SECURED PROMISSORY NOTE
(TERM LOAN)
$9,000,000 March 16, 1998
FOR VALUE RECEIVED, the undersigned (hereinafter, collectively,
"Borrower"), hereby jointly and severally promise to pay to the order of FLEET
CAPITAL CORPORATION, a Rhode Island corporation (hereinafter "Lender"), at its
office located at 2711 North Haskell, Suite 2100, LB 21, Dallas, Texas 75204, or
at such other location as Lender may request, in such coin or currency of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, the principal sum of NINE MILLION
AND NO/100 DOLLARS ($9,000,000), together with interest from and after the date
hereof at the per annum rate set forth below.
Subject to Section 2.1.3 of the Loan Agreement (as defined below), the
unpaid principal balance outstanding hereunder shall accrue interest at the per
annum rate (hereinafter referred to as the "Applicable Annual Rate") specified
in Section 2.1.1 of that certain Loan and Security Agreement, dated of even date
herewith, by and among Lender and Borrower (as amended, restated or renewed from
time to time, the "Loan Agreement"), except that (a) such Applicable Annual Rate
may be subject to reduction pursuant to Section 2.1.4 of the Loan Agreement, and
(b) upon and after the occurrence and during the continuance of an Event of
Default, the unpaid principal balance outstanding hereunder, and, to the extent
permitted by applicable law, past due interest hereunder, shall accrue interest
at the Default Rate specified in Section 2.1.2 of the Loan Agreement.
This Secured Promissory Note (this "Note") is the Term Note referred to in,
and is issued pursuant to, the Loan Agreement, and is entitled to all of the
benefits and security of the Loan Agreement. All of the terms, covenants and
conditions of the Loan Agreement and all other instruments evidencing or
securing the indebtedness hereunder (hereinafter collectively referred to as the
"Loan Documents") are hereby made a part of this Note and are deemed
incorporated herein in full. All capitalized terms used herein, unless otherwise
specifically defined in this Note, shall have the meanings ascribed to them in
the Loan Agreement.
The principal amount of and all accrued interest on this Note shall be due
and payable on the dates and in the manner hereinafter set forth:
(a) Interest shall be due and payable monthly, in arrears, on the
first day of each month, commencing on April 1, 1998, and continuing on the
first day of each month thereafter until such time as the full principal
balance, together with all other amounts owing hereunder, shall have been
paid in full;
(b) Principal shall be due and payable in equal monthly installments
on the first day of each month commencing on April 1, 1998, as follows:
Period Monthly Installment Amount
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April 1, 1998 through March 31, 2001 $107,142.86
Borrower (i) shall prepay this Note as provided in Section 3.3 and Section
4.2.1 of the Loan Agreement and (ii) may terminate the Loan Agreement in
accordance with the provisions of Section 4.2 of the Loan Agreement, and in
connection with such termination, shall prepay this Note in the manner provided
in Section 4.2 of the Loan Agreement.
Upon or after the occurrence of an Event of Default, Lender shall have all
of the rights and remedies set forth in Section 10 of the Loan Agreement,
including the right to declare the then outstanding principal balance and
accrued interest hereof to be and the same shall thereupon become, immediately
due and payable without notice to or demand upon Borrower, all of which Borrower
hereby expressly waives.
Notwithstanding anything to the contrary in this Note or otherwise, (i) if
at any time the amount of interest computed on the basis of the Applicable
Annual Rate or a Default Rate would exceed the amount of such interest computed
upon the basis of the maximum rate of interest permitted by applicable state or
federal law in effect from time to time hereafter (the "Maximum Legal Rate"),
the interest payable under this Note shall be computed upon the basis of the
Maximum Legal Rate, but any subsequent reduction in such Applicable Annual Rate
or Default Rate, as applicable, shall not reduce such interest thereafter
payable hereunder below the amount computed on the basis of the Maximum Legal
Rate until the aggregate amount of such interest accrued and payable under this
Note equals the total amount of interest which would have accrued if such
interest had been at all times computed solely on the basis of the Applicable
Annual Rate or Default Rate, as applicable; and (ii) unless preempted by federal
law, the Applicable Annual Rate or Default Rate, as applicable, from time to
time in effect hereunder may not exceed the "weekly ceiling" from time to time
in effect under Chapter 303 of the Texas Finance Code (Vernon's Texas Code
Annotated), as amended from time to time (as amended, the "Texas Finance Code").
