PROMISSORY NOTE
Chicago, Illinois
$1,200,000.00 March __, 1997
FOR VALUE RECEIVED, the undersigned, FAMCO II LIMITED LIABILITY COMPANY, a
Delaware limited liability company (the "BORROWER"), promises to pay to the
order of _______________________ (the "Bank") at its office at
_____________________________ _________________ the principal sum of One
Million Two Hundred Thousand and no/100 Dollars ($1,200,000.00) on March 31,
1998. The Borrower further promises to pay interest at such office on the
balance of principal remaining from time to time unpaid hereon at the rates
and times set forth in this Note.
SECTION 1. APPOINTMENT OF FISCAL AGENT.
The Borrower hereby irrevocably appoints Family Financial Strategies, Inc.
("FFS") as his/her fiscal agent for the purpose of receiving all notices
hereunder and selecting interest rates and interest options available to the
Borrower hereunder. The Bank is hereby authorized and directed to follow all
instructions of FFS with respect to all matters concerning this Note and to
give to FFS all notices hereunder or with respect to the Collateral, all of
which shall be binding upon the Borrower. The Borrower hereby indemnifies
the Bank from any liability or loss ensuing from the Bank's reliance upon
such instructions and notices. The Borrower acknowledges that FFS serves in
a similar role of fiscal agent for other participating family members under a
Bank mortgage loan program, and that the interest rate alternatives available
under this Note shall be exercised on behalf of the Borrower by FFS on a
common and uniform basis for all or substantially all borrowers participating
under this program.
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES.
SECTION 2.1. INTEREST RATE OPTIONS. (a) Subject to all of the terms and
conditions of this Section 2, portions of the principal indebtedness evidenced
by this Note (all of the indebtedness evidenced by this Note bearing interest at
the same rate for the same period of time being hereinafter referred to as a
"PORTION") may, at the option of FFS acting on behalf of the Borrower, bear
interest with reference to the Domestic Rate (the "DOMESTIC RATE PORTION") or
with reference to the Adjusted LIBOR Rate ("LIBOR PORTIONS"), and Portions may
be converted from time to time from one basis to another. The interest rate
applicable to this Note will never be greater than 25% (the "MAXIMUM RATE").
All of the indebtedness evidenced by this Note which is not part of a LIBOR
Portion shall constitute a single Domestic Rate Portion, and all of the
indebtedness evidenced by the Note which bears interest with reference to a
particular Adjusted LIBOR Rate for a particular Interest Period shall constitute
a single LIBOR Portion. Anything contained herein to the contrary
notwithstanding, there shall not be more than one LIBOR Portion applicable to
this Note outstanding at any one time. The Borrower promises to pay interest on
each Portion at the rates and times specified in this Section 2.
(b) DOMESTIC RATE PORTION. The Domestic Rate Portion shall bear interest
at the rate per annum determined by subtracting the rate of 1/2 of 1% per
annum from the Domestic Rate, provided that if the Domestic Rate Portion or
any part thereof is not paid when due (whether by lapse of time, acceleration
or otherwise) such Portion shall bear interest, whether before or after
judgment, until payment in full thereof at the rate per annum determined by
adding 2% to the Domestic Rate which would otherwise be applicable thereto
from time to time. Interest on the Domestic Rate Portion shall be payable
monthly in arrears on the last day of each month and at maturity of this Note
and interest after maturity shall be due and payable upon demand.
