EXHIBIT 4.16
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS. IT MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED UNDER CIRCUMSTANCES THAT WOULD RESULT IN A VIOLATION OF
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 OR SUCH OTHER
LAWS.
REVOLVING DEMAND NOTE
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$______________________ Wilmington, Delaware __________________, 1999
FOR VALUE RECEIVED, the undersigned Xxxxxx, Inc. a Delaware corporation
("Maker"), promises to pay to the order of Liuco, Inc., a Delaware corporation
("Payee"), in lawful money of the United States of America, the principal sum of
_________________ and ____________ 100ths Dollars ($ _____), or, if less, the
aggregate outstanding principal amount of the Revolving Loans made by the Lender
to the Company pursuant to this Promissory Note ("Note"). The Maker further
promises to pay interest on the outstanding principal amount of the Revolving
Loans from time to time in accordance with the terms of this Note .
1. Revolving Loans. The Payee agrees to make loans to the Maker (each
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a "Revolving Loan" and collectively the "Revolving Loans") from time to time
upon the request of the Maker, provided that the aggregate principal amount of
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all Revolving Loans outstanding from time to time may not exceed $______.
Requests for revolving Loans shall be made at least three days before the
requested date for advancement of the Revolving Loan and shall specify the
amount of the requested Revolving Loan and the date of the requested Revolving
Loan.
2. Place of Payment. All payments will be made at Xxxxx's address at One
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Great Valley Parkway, Malvern, Pennsylvania or such other place as the holder
hereof may from time to time appoint in writing.
3. Payment. The principal balance of any Revolving Loan and any
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accrued interest thereon shall be due and payable on demand.
4. Prepayment. This Note may be prepaid in part or in full at any time
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without premium penalty upon two days prior notice.
5. Costs of Collection. The Maker will pay on demand all costs of
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collection, legal expenses and reasonable attorneys' fees incurred or paid by
the Payee in collecting or enforcing this Note.
6. Interest. The Revolving Loans shall bear interest on the outstanding
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principal amount thereof from time to time at a rate per annum equal to the
rate of interest in effect for such day as publicly announced from time to
time by Bank of America in San Francisco, California, as its "reference rate."
plus one percent. Any change in the "reference rate" shall take effect at the
opening of business on the day specified in the public announcement of such
change. Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof. Interest shall be calculated on the basis of a year of 365 or 366
days as the case may be and the actual number of days elapsed. Notwithstanding
anything contained herein to the contrary, this Note is hereby expressly
limited so that in no contingency or event whatsoever, whether by acceleration
of maturity of the indebtedness evidenced hereby or otherwise, shall the
amount paid or agreed to be paid to Payee for the use, forbearance or
detention of money exceed the highest lawful rate permissible under applicable
law. If, from any circumstances whatsoever, Payee shall ever receive as
interest hereunder an amount that would exceed the highest lawful rate
applicable to Maker, such amount that would be excessive interest shall be
applied to the reduction of the unpaid principal balance of the indebtedness
evidenced hereby and not to the payment of interest, and if the principal
amount of this Note is paid in full, any remaining excess shall forthwith be
paid to Maker, and in such event, Payee shall not be subject to any penalties
provided by any laws for contracting for, charging, taking, reserving or
receiving interest in excess of the highest lawful rate permissible under
applicable law.
6. Security. This Note is secured by that certain security agreement
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between Maker and Payee (the "Security Document") dated as of even date
herewith.
9. Waiver. Maker and each surety, endorser, guarantor, and other party now
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or hereafter liable for payment of this Note, severally waive demand,
presentment for payment, notice of dishonor, protest, notice of protest,
diligence in collecting or bringing suit against any party liable hereon, and
further agree to any and all extensions, renewals, modifications, partial
payments, substitutions of evidence of indebtedness, and the taking or release
of any collateral with or without notice before or after demand by Payee for
payment hereunder.
10. Costs and Attorneys' Fees. In the event this Note is placed in the
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hands of any attorney for collection or suit is filed hereon or if proceedings
are had in bankruptcy, receivership, reorganization, or other legal or judicial
proceedings for the collection hereof, Maker and any guarantor hereby jointly
and severally agree to pay to Payee all expenses and costs of collection,
including, but not limited to, reasonable attorneys' fees incurred in connection
with any such collection, suit, or proceeding, in addition to the principal and
interest then due.
11. Time of Essence. Time is of the essence with respect to all of Maker's
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obligations and agreements under this Note.
12. Jurisdiction and Venue. THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE
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STATE OF DELAWARE, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THEREOF, AND MAKER
CONSENTS TO JURISDICTION IN THE COURTS LOCATED IN DELAWARE.
13. Notice. Notice to the Maker or Payee shall be given in accordance with
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the notice provisions of the Security Agreement.
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14. Successors and Assigns. All of the covenants, obligations, promises
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and agreements contained in this Note made by Maker shall be binding upon its
successors and assigns; notwithstanding the foregoing, Maker shall not assign
this Note or its performance hereunder without the prior written consent of
Xxxxx.
XXXXXX, INC.
_________________________________
Xxxxx X. Xxx
Chief Financial Officer
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