Exhibit 2
CREDIT AUTHORIZATION AGREEMENT
NBD Bank (the "Bank"), 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
has approved the credit facilities listed below (collectively, the "Credit
Facilities," and, individually, as designated below) to: XXXX X. XXXXX and
XXXXXXXX XXXXX (the "Borrower"), 00000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000,
subject to the terms and conditions set forth in this agreement.
1.0 Credit Facilities. (Check and complete applicable sections)
1.1 Uncommitted Credit Authorizations. The Bank has approved the
uncommitted credit authorizations listed below (collectively, the "Credit
Authorizations," and, individually, as designated below) subject to the
terms and conditions of this agreement and the Bank's continuing
satisfaction with the Borrower's financial status. Disbursements under the
Credit Authorizations are solely at the Bank's discretion. Any disbursement
on one or more occasions shall not commit the Bank to make any subsequent
disbursements.
[ ] A. Facility A. The Bank has approved an uncommitted
Credit Authorization to the Borrower in the principal sum not
to exceed $300,000.00 in the aggregate at any one time
outstanding ("Facility A."). Credit under Facility A shall be
in the form of disbursements evidenced by credits to the
Borrower's account and shall be repayable as set forth in a
Master Demand Note executed concurrently (referred to in this
agreement both singularly and together with any other
promissory notes referenced in this Section 1 as the "Notes").
The proceeds of Facility A shall be used for the following
purposes: financial investments. Facility A shall expire on
November 30, 1995 unless earlier withdrawn.
[ ] B. Facility B. (Including Letters of Credit). The
Bank has approved an uncommitted Credit Authorization to the
Borrower in the principal sum not to exceed $--------- in the
aggregate at any one time outstanding ("Facility B"). Facility
B shall include the issuance of [commercial/standby] letters of
credit not exceeding $------------- in the aggregate at any one
time outstanding, expiring not later than ----------, 199
[which shall include the time drafts expiring not later than
-------, 199-] (the "Letters of Credit"). (Strike bracketed
words if inapplicable.) Each Letter of Credit shall be in form
acceptable to the Bank and shall bear a fee of ----% per year
of the face amount of each standby Letter of Credit plus an
issuance fee of $--------- upon issuance of each Letter of
Credit. (If no fee is listed, the Letters of Credit shall bear
a fee to be agreed upon by the Bank and the Borrower). Credit
under Facility B shall be in the form of disbursements
evidenced by credits to the Borrower's account and shall be
repayable as set forth in a Master Demand Note executed
concurrently (referred to in this agreement both singularly and
together with any other promissory notes referenced in this
Section 1 as the "Notes") or by issuance of a Letter of Credit
upon completion of an application acceptable to the Bank. The
proceeds of Facility B shall be used for the following
purposes:
---------------------------------------------------------------
------------------------------------ Facility B shall expires
on---------------------, 199- unless earlier withdrawn.
[ ] C. Facility C. (Purchase Money Term Loans). The Bank has
approved an uncommitted credit authorization to the Borrower in
the principal sum not to exceed $--------- in the aggregate at
any one time outstanding (Facility C). Facility C shall be in
the form of loans evidenced by the Borrower's notes on the
Bank's form (referred to in this agreement both singularly and
together with any other promissory notes referenced in this
Section 1 as the "Notes"), the proceeds of which shall be used
to purchase the following equipment ---------------------------
---------------------------------------------------------------
Interest on each loan shall accrue at a rate to be agreed upon
by the Bank and the Borrower at the time the loan is made. The
maturity of each note shall not exceed------- months from the
note date. Notwithstanding the aggregate amount of Facility C
stated above, the original principal amount of each loan shall
not exceed the lessor of ---% of the cost of the equipment
purchased with loan proceeds or $--------------. Facility C
shall expire on ------------------, 199- unless earlier
withdrawn.
[ ] 1.2 Term Loans. The Bank agrees to extend credit to the Borrower
in the form of term loan(s) (whether one or more,the "Term Loans") in
the principal sum(s) of respectively, bearing interest
and payable as set forth in the Term Note(s) executed concurrently
(referred to in this agreement both singularly and together with any
other promissory notes referenced in this Section 1 as the "Notes").
The proceeds of the Term Loans shall be used for the following
purpose:
.