(c) LIBOR PORTIONS. Each LIBOR Portion shall bear interest for each
Interest Period selected therefor at a rate per annum determined by adding
.70% to the Adjusted LIBOR Rate for such Interest Period, provided that if
any LIBOR Portion is not paid when due (whether by lapse of time,
acceleration or otherwise) such Portion shall bear interest, whether before
or after judgment, until payment in full thereof through the end of the
Interest Period then applicable thereto at the rate per annum determined by
adding 2% to the interest rate which would otherwise be applicable thereto,
and effective at the end of such Interest Period such LIBOR Portion shall
automatically be converted into and added to the Domestic Rate Portion and
shall thereafter bear interest at the interest rate applicable to the
Domestic Rate Portion after default. Interest on each LIBOR Portion shall be
due and payable on the last day of each month and at maturity (whether by
lapse of time, acceleration or otherwise) and interest after maturity shall
be due and payable upon demand. Anything contained herein to the contrary
notwithstanding, the obligation of the Bank to create, continue or effect by
conversion any LIBOR Portion shall be conditioned upon the fact that at the
time no Default or Event of Default shall have occurred and be continuing,
and that the interest rate under this subsection (c) does not exceed the
Maximum Rate. Each LIBOR Portion under this Note and other loans outstanding
under the family program referred to in Section 1 shall be in a minimum
amount of $1,000,000 or such greater amount which is an integral multiple of
$100,000.
SECTION 2.2. COMPUTATION OF INTEREST. All interest on the LIBOR Portions
of this Note shall be computed on the basis of a year of 360 days for the
actual number of days elapsed, and all interest on the Domestic Rate Portion
of this Note shall be computed on the basis of a year of 360 days for the
actual number of days elapsed.
SECTION 2.3. MANNER OF RATE SELECTION. FFS acting on behalf of the
Borrower shall notify the Bank (i) by 10:00 a.m. (Chicago time) at least
three (3) Business Days prior to the date upon which it requests that any
LIBOR Portion be created or that any part of the Domestic Rate Portion be
converted into a LIBOR Portion, and (ii) by 10:00 a.m. (Chicago time) on the
date upon which it requests that any Domestic Rate Portion be created or that
any part of a LIBOR Portion be converted into a Domestic Rate Portion (each
such notice to specify in each instance the amount thereof and the Interest
Period selected therefor). If FFS fails to notify the Bank on or before
10:00 a.m. (Chicago time) on the third Business Day preceding the end of an
interest Period applicable to a LIBOR Portion whether such LIBOR Portion is
to continue as a LIBOR Portion and the new Interest Period selected therefor,
such LIBOR Portion shall automatically be converted into and added to the
Domestic Rate Portion as of and on the last day of such Interest Period. If
any request
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is made to convert a LIBOR Portion into another type of Portion available
hereunder, such conversion shall only be made so as to become effective as of
the last day of the Interest Period applicable thereto. All requests for the
creation, continuance or conversion of Portions under this Note shall be
irrevocable. Such requests may be written or oral and the Bank is hereby
authorized to honor telephonic requests for creations, continuances and
conversions received by it from any person the Bank in good faith believes to
be a person authorized to act on behalf of the Borrower hereunder, the
Borrower hereby indemnifying the Bank from any liability or loss ensuing from
so acting.
SECTION 2.4. CHANGE OF LAW. Notwithstanding any other provisions of this
Note, if at any time the Bank shall determine in good faith that any change
in applicable laws, treaties or regulations or in the interpretation thereof
makes it unlawful for the Bank to create or continue to maintain any LIBOR
Portion, it shall promptly so notify FFS on behalf of the Borrower and the
obligation of the Bank to create, continue or maintain such LIBOR Portion
under this Note shall terminate as of the date of such determination until it
is no longer unlawful for the Bank to create, continue or maintain such LIBOR
Portion. Upon receipt of such notice from the Bank the Borrower shall, if
the continued maintenance of any LIBOR Portion is unlawful, thereupon prepay
the outstanding principal amount of the affected LIBOR Portion, together with
all interest accrued thereon and all other amounts payable to the Bank with
respect thereto under this Agreement; provided, however, that FFS on behalf
of the Borrower may elect to convert the principal amount of the affected
Portion into the Domestic Rate Portion available hereunder, subject to the
terms and conditions of this Note.
