EXHIBIT 10.2
OVERLINE FACILITY D NOTE
$2,000,000 Pittsburgh, Pennsylvania
December 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
Overline 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 Two Million
and 00/100 Dollars ($2,000,000.00), or (ii) the aggregate unpaid principal
amount of all Overline 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 Overline 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 Overline 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 Overline 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 Overline 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 November 3, 2004, that certain Tenth Amendment to Loan
Agreement, dated December 21, 2004, that certain Eleventh Amendment to Loan
Agreement, dated June 22, 2005, that certain Twelfth Amendment to Loan
Agreement, dated September 30, 2005 and further amended by Thirteenth 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 Overline 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 Overline Facility
D Note which are defined in the Loan Agreement shall have the meanings assigned
to them therein unless otherwise defined in this Overline Facility D Note.
This Overline 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 Overline Facility D Note.
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CONFESSION OF JUDGMENT. EACH BORROWER HEREBY IRREVOCABLY Borrowers
AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR Initials
ANY CLERK OF ANY COURT OF RECORD, TO APPEAR FOR AND CONFESS
JUDGMENT AGAINST SUCH BORROWER, UPON THE OCCURRENCE OF AN ___JCR_____
EVENT OF DEFAULT, FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME _____
DUE UNDER THIS OVERLINE 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 OVERLINE
FACILITY D NOTE, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF
THE HOLDER OF THIS OVERLINE FACILITY D NOTE SHALL HAVE BEEN
FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL OVERLINE 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 OVERLINE
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.
WAIVER OF TRIAL BY JURY. EACH BORROWER EXPRESSLY, KNOWINGLY Borrowers
AND VOLUNTARILY WAIVES ALL BENEFIT AND ADVANTAGE OF ANY Initials
RIGHT TO A TRIAL BY JURY, AND IT WILL NOT AT ANY TIME INSIST
UPON, OR PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE ___JCR_____
BENEFIT OR ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION
ARISING IN CONNECTION WITH THIS OVERLINE FACILITY D NOTE, ___JCR_____
THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
___JCR_____
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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 Overline Facility D Note in Pittsburgh,
Pennsylvania on the day and year written above.
ATTEST: PDG ENVIRONMENTAL, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------------ -------------------------------
Secretary Title: President & CEO
ATTEST: PROJECT DEVELOPMENT GROUP, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------------ -------------------------------
Secretary Title: President & CEO
ATTEST: ENVIRO-TECH ABATEMENT
SERVICES, CO.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------------ -------------------------------
Secretary Title: President & CEO
ATTEST: PDG, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------------ -------------------------------
Secretary Title: President & CEO
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