2.0 Conditions Precedent.
2.1 Conditions Precedent to Initial Extension of Credit. Before the
first extension of credit under this agreement, whether by disbursement of
a loan, issuance of a letter of credit, or otherwise, the Borrower shall
deliver to the Bank, in form and substance satisfactory to the Bank:
A. Loan Documents. The Notes; the letter of credit applications
required by Section 1.2; the security agreements, financing statements,
mortgages and other documents required by Section 5.1; the guaranties
required by Section 6.0; the subordination agreements required by Section
7.0; and any other loan documents which the Bank may reasonably require to
give effect to the transactions contemplated by this agreement;
B. Evidence of Due Organization and Good Standing. Evidence
satisfactory to the Bank of the due organization and good standing of the
Borrower and every other business entity that is a party to this agreement
or any other loan document required by this agreement; and
C. Evidence of Authority to Enter into Loan Documents. Evidence
satisfactory to the Bank that (i) each party to this agreement or any other
loan document required by this agreement is authorized to enter into the
transactions contemplated by this agreement and the other loan documents,
and (ii) the person signing on behalf of each such party is authorized to
do so.
2.2 Conditions Precedent to Each Extension of Credit. Before any
extension of credit under this agreement, whether by disbursement of a loan,
issuance of a letter of credit, or otherwise, the following conditions shall
have been satisfied.
A. Representations. The representations contained in Section 10
shall be true on and as of the date of the extension of credit;
B. No Event of Acceleration. No event of acceleration shall have
occurred and be continuing or would result from the extension of credit.
C. Continued Satisfaction. The Bank shall have re- mained
satisfied with the Borrower's managerial and financial status;
D. Additional Approvals, Opinions, and Documents. The Bank shall
have received such other approvals, opinions and documents as it may
reasonably request; and
E. Other Conditions.
.
3.0 Borrowing Base/Annual Pay Down.
3.1 Borrowing Base. (complete if applicable) Notwithstanding any
other provision of this agreement, the aggregate principal amount
outstanding at any one time under (check applicable clauses)
[ ] Facility A
[ ] Facility B
shall not exceed the lessor of the Borrowing Base or $---------,
Borrowing Base Means: (check applicable clauses)
[ ] A. % of the Borrower's trade accounts receivable in which the
Bank has a perfected, first priority, security interest, including
accounts more than 90 days past due from the date of invoice,
accounts subject to offset or defense, government, bonded, affiliate
and foreign accounts from trade debtors of which more than % of
the aggregate amount owing from the trade debtor to the Borrower is
more than days past due, and accounts otherwise unacceptable to
the Bank, plus
[ ] B. Inventory of the Borrower in which the Bank has a perfected,
first priority, security interest, valued at the lower of cost or
market, but not exceeding $ aggregate, as follows:
[ ] (1) % of aggregate inventory; or
[ ] (1) % of raw material inventory; and
[ ] (2) % of work-in-process inventory; and
[ ] (3) % of finished goods inventory; plus
[ ] C. % of the value of the Borrower's
machinery and equipment in which the Bank has a perfected,
first priority, security interest, but not exceeding $
, plus
[ ] D. Additional Borrowing Base provisions are contained in the
attached addendum.
3.2 Annual Pay Down. (complete if applicable) Notwithstanding any
other provision of this agreement, there shall be no debt outstanding under
--------------------------------- for a period of -----------
(facility A. Facility B, etc.)
consecutive months during each fiscal year of the Borrower.
4.0 Fees and Expenses. (complete if applicable)
4.1 Fees. Upon execution of this agreement, the Borrower shall pay
the Bank the following fees, all of which the Borrower acknowledges have
been earned by the Bank $1,000,000 closing fee.
4.2 Out-of Pocket Expenses. In addition to any fee set forth in
Section 4.1 above, the Borrower shall reimburse the Bank for its
out-of-pocket expenses and reasonable attorney's fees (including the fees
of in-house counsel) allocated to the Credit Facilities.
5.0 Security.
5.1 Payment of all amounts owing under the Credit Facilities shall
be secured by the Borrower's grant of a continuing first security interest
and/or real estate mortgage, as the case may be, covering its interest in
the following property and all its additions, substitutions, increments,
proceeds and products, present and future, whether now owned or later
acquired, (the "Collateral"):
(check and complete applicable clauses)
[ ] A. Accounts Receivable. All of the Borrower's accounts, chattel
paper, general intangibles, instruments, and documents (as those
terms are defined in the Uniform Commercial Code), rights to refunds
of taxes paid at any time to any governmental entity, and any letters
of credit and drafts under them given in support of the foregoing,
wherever located. The Borrower shall deliver to the Bank executed
security agreements and financing statements in form and substance
satisfactory to the Bank.
