Exhibit 10.11
Amended and Restated Demand Note
PNC BANK
$ 36,000,000.00 April 14, 1999
FOR VALUE RECEIVED, ASSOCIATED INVESTMENTS, INC., a Delaware corporation
(the "Borrower"), with an address at 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, promises to pay ON DEMAND to the order of PNC
BANK, NATIONAL ASSOCIATION (the "Bank"), in lawful money of the United
States of America in immediately available funds 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 principal sum of
THIRTY-SIX MILLION AND 00/100 DOLLARS $36,000,000.00) the ("Facility"),
together with interest accruing on the outstanding principal balance from
the date hereof, as provided below:
1. RATE OF INTEREST. Amounts outstanding under this Note will bear
interest at a rate per annum which is at all times equal to the Federal
Funds Rate plus seventy (70) basis points (.70%). "Federal Funds Rate"
shall mean, for any day, (i) the interest rate per annum (rounded upward,
if necessary, to the nearest 1/100 of 1%) determined by the Bank (such
determination to be conclusive absent manifest error) to be equal to the
weighted average of rates on federal funds transactions among members of
the Federal Reserve System arranged by Federal funds brokers at or about
9:00 a.m. (Philadelphia, Pennsylvania time) on such day; provided however,
that if such day is not a business day, the Federal Funds Rate for such day
shall be such rate for such transactions on the immediately preceding
business day, or (ii) if no such rates shall be quoted by Federal funds
brokers at such time, such other rate (not to exceed one-half of one
percentage point below the Prime Rate, as defined below) as determined by
the Bank in accordance with its usual procedures (such determination to be
conclusive absent manifest error). If and when the Federal Funds 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.
Interest will be calculated on the basis of a year of 360 days for the
actual number of days in each interest period. In no event will the rate of
interest hereunder exceed the maximum rate allowed by law.
2. PAYMENT TERMS. The outstanding principal balance and accrued but unpaid
interest shall be due and payable ON DEMAND; provided, however, that Bank
shall provide the Borrower four (4) business days prior written notice of
demand, except in the event of (i) commencement of a bankruptcy, insolvency
or similar proceeding by or against Borrower or against The Associated
Group, Inc. (Borrower's parent), or (ii) acceleration of any other
indebtedness for borrowed money of Xxxxxxxx, in which event no such notice
is required and Bank may make immediate demand for repayment hereunder.
Accrued interest will be due and payable in the absence of demand on the
last day of each fiscal quarter. THE BORROWER ACKNOWLEDGES AND AGREES THAT
THE BANK MAY AT ANY TIME AND IN ITS SOLE DISCRETION DEMAND PAYMENT OF ALL
AMOUNTS OUTSTANDING UNDER THIS NOTE SUBJECT TO THE PRIOR NOTIFICATION
PROVISIONS SET FORTH IN THE FIRST SENTENCE OF THIS PARAGRAPH.
Any payment of principal or interest under this Note must be received by
the Bank by 2:00 p.m. prevailing Eastern Time on a business day in order to
be credited on such date. If any payment under this Note shall become due
on a Saturday, Sunday or public holiday under the laws of the Commonwealth
of Pennsylvania, 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. Payments received will be applied to charges, fees and expenses
(including reasonable attorneys' fees), accrued interest and principal in
any order the Bank may choose, in its sole discretion.
3. DEFAULT RATE. From and after four (4) business days following written
notice of demand, this Note shall bear interest at a rate per annum (based
on a year of 360 days and actual days elapsed) equal to two (2) percentage
points above the Prime Rate but not more than the maximum rate allowed by
law (the "Default Rate"). 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 determined from time to time by the Bank as a means of
pricing some loans to its borrowers. The Prime Rate is not tied to any
external rate of interest 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. The Default Rate
shall continue to apply whether or not judgment shall be entered on this
Note.
4. PREPAYMENT. The indebtedness evidenced by this Note may be prepaid in
whole or in part at any time without penalty.
5. OTHER LOAN DOCUMENTS. This Note is issued in connection with that
certain Xxxxxxx and Restated Pledge Agreement executed by the Borrower in
favor of the Bank, dated as of November 15, 1996, and the other documents
referred to therein, the terms of which are incorporated herein by
reference (as such documents may be amended, modified, renewed or restated
from time to time, the "Loan Documents"), and is secured by the property
described in the Loan Documents.
6. 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, (a) all IRA, Xxxxx, and trust
accounts, and (b) any of Borrower's custody accounts with PNC Bank,
Delaware (other than the custody account containing the collateral pledged
to the Bank as security for this Note). 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
hereunder without any action of the Bank, although the Bank may enter such
setoff on its books and records at a later time.
7. 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. 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. 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 Commonwealth of Pennsylvania. THIS NOTE WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE BORROWER
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
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
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.
8. AMENDMENT AND RESTATEMENT. This Note amends and restates, and is in
substitution for, that certain Amended and Restated Demand Note in the
principal amount of $34,000,000.00, payable to the order of the Bank and
dated February 16, 1999 (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 impair the lien priority or
effect of any security agreement, pledge agreement or mortgage with respect
to the Borrower's obligations hereunder and under any other document
relating hereto.
9. 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] ASSOCIATED INVESTMENTS, INC.
Attest:__________________________ By:________________________________
Print Name:______________________ Print Name:________________________
Title:___________________________ Title:_____________________________
