Borrower, effective on the date of such change.
In addition, if, after the date of this Note, the Bank shall determine (which determination shall
be final and conclusive) that any enactment, promulgation or adoption of or any change in any
applicable law, rule or regulation, or any change in the interpretation or administration thereof
by a governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or directive (whether
or not having the force of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for the Bank to make or maintain or fund loans bearing interest based on
the Applicable LIBOR, the Bank shall notify the Borrower. Upon receipt of such notice, until the
Bank notifies the Borrower that the circumstances giving rise to such determination no longer
apply, (a) the availability of the Applicable LIBOR shall be suspended, and (b) the interest rate
on all advances then bearing interest under the Applicable LIBOR shall be converted to the
Applicable Base Rate either (i) on the first Business Day of the next calendar month, if the Bank
may lawfully continue to maintain advances at the Applicable LIBOR to such day, or (ii) immediately
if the Bank may not lawfully continue to maintain advances under the Applicable LIBOR.
In no event will the rate of interest hereunder exceed the maximum rate allowed by law.
2. Advances. The Borrower may borrow but may not repay and reborrow hereunder until the
Expiration Date, subject to the terms and conditions of this Note and the Loan Documents (as
defined herein). The “Expiration Date” shall mean November 18, 2013, 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 this Note
beyond the Expiration Date. 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. Interest shall be payable monthly in arrears on the first day of each
month. The outstanding principal balance and any accrued but unpaid interest shall be due and
payable on the Expiration Date. The Borrower hereby authorizes the Bank to charge the Borrower’s
deposit account at the Bank for any payment when due hereunder. 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 fifteen (15)
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%) of the amount of such payment or $100.00 (the “Late
Charge”). Such fifteen (15) day period shall not be construed in any way to extend the due date of
any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s
option upon the occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum
(based on the actual number of days that principal is outstanding over a year of 360 days) which
shall be three percentage
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points (3%) 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. Both
the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying
the Bank’s expenses incident to the handling of delinquent payments, but are in addition to, and
not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or attorneys which the
Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of
carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are
reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and
that the actual harm incurred by the Bank cannot be estimated with certainty and without
difficulty.
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 a letter agreement between
the Borrower and the Bank, dated on or before the date hereof, and the other agreements and
documents executed and/or delivered in connection therewith or referred to therein, the terms of
which are incorporated herein by reference (as amended, modified or renewed from time to time,
collectively the “Loan Documents”), and is secured by the property (if any) described in the Loan
Documents 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 following events will be deemed to be
an “Event of Default” under this Note: (i) the nonpayment of any principal, interest or other
indebtedness under this Note when due; (ii) the occurrence of any event of default or any default
and the lapse of any notice or cure period, or any Obligor’s failure to observe or perform any
covenant or other agreement, under or contained in any Loan Document or any other document now or
in the future evidencing or securing any debt, liability or obligation of any Obligor to the Bank;
(iii) the filing by or against any Obligor of any proceeding in bankruptcy, receivership,
insolvency, reorganization, liquidation, conservatorship or similar proceeding (and, in the case of
any such proceeding instituted against any Obligor, such proceeding is not dismissed or stayed
within 30 days of the commencement thereof, provided that the Bank shall not be obligated to
advance additional funds hereunder during such period); (iv) any assignment by any Obligor for the
benefit of creditors, or any levy, garnishment, attachment or similar proceeding is instituted
against any property of any Obligor held by or deposited with the Bank; (v) a default with respect
to any other indebtedness of any Obligor for borrowed money, if the effect of such default is to
cause or permit the acceleration of such debt; (vi) the commencement of any foreclosure or
forfeiture proceeding, execution or attachment against any collateral securing the obligations of
any Obligor to the Bank; (vii) the entry of a final judgment against any Obligor and the failure of
such Obligor to discharge the judgment within ten (10) days of the entry thereof; (viii) any
material adverse change in any Obligor’s business, assets, operations, financial condition or
results of operations; (ix) any Obligor ceases doing business as a going concern; (x) any
representation or warranty made by any Obligor to the Bank in any Loan Document or any other
documents now or in the future evidencing or securing the obligations of any Obligor to the Bank,
is false, erroneous or misleading in any material respect; (xi) if this Note or any guarantee
executed by any Obligor is secured, the failure of any Obligor to provide the Bank with additional
collateral if in the Bank’s opinion at any time or times, the market value of any of the collateral
securing this Note or any guarantee has depreciated below that required pursuant to the Loan
Documents or, if no specific value is so required, then in an amount deemed material by the Bank;
(xii) the revocation or attempted revocation, in whole or in part, of any guarantee by any Obligor;
or (xiii) the death, incarceration, indictment or legal incompetency of any individual Obligor or,
if any Obligor is a partnership or limited liability company, the death, incarceration, indictment
or legal incompetency of any individual general partner or member. As used herein, the term
“Obligor” means any Borrower and any guarantor of, or any pledgor, mortgagor or other person or
entity providing collateral support for, the Borrower’s obligations to the Bank existing on the
date of this Note or arising in the future.
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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 Bank’s
option and without demand or notice of any kind, may be accelerated and become immediately due and
payable; (d) at the Bank’s option, 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 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. 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.
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. Notwithstanding the attorney’s commission
provided for in the preceding paragraph (which is included in the warrant for purposes of
establishing a sum certain), the amount of attorneys’ fees that the Bank may recover from the
Borrower shall not exceed the actual attorneys’ fees incurred by the Bank.
