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EXHIBIT 7.3
REVOLVING NOTE
$6,951,736.00 Chicago, Illinois
July 1, 1998
FOR VALUE RECEIVED, the undersigned ("Borrower"), promises to pay to
the order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO ("Bank"), at
its principal place of business in Chicago, Illinois or such other place as Bank
may from time to time designate in writing, the principal sum of Six Million,
Nine Hundred Fifty-one Thousand, Seven Hundred Thirty-Six Dollars
($6,951,736.00), or such lesser principal sum as may then be owed by Xxxxxxxx
hereunder on or before 2001 (the "Loan Maturity"). Except as hereinafter
provided, Borrower's obligations and liabilities to Bank under this Note
("Borrower's Liabilities") outstanding from time to time shall bear interest
from the date hereof until paid at a daily rate equal to the daily rate
equivalent (a) of two and one-half percent (2-1/2%) per annum in excess of
"Libor" (hereinafter defined) in the event such Borrower's Liabilities
constitute "Eurodollar Loans" (hereinafter defined) or (b) equal to the "Base
Rate" (hereinafter defined) in effect from time to time on Borrower's
Liabilities which constitute "Base Rate Loans" (as hereinafter defined), in each
case computed on the basis of a 365 day year and charged for actual days
elapsed. Interest and principal shall be payable as set forth below.
As used in this Note, the following terms shall have the following
definitions:
Loan or Loans" shall mean portions of indebtedness created by disbursements
or Loans by Bank hereunder pursuant to or as authorized under the terms of the
"Loan Agreement" (as hereinafter defined).
"Business Day" shall mean a day of the year on which dealings are carried
on in the London interbank market and banks are not required or authorized to
close in Chicago.
"Interest Period or Periods" shall mean, with respect to Eurodollar Loans,
ninety (90) days. All Interest Periods for Eurodollar Loans shall be subject to
the following additional conditions: (i) each selection of an Interest Period
shall be irrevocable for the period so selected; (ii) each Interest Period shall
be selected in such a way that no Interest Period shall extend beyond the due
date of the next scheduled principal payment hereunder or the Loan Maturity; and
(iii) if any Interest Period ends on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding day which is a Business
Day.
"Loan Agreement" shall mean that certain Loan Agreement dated July, 1 1998
by and between Borrower and Bank and all extensions and amendments thereto.
"Libor" for any Interest Period shall mean the rate of interest per annum
at which deposits in United States dollars in an amount approximately equal to
the amount of the Eurodollar
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Loan are offered by the principal London office of the Bank to major money
center banks in the London Interbank market at 11:00 a.m. (London time) one (1)
Business Day before the first day of such Interest Period for a period equal to
such Interest Period.
"Base Rate" shall mean the rate per annum announced by the Bank as its
prime commercial rate or equivalent rate of interest. The Base Rate shall
increase or decrease, as the case may be, an amount equal to and effective as of
the date of each change in such prime commercial rate or equivalent rate of
interest. The use of the term Base Rate is not intended nor does it imply that
said rate of interest is a preferred rate of interest or one that its offered by
the Bank to its most creditworthy customers.
"Interest Payment Date" means (i) the last day of each March, June,
September and December commencing on the first of such days to occur after each
Base Rate Loan is made (which dates shall also apply for the payment of any fees
due Bank hereunder) and (ii) on the last day of any Interest Period for any
Eurodollar loan made.
Borrower shall select as the applicable Rate for the payment of
interest on the amount of such Loan a rate based upon Libor or the Base Rate.
Bank must receive notification of such selection by Borrower not later than
11:00 a.m. (Chicago time) at least one (1) Business Day prior to the end of each
Interest Period and if a rate based upon Libor is selected by Borrower, Borrower
must also advise Bank at the time of such selection, of the duration of the
Initial Interest Period applicable to such Loan. Any Loan for which Borrower has
selected a rate based upon the Base Rate as the applicable rate shall be
referred to as a "Base Rate Loan." Any Loan for which Borrower has selected a
rate based upon Libor and an applicable Interest Period shall be referred to as
a "Eurodollar Loan." If Borrower has not so advised Bank of its selection of an
applicable rate and Interest Period as aforesaid (or if Bank shall make a Loan
other than pursuant to a request of Borrower made in accordance with the terms
of the Loan Agreement), Borrower shall be deemed to have selected a rate based
upon the Base Rate as above provided as the applicable rate for such Loan.
Without prior written consent of Bank, the interest rates and Interest
Periods must be selected so that at no time there shall be more than ten (10)
different "Interest Selections" (as such term is hereinafter defined) in effect
at the same time with respect to the principal balance outstanding hereunder.
For the purposes of this Paragraph, an "Interest Selection" shall mean each
single applicable interest rate and the corresponding Interest Period (unless
the rate is the Base Rate in which case no Interest Period is selected) in
effect from time to time pursuant to the provisions of this Note.
If, on or before a date one (1) Business Day before the end of the then
current Interest Period for any Eurodollar Loan, Lender does not receive a
notice of election of a rate based upon Libor and the Interest Period as to such
Eurodollar Loan, Borrower shall be deemed to
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have elected to convert such Loan to a Base Rate Loan at the expiration of the
then current Interest Period.
