Exhibit 10.9
Credit Authorization Agreement
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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:
DARAKA BROADCASTING, INC. (the "Borrower"),
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(Borrower's Name)
0000 X-00 Xxxx, Xxxxxx, Xxxxxxxx 00000
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(Borrower's Address)
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 designed 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 disbursement.
[X] A. FACILITY A. The Bank has approved an uncommitted Credit
Authorization to the Borrower in the principal sum not to exceed
$275,000.00 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 purpose:
working capital. Facility A shall expire on December 31, 1998
unless earlier withdrawn.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 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 purpose: _____________________________
_____________________________________________________________________.
Facility B shall expire 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 lesser 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 SECURITIZATION. The Rank shall have remained 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 lesser of the Borrowing Base or $________________.
Borrowing Base means: (Check and complete applicable clauses)
[ ] A. _____% of the Borrower's trade accounts receivable in which the
Bank has a perfected, first priority, security interest, excluding
accounts more than 90 days past due from the date of invoice,
accounts subject to offset or defense, government, bonded,
affiliate and foreign accounts, 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 $_________________ in aggregate, as
follows:
[ ] (1) ____________% of aggregate inventory; or
[ ] (1) ____________% of raw material inventory; and
[ ] (2) ____________% of work-in-process inventory; and
[ ] (2) ____________% 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: $100 loan processing 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 or later acquired, (the "Collateral");
(check and complete applicable clauses)
[X] A. ACCOUNTS RECEIVABLE. All of the Borrower's accounts, chattel
paper, general intangibles, instruments, and documents (as those items 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 improvements, located
at 0000 X-00 Xxxx, Xxxxxx, XX; and Xxxxxxx Xxxx, Alpena, MI. The Borrower
shall deliver to the Bank an executed mortgage ALTA mortgage title insurance
policy without exception 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 Xxxxxx X. & Xxxxx X. Xxxxxxx and Xxxx Broadcasting, Inc., by
execution of the Bank's form of guaranty agreement. The liability of the
guarantors, if more than one, shall be joint and several.
7.0 SUBORDINATION. (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 contested 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. Give prompt notice to the bank of the occurance of (i) any
event of accelerations, 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 current managerial
structure.
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
(Monthly/quarterly)
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.
[X] B. Within 120 days after and as of the end of each of its fiscal
years, a detailed financial statement
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(audit/financial statement)
including a balance sheet and statements of income, retained earnings,
and cash flows compiled
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(reviewed/compiled/certified)
by an independent certified public accountant of recognized standing.
[X] C. Within 30 days after and as of the end of each calendar quarter,
the following lists, each certified as correct by one of its authorized
agents: (check applicable clauses)
[X] (1) a list of accounts receivable, aged from date of invoice;
[ ] (2) a list of accounts payable, aged from date of receipt;
[ ] (3) a list of inventory, valued at the lower of cost or market.
[X] D. Within 7 days after and as of the end of each calendar year, the
signed personal financial statement of Xxxxxx X. & Xxxxx X. Xxxxxxx
(Borrower/Guarantor/other)
[X] E. Within 5 days after filing, a signed copy of the annual tax
return, with exhibits, of borrower and guarantors
(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, organization 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 know to the Bank;
liens to the Bank; liens incurred in the ordinary course of business
securing current nondelinquent liabilities for taxes, workers'
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 to 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 award 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
agreement 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, its 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) each
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 Employees 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 become due.
F. The Borrower or any Guarantor (a) makes an assignment for the
benefit of creditors; (b) consents to the appointment 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 is 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 due 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
courts 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 fax 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 on 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, if 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 this 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: February 25, 1998
----------------------
(Date)
"BANK" "BORROWER"
By: _____________________________ By: _____________________________
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx,
Relationship Manager President
ADDRESS FOR NOTICES: ADDRESS FOR NOTICES:
000 X. Xxxxxxxx Xx. 0000 X-00 Xxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Fax/Telex No. (000) 000-0000 Fax/Telex No. ______________________