10. Right of Setoff. In addition to all liens upon and rights of setoff against the
Borrower’s money, securities or other property 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 grants the Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank, all of the Borrower’s right, title and interest in and to, all
of the Borrower’s deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., 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. 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. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if
any, who controls, is controlled by or is under common control with the Bank, and each of their
respective directors, officers and employees (the “Indemnified Parties”), and to hold each
Indemnified Party harmless from and against any and all claims, damages, losses, liabilities and
expenses (including all fees and charges of internal or external counsel with whom any Indemnified
Party may consult and all expenses of litigation and preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party by any person, entity or
governmental authority (including any person or entity claiming derivatively on behalf of the
Borrower), in connection with or arising out of or relating to the matters referred to in this Note
or in the other Loan Documents or the use of any advance hereunder, whether (a) arising from or
incurred in connection with any breach of a
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representation, warranty or covenant by the Borrower,
or (b) arising out of or resulting from any suit, action, claim, proceeding or governmental
investigation, pending or threatened, whether based on statute, regulation or order, or tort, or
contract or otherwise, before any court or governmental authority; provided,
however, that the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party’s gross negligence or
willful misconduct. The indemnity agreement contained in this Section shall survive the
termination of this Note, payment of any advance hereunder and the assignment of any rights
hereunder. The Borrower may participate at its expense in the defense of any such action or claim.
12. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing (except as may be
agreed otherwise above with respect to borrowing requests) and will be effective upon receipt.
Notices may be given in any manner to which the parties may separately agree, including electronic
mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial
courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the
manner in which provided, Notices may be sent to a party’s address as set forth above or to such
other address as any party may give to the other for such purpose in accordance with this
paragraph. No delay or omission on the Bank’s part to exercise any right or power arising
hereunder will impair any such right or power or be considered a waiver of any such right or power,
nor will the Bank’s action or inaction impair any such right or power. The Bank’s rights and
remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank
may have under other agreements, at law or in equity. No modification, amendment or waiver of, or
consent to any departure by the Borrower from, any provision of this Note will be effective unless
made in a writing signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. 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. If any provision of this Note is found to be invalid, illegal
or unenforceable in any respect 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; provided, however, that the Borrower may not assign this Note in whole or
in part without the Bank’s written consent and the Bank at any time may assign this Note in whole
or in part.
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 located. This Note will be interpreted and the
rights and liabilities of the Bank and the Borrower determined in accordance with the laws of the
State where the Bank’s office indicated above is located, excluding its conflict of laws
rules. The Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or
federal court in the county or judicial district where the Bank’s office indicated above is
located; 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.
13. Amendment and Restatement. This Note amends and restates, and is in substitution for,
that certain Committed Line of Credit Note in the original principal amount of $10,000,000.00
payable to the order of the Bank and dated June 25, 2007 (the “Existing Note”). However, without
duplication, this Note shall in no way extinguish, cancel or
satisfy Borrower’s unconditional
obligation to repay all indebtedness evidenced by the Existing Note or constitute a novation of the
Existing Note. Nothing herein is intended to extinguish, cancel or
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impair the lien priority or
effect of any security agreement, pledge agreement or mortgage with respect to any Obligor’s
obligations hereunder and under any other document relating hereto.
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14. 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 confession of judgment and 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.
| WITNESS / ATTEST: | XXXXX FAMILY LIMITED PARTNERSHIP | |||||||||||
| By: | ||||||||||||
| Xxxxxx X. Xxxxx | (SEAL) | |||||||||||
Print Name:
|
General Partner | |||||||||||
Title: |
||||||||||||
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Disclosure for Confession of Judgment
Undersigned:
|
Xxxxx Family Limited Partnership | |
| 0000 Xxxxx Xxxx | ||
| Erie, PA 16506 | ||
Lender:
|
PNC Bank, National Association | |
| 000 Xxxxx Xxxxxx | ||
| Erie, PA 16501 |
The undersigned has executed, and/or is executing, on or about the date hereof, an Amended and
Restated Committed Non-Revolving Line of Credit Note in the principal amount of $20,000,000.00,
under which the undersigned is obligated to repay monies to Lender.
A. The undersigned acknowledges and agrees that the above documents contain provisions
under which Xxxxxx may enter judgment by confession against the undersigned. Being fully aware of
its rights to prior notice and a hearing on the validity of any judgment or other claims that may
be asserted against it by Lender thereunder before judgment is entered, the undersigned hereby
freely, knowingly and intelligently waives these rights and expressly agrees and consents to
Xxxxxx’s entering judgment against it by confession pursuant to the terms thereof.
B. The undersigned also acknowledges and agrees that the above documents contain
provisions under which Xxxxxx may, after entry of judgment and without either notice or a hearing,
foreclose upon, attach, levy, take possession of or otherwise seize property of the undersigned in
full or partial payment of the judgment. Being fully aware of its rights after judgment is entered
(including the right to move to open or strike the judgment), the undersigned hereby freely,
knowingly and intelligently waives its rights to notice and a hearing and expressly agrees and
consents to Xxxxxx’s taking such actions as may be permitted under applicable state and federal law
without prior notice to the undersigned.
C. The undersigned certifies that a representative of Xxxxxx specifically called the
confession of judgment provisions in the above documents to the attention of the undersigned,
and/or that the undersigned was represented by legal counsel in connection with the above
documents.
D. The undersigned hereby certifies: that its annual income exceeds $10,000; that all
references to “the undersigned” above refer to all persons and entities signing below; and that the
undersigned received a copy hereof at the time of signing.
| Dated: November 19, 2008 | XXXXX FAMILY LIMITED PARTNERSHIP | |||||||
| By: | ||||||||
| Xxxxxx X. Xxxxx | (SEAL) | |||||||
| General Partner | ||||||||
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