SECTION 2.5. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN LIBOR
OR ADJUSTED LIBOR RATE. Notwithstanding any other provision of this Note, if
prior to the commencement of any Interest Period, the Bank shall determine
that deposits in the amount of any LIBOR Portion scheduled to be outstanding
during such Interest Period are not readily available to the Bank in the
relevant market or by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining LIBOR or the
Adjusted LIBOR Rate, then the Bank shall promptly give notice thereof to FFS
on behalf of the Borrower and the obligations of the Bank to create, continue
or effect by conversion any LIBOR Portion, as the case may be, in such amount
and for such Interest Period shall terminate until deposits in such amount
and for the Interest Period selected by FFS on behalf of the Borrower shall
again be readily available in the relevant market and adequate and reasonable
means exist for ascertaining LIBOR or Adjusted LIBOR Rate, as the case may be.
SECTION 2.6. TAXES AND INCREASED COSTS. With respect to any LIBOR
Portion, if the Bank shall determine in good faith that any change in any
applicable law, treaty, regulation or guideline (including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or any new law, treaty, regulation or guideline, or any
interpretation of any of the foregoing by any governmental authority charged
with the administration thereof or any central bank or other fiscal, monetary
or other authority having jurisdiction over the Bank or its lending branch or
the LIBOR Portions contemplated by this Note (whether or not having the force
of law) shall:
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(i) impose, increase, or deem applicable any reserve, special
deposit or similar requirement against assets held by, or deposits in or
for the account of, or loans by, or any other acquisition of funds or
disbursements by, the Bank which is not in any instance already
accounted for in computing the interest rate applicable to such LIBOR
Portion;
(ii) subject the Bank, any LIBOR Portion or this Note to the extent
it evidences such Portion, to any tax (including, without limitation any
United States interest equalization tax or similar tax however named
applicable to the acquisition or holding of debt obligations and any
interest or penalties with respect thereto), duty, charge, stamp tax, fee,
deduction or withholding in respect of any LIBOR Portion or this Note to
the extent it evidences such Portion, except such taxes as may be measured
by the overall net income or gross receipts of the Bank or its lending
branches and imposed by the jurisdiction, or any political subdivision or
taxing authority thereof, in which the Bank's principal executive office or
its lending branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Borrower to the Bank under this Note to the extent it
evidences any LIBOR Portion (other than by a change in taxation of the
overall net income or gross receipts of the Bank); or
(iv) impose on the Bank any penalty with respect to the foregoing or
any other condition regarding its disbursement, any LIBOR Portion or this
Note to the extent it evidences any LIBOR Portion;
and the Bank shall determine that the result of say of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to the
Bank of creating or maintaining any LIBOR Portion hereunder or to reduce the
amount of principal or interest received or receivable by the Bank (without
benefit of, or credit for, any prorations, exemption, credits or other
offsets available under any such laws, treaties, regulations, guidelines or
interpretations thereof), then the Borrower shall pay on demand to the Bank
from time to time as specified by the Bank such additional amounts as the
Bank shall reasonably determine are sufficient to compensate and indemnify it
for such increased cost or reduced amount. If the Bank makes such a claim
for compensation, it shall provide to FFS on behalf of the Borrower a
certificate setting forth the computation of the increased cost or reduced
amount as a result of any event mentioned herein in reasonable detail and
such certificate shall be conclusive if reasonably determined.
SECTION 2.7. FUNDING INDEMNITY. In the event the Bank shall incur any
loss, cost or expense (including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired or contracted to be acquired by the Bank to fund or
maintain any LIBOR Portion or the relending or reinvesting of such deposits
or other funds or amounts paid or prepaid to the Bank) as a result of any
failure by the Borrower to create, borrow, continue or effect by conversion a
LIBOR Portion on the date specified in a notice given pursuant to this Note,
then upon the demand of the Bank, the Borrower shall pay to the Bank such
amount as will reimburse the Bank for such loss, cost or expense. If the
Bank requests such a reimbursement
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it shall provide to FFS on behalf of the Borrower with a certificate setting
forth the computation of the loss, cost or expense giving rise to the request
for reimbursement in reasonable detail and such certificate shall be
conclusive if reasonably determined.