[ ] B. Inventory. All of the Borrower's inventory, wherever
located. The Borrower shall deliver to the Bank executed security
agreements and financing statements in form and substance
satisfactory to the Bank.
[ ] C. Equipment. All of the Borrower's equipment, wherever
located. The Borrower shall deliver to the Bank executed security
agreements and financing statements in form and substance
satisfactory to the Bank.
[ ] D. Real Estate. The real property, including improve-
ments, located at
. The Borrower
shall deliver to the Bank an executed mortgage ALTA mortgage title
insurance policy without exceptions with mortgage survey certified to
the Bank and the title company, and, where applicable, an assignment
of rents, subordinations of leases and assignments of land contracts,
all in form and substance satisfactory to the Bank.
[ ] E.
.
5.2 No forbearance or extension of time granted any subsequent owner
of the Collateral shall release the Borrower from liability.
5.3 Additional Collateral/Setoff. To further secure payment of all
amounts owing under the Credit Facilities and all of the Borrower's other
liabilities to the Bank, the Borrower grants to the Bank a continuing
security interest in: (i) all securities and other property of the Borrower
in the custody, possession or control of the Bank (other than property held
by the Bank solely in a fiduciary capacity), and (ii) all balances of
deposit accounts of the Borrower with the Bank. The Bank shall have the
right at any time to apply its own debt or liability to the Borrower, or to
any other party liable for payment of the Credit Facilities, in whole or
partial payment of the Credit Facilities or other present or future
liabilities, without any requirement of mutual maturity.
5.4 Cross Lien. Any of the Borrower's other property in which the
Bank has a security interest to secure payment of any other debt, whether
absolute, contingent, direct or indirect, including the Borrower's
guaranties of the debts of others, shall also secure payment of and be part
of the Collateral for the Credit facilities.
6.0 Guaranties. (complete if applicable)
Payment of the Borrower's liabilities under the Credit Facilities
shall be guaranteed by
, by execution of the Bank's
form of guaranty agreement. The liability of the guarantors, if more than
one, shall be joint and several.
7.0Subordination. (complete if applicable)
The Credit Facilities shall be supported by the subordination of debt
owing from the Borrower to
, including without limitation debt currently owing
in the amount of $ in manner and by agreement satisfactory to the
Bank.
8.0 Affirmative Covenants. So long as any debt remains outstanding
under the Credit Facilities, the Borrower, and each of its subsidiaries, if
any, shall:
8.1 Insurance. Maintain insurance with financially sound and
reputable insurers covering its properties and business against those
casualties and contingencies and in the types and amounts as shall be in
accordance with sound business and industry practices.
8.2 Existence. Maintain its existence and business operations as
presently in effect in accordance with all applicable laws and regulations,
pay its debts and obligations when due under normal terms, and pay on or
before their due date all taxes, assessments, fees and other governmental
monetary obligations, except as they may be contented in good faith if they
have been property reflected on its books and, at the Bank's request,
adequate funds or security has been pledged to insure payment.
8.3 Financial Records. Maintain proper books and records of
account, in accordance with generally accepted accounting principles where
applicable, and consistent with financial statements previously submitted
to the Bank.
8.4 Notice. Given prompt notice to the Bank of the occurrence of
(i) any event of acceleration, and (ii) any other development, financial or
otherwise, which would affect the Borrower's business, properties or affairs
in a materially adverse manner.
8.5 Collateral Audits. (complete if applicable) Permit the Bank
or its agents to perform
(monthly, annual, etc.)
audits of the Collateral. The Borrower shall compensate the Bank for those
audits in accordance with the Bank's schedule of fees as may be amended from
time to time. Whether or not this section has been completed, the Bank
shall retain the right to inspect the Collateral and business records
related to it at such times and at such intervals as the Bank may reasonably
require.
8.6 Management. (complete if applicable) Maintain
as
.
8.7 Financial Reports. Furnish to the Bank whatever information,
books and records the Bank may reasonably request, including at a minimum:
(Check and complete applicable clauses. If the Borrower has subsidiaries,
all financial statements required will be provided on a consolidated and on
a separate basis.)
[ ] A. Within days after each period, a
balance sheet as of the end of that period and statements of income,
retained earnings, and cash flows from the beginning of that fiscal
year to the end of that period, certified as correct by one of its
authorized agents.
[ ] B. Within days after and as of each of its
fiscal years, as detailed ,
(audit/financial statement)
including a balance sheet and statements of income, retained
earnings, and cash flows
(reviewed/complied/certified)
by an independent certified public accountant of recognized standing.
