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 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 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 xxxxxxxx0 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 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 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
1/2 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 xxxxxxxx0 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 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 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 toss 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 an 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.
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
XXXXXX XXXXXX
LOANS AND PAYMENT5 OF PRINCIPAL
Amount Type Amount of
of of PrincipalMaturity Notation
Date Loan Loan Repaid Date* Made By
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* Subject to Prior Demand