SECTION 2.8. LENDING BRANCH. The Bank may, at its option, elect to make,
fund or maintain Portions of the loan hereunder at such of its branches or
offices as the Bank may from time to time elect.
SECTION 2.9. DISCRETION OF BANK AS TO MANNER OF FUNDING. Notwithstanding
any provision of this Note to the contrary, the Bank shall be entitled to
fund and maintain its funding of all or any part of this Note in any manner
it sees fit, it being understood, however, that for the purposes of this Note
all determinations hereunder shall be made as if the Bank had actually funded
and maintained each LIBOR Portion during each Interest Period applicable
thereto through the purchase of deposits in the relevant market in the amount
of such LIBOR Portion, having a maturity corresponding to such Interest
Period and bearing an interest rate equal to the interest rate applicable to
such LIBOR Portion for such Interest Period.
SECTION 3. NOTATIONS AND REQUESTS.
The loan made against this Note, the status of all amounts evidenced by
this Note as constituting part of the Domestic Rate Portion or a LIBOR
Portion, and the rates of interest and Interest Periods applicable to such
Portions shall be recorded by the Bank on its books and records or, at its
option in any instance, endorsed on a schedule to this Note and the unpaid
principal balance and status, rates and Interest Periods so recorded or
endorsed by the Bank shall be PRIMA FACIE evidence in any court or other
proceeding brought to enforce this Note of the principal amount remaining
unpaid thereon, the status of the loan evidenced thereby and the interest
rates and Interest Periods applicable thereto; provided, however, that the
failure of the Bank to record any of the foregoing shall not limit or
otherwise affect the obligation of the Borrower to repay the principal amount
of this Note together with accrued interest thereon. Prior to any negotiation
of this Note, the Bank shall record on a schedule thereto the status of all
amounts evidenced thereby as constituting part of the Domestic Rate Portion
or LIBOR Portion and the rates of interest and the Interest Periods
applicable thereto.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Bank that this Note does not
nor will the performance or observance by the Borrower of any of the matters
and things herein provided contravene any provision of law or any instrument
or agreement which affects the Borrower or any of its assets. The Borrower
is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stocks (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System) and no part of the
proceeds of the loan evidenced hereby will be used to purchase or carry any
margin stock or extend credit to others for the purpose of purchasing or
carrying any stock.
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SECTION 5. THE COLLATERAL.
This Note shall at all times be secured by first liens on certain
residential real property of the Borrower and on readily marketable
investment securities acceptable to the Bank (the "COLLATERAL") which shall
be pledged to the Bank by either the Borrower or FFS on behalf of the
Borrower pursuant to documentation acceptable to the Bank in form and
substance (the "SECURITY DOCUMENTS"). The Bank shall have the right to call
for additional security satisfactory to it should the value of the marketable
investment securities portion of the Collateral decline or be deemed by the
Bank inadequate or unsatisfactory. The Borrower understands the Bank
determined that the securities to be deposited initially with it by the
Borrower or FFS must consist of readily marketable and freely tradeable
securities acceptable to the Bank in an amount such that the total principal
amount outstanding hereunder shall at no time exceed 50% of the fair market
value thereof (as determined by the Bank) but the Borrower acknowledges and
agrees that the Bank may by notice to FFS on behalf of the Borrower require a
higher collateral coverage or require substitute collateral in the event that
any security deposited with the Bank is no longer satisfactory to it.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES REMEDIES.