[ ] C. Within days after and as of the end of each
calendar month, the following lists, each certified as correct by one
of its authorized agents: (check applicable clauses)
[ ] (1) a list of accounts receivable, aged from date of invoice;
[ ] (2) a list of accounts payable, aged from date of recepit;
[ ] (3) a list of inventory, valued at the lower of cost of
market.
[ ] D. Within days after and as of the end of each
calendar year, the signed personal financial state- ments of
.
(Borrower/Guarantor/other)
[ ] E. Within 5 days after filing, a signed copy of the annual tax
return, with exhibits, of .
(Borrower/Guarantor/other)
[ ] F. An Environmental Certificate on the Bank's form on and as of
the date of this agreement, and thereafter as required by the
Environmental Certificate.
[ ] G.
.
9.0 Negative Covenants.
9.1 Definitions. As used in this agreement, the following terms
have the following respective meanings:
A. "Subordinated Debt" means debt subordinated to the Bank in
manner and by agreement satisfactory to the Bank.
B. "Tangible Net Worth" means total assets less intangible assets
and total liabilities. Intangible assets include goodwill, patents,
copyrights, mailing lists, catalogs, trademarks, bond discount and
underwriting expenses, organized expenses, and all other intangibles.
9.2 Unless otherwise noted, the financial requirements set forth in
this section shall be computed in accordance with generally accepted
accounting principles applied on a basis consistent with financial
statements previously submitted by the Borrower to the Bank.
9.3 Without the written consent of the Bank, so long as any debt
remains outstanding under the Credit Facilities, the Borrower shall not:
(where appropriate, covenants shall apply on a consolidated basis - clauses
H-O apply only if completed.)
A. Dividends. Acquire or retire any of its shares of capital stock
or declare or pay dividends or make any other distributions upon any of its
shares of capital stock, except dividends payable in its capital stock, and
dividends payable to "Subchapter S" corporation shareholders, in amounts
sufficient to pay the shareholder(s) income tax obligations related to the
Borrower's taxable income.
B. Sale of Shares. Issue, sell or otherwise dispose of any shares
of its capital stock or other securities, or rights, warrants or options to
purchase or acquire any such shares or securities.
C. Debt. Incur, or permit to remain outstanding, debt for borrowed
money or installment obligations, except debt reflected in the latest
financial statement of the Borrower furnished to the Bank prior to execution
of this agreement and not to be paid with proceeds of borrowings under the
Credit Facilities. For purposes of this covenant, the sale of any accounts
receivable shall be deemed the incurring of debt for borrowed money.
D. Guaranties. Guarantee or otherwise become or remain secondarily
liable on the undertaking of another, except for endorsement of drafts for
deposit and collection in the ordinary course of business.
E. Liens. Create or permit to exist any lien on any of its
property, real or personal, except; existing liens known to the Bank; liens
to the Bank; liens incurred in the ordinary course of business securing
current nondelinquent liabilities for taxes, worker's compensation,
unemployment insurance, social security and pension liabilities; and liens
for taxes being contested in good faith.
F. Advances and Investments. Purchase or acquire any securities
of, or make any loans or advances to, or investments in, any person, firm
or corporation, except obligations of the United States Government, open
market commercial paper rated one of the top two ratings by a rating agency
of recognized standing, or certificates of deposit in insured financial
institutions.
G. Use of Proceeds. Use, or permit any proceeds of the Credit
Facilities to be used, directly or indirectly, for the purpose of
"purchasing or carrying any margin stock" within the meaning of Federal
Reserve Board Regulation U. At the Banks request, the Borrower shall
furnish to the Bank a completed Federal Reserve Board Form U-1.
H. Working Capital. Permit the difference between its current
assets [less all sums owing from stockholders, members or partners, as the
case may be, and from officers, managers and directors] and current
liabilities [plus all sums (other than Subordinated Debt) owing to
stockholders, members or partners, as the case may be, and officers managers
and directors] to be less than $ . (Strike
bracketed words if not applicable).
I. Tangible Net Worth [Plus Subordinated Debt]. Permit its
Tangible Net Worth [plus Subordinated Debt] to be less than $
. (Strike bracketed words if not applicable).
J. Current Ratio. Permit the ratio of its current assets to its
current liabilities to be less than to 1.00.
K. Leverage Ratio. Permit the ratio of its total liabilities to
its Tangible Net Worth [plus Subordinated Debt] to exceed to
1.00. (Strike bracketed words if not applicable).