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 central bank or other governmental authority
charged with the interpretation or administration thereof, or compliance by Bank
with any request or directive (whether or not having the force of law) of any
such authority shall make it unlawful, impossible, or impracticable for Bank, to
make, maintain or fund loans using Libor, Bank shall forthwith give notice
thereof to Borrower. As of the date of receipt of such notice, Borrower shall no
longer have the option to select a rate based upon Libor, as the applicable
interest rate for any Loan, and the applicable rate for all existing Eurodollar
Loans (to the extent it is unlawful or impossible to maintain such existing
Eurodollar Loans at Libor), shall be the rate based upon the Base Rate as above
provided (even though the current Interest Period has not expired).
Notwithstanding anything contained in this Note to the contrary,
Borrower may prepay and reborrow amounts under this Note in such amounts as the
Borrower may request, but not exceeding the following aggregate amounts on or
after each date set forth below:
Maximum Outstanding Principal Balance
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Quarter 1 $6,951,736
Quarter 2 $6,951,736
Quarter 3 $6,951,736
Quarter 4 $6,951,736
Quarter 5 $6,951,736
Quarter 6 $6,951,736
Quarter 7 $6,951,736
Quarter 8 $6,951,736
Quarter 9 $6,951,736
Quarter 10 $6,951,736
Quarter 11 $5,000,000
Quarter 12 $ 0
Borrower shall make a mandatory prepayment of all outstanding principal
in excess of the maximum outstanding principal balance provide for above. All
unpaid principal is due and payable on the Loan Maturity.
Interest on the principal amount of Loans outstanding from time to time
hereunder shall be payable on each Interest Payment Date and at Loan Maturity.
As to the portion of the Loan which constitutes a Base Rate Loan, interest shall
accrue at the rate herein provided based upon the fluctuating Base Rate in
effect from time to time.
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The principal portion of Base Rate Loans may be prepaid in whole or in
part at any time prior to the Loan Maturity without notice, premium or penalty.
The principal portion of Eurodollar Loans may not be prepaid, unless the
Borrower agrees in a prior writing to pay or reimburse Bank for all fees, costs,
penalties or expense incurred in connection with such prepayment.
Borrower warrants and represents to the Bank that Borrower shall use
the proceeds represented by this Note solely for proper business purposes and
consistent with all the terms of the Loan Agreement.
Any deposits or other sums at any time credited by or payable or due
from Bank to Borrower, and/or any monies, cash, cash equivalents, securities,
instruments, certificates of deposit documents or other assets of Borrower in
the possession or control of Bank or its bailee for any purpose may at any time
be reduced to cash and applied by Bank to or setoff by Bank against Borrower's
Liabilities then due and payable hereunder.
This Note evidences indebtedness incurred under, and payment hereof may
be accelerated as provided in the Loan Agreement (as the same may from time to
the time be amended, modified or supplemented), to which Loan Agreement
reference is hereby made for a statement of terms and provisions applicable to
this Note. The occurrence of an Event of Default as described in the Loan
Agreement, including, without limitation, the failure to make any payment
provided for herein and the failure to cure such default prior to any and all
applicable grace or cure periods provided for herein or in the Loan Agreement,
shall constitute a default by Borrower ("Event of Default") under this Note.
Upon an Event of Default, without notice by Bank to or demand by Bank
of Borrower, all of Borrower's Liabilities shall be due and payable forthwith.
The acceptance by Bank of any partial payment made hereunder after the time when
any of Xxxxxxxx's Liabilities becomes due and payable will not establish a
custom, or waive any rights of Bank to endorse prompt payment hereof. Borrower
and every endorser hereof waive presentment, demand and protest and notice of
presentment, protest, default, non-payment, maturity, release, compromise,
settlement, extension or renewal of this Note.
Xxxxxxxx agrees to pay, upon Xxxx's demand therefor, any and all
reasonable out-of-pocket costs, fees and expenses (including reasonable
attorneys fees, costs and expenses) incurred in enforcing any of Bank's rights
hereunder and, to the extent not paid, the same shall become part of Xxxxxxxx's
Liabilities hereunder.
If any provision of this Note or the application thereof to any party
or circumstance is held invalid or unenforceable, the remainder of this Note and
the application of such provision to other parties or circumstances will not be
affected thereby and provisions of this Note shall be severable in any such
instance.
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This Note is submitted by Borrower to Bank at Bank's principal place of
business and shall be deemed to have been made thereat. This Note shall be
governed and controlled by the internal laws of the State of Illinois as to
interpretation, enforcement, validity, construction, effect and in all other
respects without reference to principles of choice of law.
To induce Bank to accept this Note, Xxxxxxxx, irrevocably, agrees that,
subject to Bank's sole and absolute election, all actions and proceedings in any
way, manner or respect, arising out of or from or related to this Note, shall be
litigated in courts having a situs within the City of Chicago, State of
Illinois. Borrower hereby consents and submits to the jurisdiction of any local,
state or federal court located within said city and state.
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Xxxxx X. Xxxxxx
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