DEMAND NOTE
____________
U.S. $ 16,500,000.00 Date: ___________, 199_
FOR VALUE RECEIVED, Xxxxxx X. XxXxxxxxx (the "Borrower")
promises 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.
$16,500,000.00 or (ii) the then-outstanding principal amount of
each loan (the "Loan" or "Loans") made by the Bank from time to the
Borrower hereunder. The Borrower shall pay interest on the unpaid
principal amount of each 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 Prime 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 (collectively, "Eurodollar Loans"), the Nassau (Bahamas)
office of the Bank or such other office as the Bank may designate.
Interest based on the Prime 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 1.000% (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 date 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
and six months after such date; provided, that if an 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 Borrower at least five business
days prior the end of an Interest Period the Borrower 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
Borrower of the rate of interest so determined shall be binding and
conclusive upon the Borrower in the absence of manifest error.
Each Domestic Loan shall bear interest payable on the last of
each month at a rate per annum for each day equal to the rate of
interest publicly announced by the Bank in New York City from time
to time as its Prime Rate (the "Prime Rate") for such day, plus
0.000%.
The Borrower 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 Prime Rate.
If after the date of this Note any applicable rule, executive
order, decree, regulation or interpretation is amended, modified,
enacted or promulgated by any government or governmental authority
so as to (i) change 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)
impose, modify or deem 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) impose 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 or
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 Borrower 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
Borrower. Upon receipt of such notice, the Borrower shall prepay
in full the then outstanding principal amount of each Eurodollar
Loan, together with accrued interest thereon, either (a) on 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 Borrower's option on
a date other than the last day of an Interest Period. If, however,
the Borrower makes any payment of principal of any Eurodollar Loan
on any day other than the last day of the Interest Period
applicable thereto, the Borrower 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 Borrower 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 Borrower hereby waives 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
Borrower 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 and
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 Borrower agrees
to pay all costs and expenses of collection, including reasonable
attorney's fees.
To secure payment of this Note, the Borrower hereby transfers,
pledges, gives a security interest in and delivers to the Bank all
present and future contents of the Borrower's assets held in
Custody Account C89394 at 50% margin, all proceeds and products
thereof, accessions thereto and substitutions therefor (the
"Collateral").
Upon the nonpayment of any amount when due hereunder, the
holder shall have the rights and remedies provided in the Uniform
Commercial Code in force in New York at the date of execution of
this Note and in addition to, in substitution for, in modification
of, or in conjunction with those rights and remedies, the holder or
its agents may, in its discretion, sell, assign and deliver all or
any part of the Collateral at any broker's board or at public or
private sale without notice or advertisement, and bid and become
purchasers at any public sale or at any broker's board, and, if
notice to the Borrower is required by law, give written notice to
the Borrower five days prior to the date of public sale of the
Collateral or prior to the date after which private sale of the
Collateral will be made by mailing such notice to the address
designated by the Borrower with the Borrower's signature below.
The Borrower agrees that the proceeds of the disposition of the
Collateral may be applied by the holder to the satisfaction of the
liabilities of the Borrower to the holder in any order of
preference which the holder, in its sole discretion, chooses, and
that the excess, if any, shall be returned to the Borrower, which
shall continue liable to the holder for any deficiency remaining
with interest thereon. The waiver of remedying of any default
shall not operate as a waiver of the default remedies or any other
prior or subsequent default.
The undersigned, if more than one, shall be jointly and
severally liable hereunder and the term "Borrower" shall mean the
undersigned or any one or more of them and their heirs, executors,
administrators, successors and assigns.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS
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
BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH THE BORROWER 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 AN INCONVENIENT FORUM. THE BORROWER
HEREBY IRREVOCABLY WAIVES 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.
Signature:
XXXXXX X. XXXXXXXXX
_______________________________
Xxxxxx X. XxXxxxxxx 2/13/97
Address: Post Office Box 18496 Address: ________________
Oklahoma City, OK 73154 ________________
and
c/o Shannon Self, Esquire
Self, Xxxxxxx & Xxxx, Inc.
0000 Xxxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Custodial Agreement relating to Account C89394 omitted.