L. Fixed Assets. Expend for, contract for, lease, rent, or
otherwise acquire fixed assets, if the expense to the Borrower, and all
subsidiaries, if any, shall exceed $ in the aggregate in any
one fiscal year.
M. Leases. Contract for or assume in any manner, lease obligations
if the aggregate of all payments shall exceed $ in any one
fiscal year.
N. Compensation. Pay, or aware compensation of any kind, in any
one fiscal year, to exceeding $
.
O.
.
.
10.0 Representations by Borrower. Each Borrower represents that: (a)
the execution and delivery of this agreement and the Notes and the
performance of the obligations they impose do not violate any law, conflict
with any agreements by which it is bound, or require the consent or approval
of any governmental authority or any third party; (b) this agreement and the
Notes are valid and binding agreements, enforceable according to their
terms; and (c) all balance sheets, income statements, and other financial
statements furnished to the Bank are accurate and fairly reflect the
financial condition of the organizations and persons to which they apply on
their effective dates, including contingent liabilities of every type, which
financial condition has not changed materially and adversely since those
dates. Each Borrower, if other than a natural person, further represents
that: (a) it is duly organized, existing and in good standing under the laws
of the jurisdiction under which it was organized; and (b) the execution and
delivery of this agreement and the Notes and the performance of the
obligations they impose (i) are within its powers; (ii) and have been duly
authorized by all necessary action of its governing body, and (iii) do not
contravene the terms of its articles of incorporation or organization, it
bylaws, or any partnership, operating or other agreements governing its
affairs.
11.0 Acceleration.
11.1 Events of Acceleration. If any of the following events occur,
the Credit Facilities shall terminate and all borrowings under them shall
become due immediately, without notice, at the Bank's option, whether or not
the Bank has made demand.
A. The Borrower or any guarantor of any of the Credit Facilities
("Guarantor") fails to pay when due any amount payable under the Credit
Facilities or under any agreement or instrument evidencing debt to any
creditor.
B. The Borrower or any Guarantor (a) fails to observe or perform
any other term of this agreement or the Notes; (b) makes any materially
incorrect or misleading representation, warranty or certificate to the Bank;
(c) makes any materially incorrect or misleading representation in any
financial statement or other information delivered to the Bank; or (d)
defaults under the terms of any agreement or instrument relating to any debt
for borrowed money (other than borrowings under the Credit Facilities) such
that the creditor declares the debt due before its maturity.
C. There is a default under the terms of any loan agreement,
mortgage, security agreement or any other document executed as part of the
Credit Facilities, or any guaranty of the liabilities under the Credit
Facilities becomes unenforceable in whole or in part, or any Guarantor fails
to promptly perform under its guaranty.
D. A "reportable event" (as defined in the Employee Retirement
Income Security Act of 1974 as amended) occurs that would permit the Pension
Benefit Guaranty Corporation to terminate any employee benefit plan of the
Borrower or any affiliate of the Borrower.
E. The Borrower or any Guarantor becomes insolvent or unable to pay
its debts as they come due.
F. The Borrower or any Guarantor (a) makes an assign- ment for the
benefit of creditors; (b) consents to the appoint- ment of a custodian,
receiver or trustee for it or for a substantial part of its assets; or (c)
commences any proceeding under any bankruptcy, reorganization, liquidation
or similar laws of any jurisdiction.
G. A custodian, receiver or trustee is appointed for the Borrower
or any Guarantor or for a substantial part of its assets without its consent
and not removed within 60 days after the appointment.
H. Proceedings are commenced against the Borrower or any Guarantor
under any bankruptcy, reorganization, liquidation, or similar laws of any
jurisdiction, and those proceedings remain undismissed for 60 days after
commencement; or the Borrower or Guarantor consents to the commencement of
the proceedings.
I. Any judgment is entered against the Borrower or any Guarantor,
or any attachment, levy or garnishment is issued against any property of the
Borrower or any Guarantor.
J. The Borrower or any Guarantor dies.
K. The Borrower or any Guarantor, without the Bank's written
consent, (a) is dissolved, (b) merges or consolidates with any third party,
(c) leases, sells or otherwise conveys a material part of its assets or
business outside the ordinary course of business, (d) leases, purchases, or
otherwise acquires a material part of the assets of any other corporation
or business entity, except in the ordinary course of business, or (e) agrees
to do any of the foregoing (notwithstanding the foregoing, any subsidiary
may merge or consolidate with any other subsidiary, or with the Borrower,
so long as the Borrower is the survivor).