SECTION 6.1. DEFINITION. Any one or more of the following shall
constitute an Event of Default:
(a) Default in the payment when due of any principal of or interest
on this Note, whether at the stated maturity thereof or at any other time
provided in this Note;
(b) Any representation or warranty made by or on behalf of the
Borrower or other pledgors herein, in the Security Documents or in
connection with the transactions evidenced hereby proves untrue in any
respect;
(c) Default in the observance or performance of any other covenant,
condition, agreement or provision hereof or of the Security Documents;
(d) Failure of the Borrower to provide additional or substitute
collateral within three Business Days of demand of the Bank;
(e) Any judgment or judgments, writ or writs, or warrant or warrants
of attachment, or any similar process or processes which is not covered in
its entirety by insurance and which is in an aggregate amount in excess of
$10,000,000.00 shall be entered or filed against the Borrower or against
any of his/her property or assets and remain unstayed and undischarged for
a period of 30 days from the date of its entry;
(f) Any warranty of attachment, garnishment or any lien, levy or
similar process is filed on or with respect to any of the Collateral;
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(g) The Borrower shall (i) have entered involuntarily against him/her
an order for relief under the Bankruptcy Reform Act of 1978, as amended,
(ii) admit in writing his/her inability to pay, or not pay, his/her
debts generally as they become due or suspend payment of its
obligations, (iii) make an assignment for the benefit of creditors,
(iv) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, conservator, liquidator or similar
official for him/her or any substantial part of his/her property,
(v) file a petition seeking relief or institute any proceeding seeking
to have entered against him/her an order for relief under the Bankruptcy
Reform Act of 1978, as amended, to adjudicate him/her insolvent, or
seeking dissolution, winding up, liquidation, reorganization,
arrangement, marshalling of assets, adjustment or composition of debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying
the material allegations of any such proceeding filed against him/her,
or (vi) fail to contest in good faith any appointment or proceeding
described in Section 6.1(h) hereof;
(h) A custodian, receiver, trustee, conservator, liquidator or
similar official shall be appointed for the Borrower or any substantial
part of his/her property, or a proceeding described in Section 6.1(g)(v)
shall be instituted against the Borrower and such appointment continues
undischarged or any such proceeding continues undismissed or unstayed for
a period of 30 days; or
(i) Any party providing Collateral for this Note shall die or become
incompetent or any event specified in clauses (g) or (h) of this Section
6.1 shall occur with respect to any such party providing Collateral and in
any such case another party reasonably acceptable to the Bank shall not
have pledged collateral security for this Note which is acceptable to the
Bank in substitution for the Collateral provided by the party as to which
such an event or circumstance has occurred.
SECTION 6.2. REMEDIES FOR NON-BANKRUPTCY DEFAULTS. When any Event of
Default other than an Event of Default described in subsection (g) or (h) of
Section 6.1 has occurred and is continuing, the Bank may, by written notice
to the Borrower: (i) declare the principal of and the accrued interest on
this Note to be forthwith due and payable and thereupon this Note, including
both principal and interest, shall be and become immediately due and payable
without further demand, presentment, protest or notice of any kind and
(ii) proceed to foreclose against or otherwise realize upon any Collateral.
SECTION 6.3. REMEDIES FOR BANKRUPTCY DEFAULTS. When my Event of Default
described in subsection (g) or (h) of Section 6.1 hereof has occurred and is
continuing, this Note shall immediately become due and payable without
presentment, demand, protest or notice of any kind and the Bank may proceed to
foreclose against or otherwise realize upon the Collateral and exercise any
other action, right, power or remedy by applicable law.
SECTION 7. DEFINITIONS.
