DEMAND NOTE
U.S. $100,000,000 March 3, 1997
FOR VALUE RECEIVED, XXXXXXX XXXXXX and XXXXXX XXXXXX
(collectively, the "Borrowers") promise to pay to the order of
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (the "Bank") ON DEMAND
at its office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
U.S.A., for the account of its Lending office (as hereinafter
defined), in lawful money of the United States of America in same
day funds (or in such funds as may from time to time become
customary for the settlement of international transactions in
U.S. dollars), the lesser of (i) U.S. $100,000,000 or (ii) the
then-outstanding principal amount of each loan (the "Loan" or
"Loans") made by the Bank from time to time to the Borrowers
hereunder. The Borrowers shall pay interest on the unpaid
principal amount of such Loan until maturity on the dates and at
a rate per annum as hereinafter set forth. As used herein,
"Lending Office" means, (i) with regard to Loans bearing interest
based on the Base Rate (as hereinafter defined) (collectively,
"Domestic Loans"), the office of the Bank located at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the Bank may
designate, and (ii) with regard to Loans bearing interest based
on the Eurodollar Rate (as hereinafter defined) (collectively,
"Eurodollar Loans"), the Nassau (Bahamas) office of the Bank or
such other office as the Bank may designate.
Interest based on the Base Rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and paid
for actual days elapsed (including the first day but excluding
the last day). Interest based on the Eurodollar Rate shall be
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed {including the first day but
excluding the last day),
Each Eurodollar Loan shall bear interest at a rate per annum
(the "Eurodollar Rate") equal to the Adjusted Eurodollar Rate (as
hereinafter defined) plus (i) 1 and 3/4% so long as the principal
amount of outstanding Loans hereunder shall be greater than
$50,000,000 and (ii) 1% at all other times {the "Eurodollar
Margin"), payable on the last day of the Interest Period
applicable thereto and, if such Interest Period is longer than
three months, at intervals of three months after the first day
thereof. The "Adjusted Eurodollar Rate" applicable to any
Interest Period (as hereinafter defined) means a rate per annum
equal to the quotient obtained (rounded upwards, if necessary, to
the next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Eurodollar
Reserve Percentage. The "London Interbank Offered Rate"
applicable to any Interest Period means the rate per annum at
which deposits in U.S. dollars are offered to the Bank in the
London interbank market at approximately 11:00 a.m. (London time)
two business days prior to the first day of such Interest Period
in an amount approximately equal to the principal amount of the
Loan to which such Interest Period applies and for the period of
time comparable to such Interest Period. The "Eurodollar Reserve
Percentage" means for any day that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a
member bank of the Federal Reserve System in New York City with
deposits exceeding five billion dollars in respect of
"Eurocurrency liabilities" (or in respect of any other category
of liabilities which includes deposits by reference to which the
interest rate on the Loans is determined or any category of
extensions of credit or other assets which includes loans by a
non-United states office of the Bank to United States residents)
The Adjusted Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurodollar
Reserve Percentage. As used herein, the term "Interest Period"
means the period beginning on the date of each Eurodollar Loan
and ending on the numerically corresponding day in the calendar
month one, three, six, or twelve months after such date:
provided, that if ah Interest Period would otherwise end on a day
which is not a business day it shall be extended to the next
succeeding business day unless such business day falls in the
next calendar month, in which case the Interest Period shall end
on the next preceding business day; provided, further, that if
the Bank shall not have received written notice to the contrary
from the Borrowers at least five business days prior to the end
of an Interest Period the Borrowers shall be deemed to have
requested to select an Interest Period with a duration equal to
that then ending. As used herein, the term "business day" means
any day on which dealings in U.S, dollar deposits are carried on
in the London interbank market and on which commercial banks are
open for domestic and foreign exchange business in London and New
York City. Notice by the Bank to the Borrowers of the rate of
interest so determined shall be binding and conclusive upon the
Borrowers in the absence of manifest error.
Each Domestic Loan shall bear interest payable on the last
day of each month at a rate per annum (the "Base Rate") for each
day equal to the higher of (i) the rate of interest publicly
announced by the Bank in New York City from time to time as its
Prime Rate (the "Prime Rate") and (ii) the sum of l/2 of 1% plus
the Federal Funds Rate (as defined below) for such day. "Federal
Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the business day next succeeding such
day; provided that (i) if such day is not a business day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding business day as so published
on the next succeeding business day, and (ii) if no such rate is
so published on such next succeeding business day, the Federal
Funds Rate for such day shall be the average rate quoted to the
Bank on such day on such transactions as determined by the Bank.