L. The loan-to-value ratio of any pledged securities at any time
exceeds %, and such excess continues for five (5) days after notice from
the Bank to the Borrower.
M. There is a substantial change in the existing or prospective
financial condition of the Borrower or any Guarantor which the Bank in good
faith determines to be materially adverse.
N. The Bank in good faith shall deem itself insecure.
11.2 Remedies. If the amounts owing under the Credit Facilities are
not paid at maturity, whether by demand, acceleration, or otherwise, the
Bank shall have all of the rights and remedies provided by any law or
agreement. Any requirement of reasonable notice shall be met if the Bank
sends the notice to the Borrower at least seven (7) days prior to the date
of sale, disposition or other event giving rise to the required notice. The
Bank is authorized to cause all or any part of the Collateral to be
transferred to or registered in its name or in the name of any other person,
firm or corporation, with or without designation of the capacity of such
nominee. The Borrower shall be liable for any deficiency remaining after
disposition of any Collateral. The Borrower is liable to the Bank for all
reasonable costs and expenses of every kind incurred in the making or
collection of the credit facilities, including, without limitation,
reasonable attorneys' fees and court costs (whether attributable to the
Bank's in-house or outside counsel.) These costs and expenses shall
include, without limitation, any costs or expenses incurred by the Bank in
any bankruptcy, reorganization, insolvency or other similar proceeding.
12.0 Miscellaneous.
12.1 Notice from one party to another relating to this agreement
shall be deemed effective if made in writing (including telecommunications)
and delivered to the recipient's address, telex number or fac number set
forth under its name below by any of the following means: (a) hand delivery,
(b) registered or certified mail, postage prepaid, with return receipt
requested, (c) first class or express mail, postage prepaid, (d) Federal
Express or like overnight courier service, or (e) fax, telex or other wire
transmission with request for assurance of receipt in a manner typical with
respect to communication of that type. Notice made in accordance with this
section shall be deemed delivered upon receipt if delivered by hand or wire
transmission, three (3) business days after mailing if mailed by first
class, registered or certified mail, or one business day after mailing or
deposit with an overnight courier service if delivered by express mail or
overnight courier.
12.2 No delay on the part of the Bank in the exercise of any right
or remedy shall operate as a waiver. No single or partial exercise by the
Bank of any right or remedy shall preclude any other future exercise of it
or the exercise of any other right or remedy. No waiver or indulgence by
the Bank of any default shall be effective unless in writing and signed by
the Bank, nor shall a waiver on one occasion be construed as a bar to or
waiver of that right on any future occasion.
12.3 This agreement, the Notes, and any related loan documents embody
the entire agreement and understanding between the Borrower and the Bank and
supersede all prior agreements and understandings relating to their subject
matter. If any one or more of the obligations of the Borrower under this
agreement or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrower shall not in any way be affected or impaired,
and such validity, illegality or unenforceability in one jurisdiction shall
not affect the validity, legality or enforceability of the obligations of
the Borrower under this agreement or the Notes in any other jurisdiction.
12.4 The Borrower, is more than one, shall be jointly and severally
liable.
12.5 This agreement is delivered in the State of Michigan and
governed by Michigan law. This agreement is binding on the Borrower and its
successors and shall inure to the benefit of the Bank, its successors and
assigns.
12.6 Section headings are for convenience of reference only and shall
not affect the interpretation of this agreement.
13.0 Waiver of Jury Trial. The Bank and the Borrower, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waive any right either of them may have to a
trial by jury in any litigation based upon or arising out of th is agreement
or any related instrument or agreement, or any of the transactions
contemplated by this agreement, or any course of conduct, dealing,
statements (whether oral or written), or actions of either of them. Neither
the Bank nor the Borrower shall seek to consolidate, by counterclaim or
otherwise, any action in which a jury trial has been waived with any other
action in which a jury trial cannot be or has not been waived. These
provisions shall not be deemed to have been modified in any respect or
relinquished by either the Bank or the Borrower except by a written
instrument executed by both of them.
Executed by the parties on November 9, 1995.
"BANK"
NBD BANK
Address for notices: By:
000 Xxxxx Xxxx Xxxxxx Xxxxxx X. Xxxxxxx,
Xxx Xxxxx, XX 00000 Its: Second VP
Fax/Telex No. 000-000-0000
Address for notices: "BORROWER"
00000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
XXXX X. XXXXX
XXXXXXXX XXXXX