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As used in this Note, the following terms shall have the following
meanings:
"ADJUSTED LIBOR RATE" shall mean a rate per annum determined pursuant to
the following formula:
Adjusted LIBOR Rate = LIBOR
-----------------------
100%-Reserve Percentage
"RESERVE PERCENTAGE" shall mean, for the purpose of computing the Adjusted
LIBOR Rate, the maximum rate of all reserve requirements (including, without
limitation, any marginal emergency, supplemental or other special reserves)
imposed by the Board of Governors of the Federal Reserve System (or any
successor) under Regulation D on Eurocurrency liabilities (as such term is
defined in Regulation D) for the applicable Interest Period as of the first
day of such interest Period, but subject to any amendments to such reserve
requirement by such Board or its successor, and taking into account any
transitional adjustments thereto becoming effective during such Interest
Period. For purposes of this definition, LIBOR Portions shall be deemed to be
Eurocurrency liabilities as defined in Regulation D without benefit of or
credit for prorations, exemptions or offsets under Regulation D. "LIBOR"
means, for an Interest Period, (a) the LIBOR Index Rate for such Interest
Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be
determined, the arithmetic average of the rates of interest per annum
(rounded upwards, if necessary, to nearest 1/100 of 1%) at which deposits in
U.S. dollars in immediately available funds are offered to the Agent at
11:00 a.m.(London, England time) two (2) Business Days before the beginning
of such Interest Period by three (3) or more major banks in the interbank
eurodollar market selected by the Bank for a period equal to such Interest
Period and in an amount equal or comparable to the principal amount of the
LIBOR Portion scheduled to be made available by the Bank.
"LIBOR INDEX RATE" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of
a percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate Page 3750 as of 11:00 a.m.
(London, England time) on the day two Business Days before the commencement
of such Interest Period.
"TELERATE PAGE 3750" means the display designated as "PAGE 3750" on the
Dow Xxxxx Telerate Service (or such other page as may replace page 3750 on
that service or such other services as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for U.S. Dollar
deposits).
"BUSINESS DAY" means a day on which the Bank is open for business in
Chicago, Illinois other than a Saturday or Sunday and, when used with respect
to LIBOR Portions, a day on which the Bank is also dealing in United States
dollar deposits in London, England and Nassau, Bahamas.
"COLLATERAL" means all of the real and personal property security for this
Note provided to the Bank from time to time whether by the Borrower or others.
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"DEFAULT" means an event which with the passage of time, giving of notice
or both would constitute an Event of Default under this Note.
"DOMESTIC RATE" shall mean a variable interest rate which may change
monthly, and for any calendar month shall be equal to the highest prime rate
as published in the Money Rates section of THE WALL STREET JOURNAL on the
first business day of that calendar month. In the event THE WALL STREET
JOURNAL does not publish a prime rate, the Bank may substitute a comparable,
readily ascertainable index.
"EVENT OF DEFAULT" means any of the events or condition specified as such
in Section 6 hereof.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Portion, the
period commencing on, as the case may be, the creation, continuation or
conversion date with respect to such LIBOR Portion and ending one (1), three
(3) or six (6) months thereafter as selected by the Borrower in its notice
any provided herein; PROVIDED THAT, all of the foregoing provisions relating
to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day, unless in the case of an Interest Period for a
LIBOR Portion the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) no Interest Period may extend beyond the final maturity date of
this Note; and
(iii) the interest rate to be applicable to each Portion for each
Interest Period shall apply from and including the first day of such
Interest Period to but excluding the last day thereof.
For purposes of determining an Interest Period, a month means a period
starting on one day in a calendar month and ending on a numerically
corresponding day in the next calendar month, provided, however, if an
Interest Period begins on the last day of a month or if there is no
numerically corresponding day in the month in which an Interest Period is to
end, then such Interest Period shall end on the last Business Day of such
month.
"SECURITY DOCUMENTS" means collectively any agreements now or hereafter
executed and delivered to the Bank in respect of the Collateral.
SECTION 8. MISCELLANEOUS.
SECTION 8.1. NO WAIVER OF RIGHTS. No delay or failure on the part of the
Bank or on the part of the holder or holders of the Note in the exercise of any
power or right shall operate as a waiver thereof, nor as an acquiescence in any
Default or Event of Default, nor shall any single or partial
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exercise of any power or right preclude any other or further exercise
thereof, or the exercise of any other power or right, and the rights and
remedies hereunder of the Bank and of the holder or holders of the Note are
cumulative to, and not exclusive of, any rights or remedies which any of them
would otherwise have.
