DEMAND NOTE
$6,000,000 Pittsburgh, Pennsylvania
January 14, 1997
FOR VALUE RECEIVED, TLM Holdings Corp., a Delaware corporation (the
"Borrower"), with an address at 0000 Xxxx Xxxxx Xxxxxx, Xxxx xx Xxxxxxx,
Xxxxxxxxxxxx 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 the Bank's offices located at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other location as the Bank may
designate from time to time, the principal sum of SIX MILLION U.S. DOLLARS
($6,000,000) (the "Facility") or such lesser amount as may be advanced to or for
the benefit of the Borrower by the Bank pursuant to the Discretionary Line of
Credit Letter Agreement dated as of January 14, 1997 agreed to and accepted by
the Borrower, each whollyowned Subsidiary of the Borrower identified on Schedule
1 thereto, Abbingdon Venture Partners Limited Partnership - II, a Delaware
limited partnership and Abbingdon Venture Partners Limited Partnership - III, a
Delaware limited partnership (as the same may be modified or amended hereafter
from time to time, the "Agreement"), together with interest accruing on the
outstanding principal balance from the date hereof, as provided below.
Capitalized terms used herein and not otherwise defined herein shall have such
meanings as given to them in the Agreement
1. Rate of Interest. Each advance outstanding under this Note will
bear interest at a rate per annum determined pursuant to the Agreement,
provided, however, that in no event will the rate of interest hereunder exceed
the maximum rate allowed by Law
2. Payment Terms. THE BORROWER ACKNOWLEDGES AND AGREES THAT THE BANK
MAY AT ANY TIME AND IN ITS SOLE DISCRETION REQUEST IMMEDIATE PAYMENT OF ALL
AMOUNTS OUTSTANDING UNDER THIS NOTE WITHOUT PRIOR NOTICE TO THE BORROWER. In the
absence of a request by the Bank for immediate payment of all amounts
outstanding under this Note (i) interest on Loans to which the Base Rate Option
applies shall be due and payable in arrears on the first Business Day of each
April, July, October and January after the date hereof; (ii) and interest on
Loans to which a Euro-Rate Option applies shall be due and payable on the last
day of each Euro-Rate Interest Period for those Loans; provided that any
Euro-Rate Interest Period which would otherwise end on a date which is not a
Business Day shall be extended to the next Business Day unless such Business Day
falls in the next calendar month, in which case such Euro-Rate Interest Period
shall end on the next preceding Business Day.
If the time for making any payment under this Note falls 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
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Xxxxxxxx's deposit account at the Bank for any payment. 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.
3. Increased Interest Rate. If any Loans or other amount is not paid
when requested, any principal, interest, fee or other amount payable hereunder
shall bear interest for each day thereafter until paid in full (before and after
judgment) at a rate per annum which shall be equal to two hundred (200) basis
points (2% per annum) above the rate of interest otherwise applicable with
respect to such amount or the Base Rate if no rate of interest is otherwise
applicable (the "Increased Interest Rate,").
4. Repayment, Additional Borrowings. The Borrower may request Loans,
repay Loans and request additional Loans subject to the discretion of the Bank
and the terms and conditions of the Agreement and the other Loan Documents.
5. 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 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 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.
6. 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 or any acquiescence therein
nor shall the action or inaction of the Bank impair any right or power
hereunder. 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 endorsers of this Note hereby forever
waiver presentment, protest, notice of dishonor and notice of non-payment.
This Note shall bind the Borrower and its successors and assigns, and the
benefits hereof shall inure to the benefit of Bank and its successors and
assigns, provided, however, that the Borrower may not assign or transfer any of
its rights and obligations hereunder or any interest herein.
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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 PARTIES HERETO 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 located in the county or judicial district where the
Bank's of 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 nation. The Bank and the Borrower
agree 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.
7. 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, THE LOAN DOCUMENTS, OR ANY OTHER
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] TLM Holdings Corp.
By: /s/ Xxxxxxx X. Xxxx
_________________________
Name: Xxxxxxx X. Xxxx
Title: Chairman and CEO
Address for Notices:
0000 Xxxx Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
