EXHIBIT 2
PROMISSORY NOTE
Chicago, Illinois
$2,000,000.00 _____________, 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 Two Million and no/100 Dollars ($2,000,000.00) on August
30, 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 Bell 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
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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 Bell 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 (it) 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
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Period applicable to a LIBOR Portion whether such LIBOR Portion is to continue
as a LIBOR Portion and the new Interest Period selected therefore 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 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
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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:
(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 any 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
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or other funds or mounts 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 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 mount of this Note together with seemed 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
11
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 margin stock.
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.
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 entirely by insurance and which is in an aggregate amount in excess of
$10,000,000.00 shall be
12
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;
(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 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 any Event of Default
described in subsection (g) or (h) of Section 6.1 hereof has occurred and is
continuing, this Note shall
13
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 permitted by applicable law.
SECTION 7. DEFINITIONS.
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
▇▇▇▇▇ Telerate Service (or such other page as may replace Page 3750 on that
service or such other service m 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).
14
"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.
"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 conditions 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 as 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.
15
"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 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 any 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 he 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. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, 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.
16
SECTION 8.5. NOTICES. All communications provided for herein shall be in
writing or by telecopy addressed to the Bank at P.O. Box 755, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, telephone number
(312) 3479, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, and if to the Borrower, addressed
to the Borrower in care of Family Financial Strategies, Inc., Interchange Tower,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Telephone number (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile number (▇▇▇) ▇▇▇-▇▇▇▇. 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
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.
This Note is issued in substitution and replacement for and evidences in
part the indebtedness formerly evidenced by that certain note of the undersigned
dated March 31, 1997, payable to the order of the Bank in its face principal
amount of $1,200,000.00.
FAMCO II LIMITED LIABILITY COMPANY,
a Delaware limited liability company
By: Family Financial Strategies, Inc.
Its: Manager
By:
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Its:
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