SECTION 8.2. HOLIDAYS. (a) If any payment of principal or interest on the
Domestic Rate Portion shall fall due on a day which is not a Business Day, the
payment date thereof shall be extended to the next Business Day and interest at
the rate such Portion bears for the period prior to maturity shall continue to
accrue on such principal from the stated due date thereof to and including the
next succeeding Business Day on which the same is payable.
(b) If my payment of principal or interest on any LIBOR Portion shall fall
due on a day which is not a Business Day, the payment date thereof shall be
extended to the next date which is a Business Day and the Interest Period for
such Portion shall be accordingly extended, unless as a result thereof any
payment date would fall in the next calendar month, in which case such payment
date shall be the next preceding Business Day and the relevant Interest Period
shall be correspondingly abbreviated. In either case, the next Interest Period
shall be measured from the payment date so adjusted.
SECTION 8.3. COSTS AND EXPENSES. The Borrower agrees to pay on demand
all of the reasonable costs and expenses of the Bank in connection with the
negotiation, preparation, execution and delivery of this Note and the other
instruments and documents to be delivered hereunder or in connection with the
transactions contemplated hereby, including the fees and out-of-pocket
expenses of Messrs. Xxxxxxx and Xxxxxx, special counsel to the Bank; all
reasonable costs and expenses of the Bank (including attorneys' fees)
incurred in connection with any consents or waivers hereunder or amendments
hereto which requires any change in the documentation relating to this Note
or any Collateral; and all reasonable costs and expenses (including
attorneys' fees), if any, incurred by the Bank or any other holders of the
Note in connection with the enforcement of this Note and the other
instruments and documents to be delivered hereunder and in connection with
endeavoring to preserve, protect, perfect or realize upon the Collateral.
SECTION 8.4. SURVIVAL OF INDEMNITIES. All indemnities and other
provisions relative to reimbursement to the Bank of amounts sufficient to
protect the yield of the Bank with respect to the indebtedness evidenced by
this Note, including, but not limited to, Sections 2.6 and 2.7 hereof, shall
survive the termination and the payment of this Note.
SECTION 8.5. NOTICES. All communications provided for herein shall be in
writing or by telecopy addressed to the Bank at
___________________________________________ and if to the Borrower, addressed
to the Borrower in care of Family Financial Strategies, Inc., Interchange
Tower, 000 Xxxxx Xxxxxxx 000, Xxxxx 000, Xx. Xxxxx Xxxx, Xxxxxxxxx
00000-0000, Telephone number (000) 000-0000, Facsimile number (000) 000-0000.
Any notice shall be in writing and shall be deemed to have been given or
made when served personally or when received if sent by United States mail
and any notice given by telecopy shall be deemed given when transmitted
(receipt confirmed by the
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sender's transmission equipment) except that rate setting notices to the Bank
shall only be deemed effective upon actual receipt by it.
SECTION 8.6. GOVERNING LAW; WAIVERS; MISCELLANEOUS. This Note shall be
governed and construed in accordance with federal law and the laws of the
State of Illinois without regard to principles of conflicts of laws. The
Borrower hereby waives presentment for payment and demand. This Note cannot
be changed or terminated orally. All of the rights given to the Bank
hereunder shall inure to the benefit of its successors and assigns. If more
than one person signs this Note as Borrower, then the term "Borrower" as used
herein shall mean all of such parties, jointly and severally.
FAMCO II LIMITED LIABILITY COMPANY,
a Delaware limited liability company
By: Family Financial Strategies, Inc.
Its: Manager
By: /s/ Xxxx Xxxxxx
----------------------------------------
Its: Chief Financial Officer
---------------------------------
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