The Borrowers shall pay interest on the unpaid principal
amount of each Loan after the maturity thereof and, to the extent
permitted by law, on accrued and unpaid interest until paid at a
rate per annum equal to the sum of 2% plus the Base Rate.
If after the date of this Note the adoption of, or any
change in, any applicable rule, executive order, decree,
regulation or interpretation is amended, modified, enacted or
promulgated by any government or governmental authority which (i)
changes the basis of taxation of payments to the Bank or the
Lending Office of the Bank extending a Eurodollar Loan (the
"Eurodollar Lending Office") in respect to the principal of and
interest on any Eurodollar Loan (except for changes in the rate
of taxation on the overall net income of the Bank by the United
States of America or the Eurodollar Lending Office of the Bank by
the jurisdiction in which such Lending Office is located), or
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against any of the assets of,
deposits with or for the account of, or credit extended by the
Bank's Eurodollar Lending Office, or (iii) imposes on the Bank
(or its Eurodollar Lending Office) or the London interbank market
any other conditions affecting any Loan, the Loans or this Note,
and the result of any of the foregoing is to increase the cost to
the Bank (or its Eurodollar Lending Office) of agreeing to make
or making, funding or maintaining any Loan evidenced by this Note
or would have the effect of reducing the rate of return on the
capital of the Bank of any entity controlling the Bank (its
"Parent") as a consequence of agreeing to make any Loan, or to
reduce the amount of any sum receivable by the Bank (or its
Eurodollar Lending Office) on this Note, then the Borrowers shall
pay to the Bank or its Parent upon demand such amount as will
compensate the Bank or its Parent for such additional cost or
reduction in return. A certificate of the Bank setting forth the
basis for the determination of any amount necessary to compensate
the Bank or its Parent as aforesaid shall be conclusive as to the
determination of such amount in the absence of manifest error.
If, after the date of this Note, the introduction of, or any
change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof or compliance by the Bank (or its Eurodollar Lending
Office) with any request or directive (whether or not having the
force of law) of any such authority shall make it unlawful or
impossible for the Bank (or its Eurodollar Lending Office) to
make, maintain or fund its Eurodollar Loans, the Bank forthwith
shall so notify the Borrowers. Upon receipt of such notice, the
Borrowers shall prepay in full the then outstanding principal
amount of each Eurodollar Loan, together with accrued interest
thereon, on either (a) the last day of the Interest Period
applicable thereto if the Bank may lawfully continue to maintain
and fund such Loan to such day or (b) immediately if the Bank may
not lawfully continue to fund and maintain such Loan to such day.
Eurodollar Loans may not be repaid at the Borrowers' option
on a date other than the last day of an Interest Period. If,
however, the Borrowers make any payment of principal of any
Eurodollar Loan on any day other than the last day of the
Interest Period applicable thereto, the Borrowers shall reimburse
the Bank on demand for any loss or expense incurred by it as a
result of the timing of such payment, including (without
limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, provided that the Bank
shall have delivered to the Borrowers a certificate as to the
amount of such loss, which certificate shall be conclusive in the
absence of manifest error.
Domestic Loans may be prepaid at any time without penalty or
premium.
The Borrowers hereby waive diligence, presentment, demand,
protest and notice of any kind whatsoever, The non-exercise by
the Bank of its rights hereunder in any particular instance shall
not constitute a waiver of any right in any subsequent instance.
The holder of this Note shall, and is hereby authorized by
the Borrowers to, endorse on the schedule forming a part hereof
appropriate notations evidencing the date and the amount of each
Loan made by the Bank, the date and amount of each payment of
principal, whether such Loan is a Domestic or Eurodollar Loan
and, in the case of Eurodollar Loans, the Eurodollar Rate
applicable thereto.
If this Note is not Paid in full when due the Borrowers
agree to pay all costs and expenses of collection, including
reasonable attorneys' fees.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. The Borrowers hereby
submit to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any
New York State Court sitting in New York City for purposes of all
legal, proceedings arising out of or relating to this Note or any
agreement received by the Bank in connection herewith. The
Borrowers irrevocably waive, to the fullest extent permitted by
law, any objection which the Borrowers may now or hereafter have
to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a
court has been brought in inconvenient forum. The Borrowers
hereby irrevocably waive any and all right to trial by jury in
any legal proceeding arising out of or relating to this Note or
any agreement received by the Bank in connection herewith.
The obligations of the Borrowers hereunder shall be joint
and several.
______________________________
XXXXXXX XXXXXX
______________________________
XXXXXX XXXXXX
LOANS AND PAYMENTS OF PRINCIPAL
Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date* Made By
---- ------ ---- --------- -------- --------
*Subject to Prior Demand