If the applicable state or federal law is amended in the future to allow a
greater rate of interest to be charged under this Note than is presently allowed
by applicable state or federal law, then the limitation of interest hereunder
shall be increased to the maximum rate of interest allowed by applicable state
or federal law as amended, which increase shall be effective hereunder on the
effective date of such amendment, and all interest charges owing to Lender by
reason thereof shall be payable at the same date and in the same manner as
accrued interest on this Note is generally payable pursuant to the provisions of
this Note.
No agreements, conditions, provisions or stipulation contained in this
Note, the Loan Agreement or any other instrument, document or agreement between
Borrower and Lender or default of Borrower, or the exercise by Lender of the
right to accelerate the payment of the maturity of principal and interest, or to
exercise any option whatsoever contained in this Note or any other Loan
Document, or the arising of any contingency whatsoever, shall entitle Lender to
contract for, charge, or receive, in any event, interest exceeding the Maximum
Legal Rate. In no event shall Borrower be obligated to pay interest exceeding
such Maximum Legal Rate and all agreements, conditions or stipulations, if any,
which may in any event or contingency whatsoever operate to bind, obligate or
compel Borrower to pay a rate of interest exceeding the Maximum Legal Rate,
shall be without binding force or effect, at law or in equity, to the extent
only of the excess of interest over such Maximum Legal Rate. In the event any
interest is contracted for, charged or received in excess of the Maximum Legal
Rate ("Excess Interest"), Borrower
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acknowledges and stipulate that any such contract, charge, or receipt shall be
the result of an accident and bona fide error, and that any Excess Interest
received by Lender shall be applied, first, to reduce the principal then unpaid
hereunder; second, to reduce the other Obligations; and third, returned to
Borrower, it being the intention of the parties hereto not to enter at any time
into a usurious or otherwise illegal relationship. Borrower recognizes that,
with fluctuations in the Applicable Annual Rate and the Maximum Legal Rate, such
a result could inadvertently occur. By the execution of this Note, Borrower
covenants that (i) the credit or return of any Excess Interest shall constitute
the acceptance by Borrower of such Excess Interest, and (ii) Borrower shall not
seek or pursue any other remedy, legal or equitable, against Lender, based in
whole or in part upon contracting for, charging or receiving of any interest in
excess of the maximum rate authorized by applicable law. For the purpose of
determining whether or not any Excess Interest has been contracted for, charged
or received by Lender, all interest at any time contracted for, charged or
received by Lender in connection with this Note shall be amortized, prorated,
allocated and spread in equal parts during the entire term of this Note.
Time is of the essence of this Note. Unless otherwise provided in the Loan
Agreement, Borrower, for itself and its legal representatives, successors and
assigns, expressly waives, to the fullest extent permitted by Applicable Law,
presentment, demand, protest, notice of dishonor, notice of non-payment, notice
of intent to accelerate, notice of acceleration, notice of maturity, notice of
protest, presentment for the purpose of accelerating maturity, diligence in
collection, and the benefit of any exemption or insolvency laws.
If this Note is collected by or through an attorney at law, Borrower shall
be obligated to pay, in addition to the principal balance and accrued interest
hereof, reasonable attorney's fees and court costs, and any other charges for
which Borrower is responsible under the Loan Agreement and other Loan Documents.
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 shall be prohibited or invalid under Applicable Law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or remaining provisions of this
Note. No delay or failure on the part of Lender in the exercise of any right or
remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by Lender of any right or
remedy preclude any other right or remedy. Lender, at its option, may enforce
its rights against any collateral securing this Note without enforcing its
rights against Borrower, any guarantor of the indebtedness evidenced hereby or
any other property or indebtedness due or to become due to Borrower. Borrower
agrees that, without releasing or impairing Borrower's liability hereunder,
Lender may at any time release, surrender, substitute or exchange any collateral
securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of Texas.
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IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed and
delivered in Dallas, Texas, on the date first above written.
BORROWER:
BLACK WARRIOR WIRELINE CORP.,
a Delaware corporation
By:_____________________________
Name:___________________________
Title: Chief Executive Officer
BOONE WIRELINE CO., INC.,
an Alabama corporation
By: __________________________
Name:___________________________
Title: Chief Executive Officer