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EXHIBIT 10.74
THE RIGHTS OF THE HOLDER OF THIS DEMAND NOTE TO RECEIVE PAYMENT ARE SUBJECT AND
SUBORDINATE TO ALL OBLIGATIONS OF THE MAKER OR OBLIGOR TO COMERICA BANK OR ITS
SUCCESSORS OR ASSIGNS (THE "SENIOR LENDER") PURSUANT TO THE TERMS OF A
SUBORDINATION AGREEMENT DATED AS OF FEBRUARY 7, 2001 BY AND AMONG THE SENIOR
LENDER, JPE, INC., A MICHIGAN CORPORATION AND ASC, INC., A MICHIGAN CORPORATION.
SUBORDINATED DEMAND BUSINESS LOAN NOTE
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DUE ON DEMAND
$15,000,000
DATE: FEBRUARY 7, 2001
PROMISE TO PAY. For value received, JPE, INC., a Michigan corporation (the
"Borrower") promises to pay ON DEMAND to ASC, INC., a Michigan corporation (the
"Lender"), or order, at its office located at Xxx Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, the sum of FIFTEEN MILLION DOLLARS ($15,000,000)
("Principal"), plus interest calculated as the sum of Lender's aggregate cost of
borrowing such Principal including, without limitation, (a) Lender's actual cost
or interest incurred with respect to such Principal and (b) any incremental cost
to Lender arising from or caused by such Principal (the "Note Rate"). Such Note
Rate shall apply until demand or maturity, whether by acceleration or otherwise,
and at the rate of 3% per annum above the Note Rate on overdue principal from
the date when due until paid; provided that the Note Rate may be adjusted to any
legal rate including fair market value upon the mutual agreement of the parties.
Notwithstanding the foregoing, Lender and Borrower hereby agree and acknowledge
that the Note Rate shall equal or exceed the applicable federal rate.
The Borrower will pay the Principal and any accrued interest thereon on demand.
Until demand, the Borrower will pay consecutive monthly installments of interest
only commencing March 1, 2001.
LATE FEE. If any payment is not received by the Lender within fifteen days after
its due date, the Lender may assess and the Borrower agrees to pay a late fee
equal to five percent of the past due amount.
DEMAND NOTE. Notwithstanding any provision of this Demand Note or any other
instrument or document, this Demand Note is due and payable on demand, which may
be made by the Lender at any time for any or no reason. Any notices and demands
under or related to this document shall be in writing and delivered to the
intended party at its address stated herein, and if to the Lender, at its main
office if no other address of the Lender is specified herein, by one of the
following means: (a) by hand, (b) by a nationally recognized overnight courier
service, or (c) by certified mail, postage prepaid, with return receipt
requested. Notice shall be deemed given: (a) upon receipt if delivered by hand,
(b) on the Delivery Day after the day of deposit with a nationally recognized
courier service, or (c) on the third Delivery Day after the notice is deposited
in the mail. "Delivery Day" means a day other than a Saturday, a Sunday, or any
other day on which national banking associations are authorized to be closed.
Any party may change its address for purposes of the receipt of notices and
demands by giving notice of such change in the manner provided in this
provision.
SUBORDINATION. Payments of principal on this Demand Note, and the rights of the
holder hereof, are subordinate to Senior Indebtedness (as defined in the
Subordination Agreement), and the rights of the holders thereof, to the extent
specified in the Subordination Agreement.
SECURITY. To secure the payment of this Demand Note and any other present or
future liability of the Borrower, whether several, joint, or joint and several,
the Borrower pledges and grants to the Lender, pursuant to a Subordinated
Security Interest between the Borrower and Lender of even date herewith, a
continuing security interest in the Collateral (as defined in the Subordinated
Security Agreement).
LENDER'S RIGHT TO SETOFF. The Lender shall have the right at any time to apply
its own debt or liability to the Borrower or to any other party liable on this
Demand Note in whole or partial payment of this Demand Note or other present or
future liabilities, without any requirement of mutual maturity.
REPRESENTATIONS BY BORROWER. Each Borrower represents: (a) that the execution
and delivery of this Demand Note and the performance of the obligations it
imposes 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) that this Demand Note is a valid and binding agreement,
enforceable according to its terms; and (c) that all balance sheets, profit and
loss statements, and other financial statements furnished to the Lender 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, other than a natural person,
further represents:
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(a) that it is duly organized, existing and in good standing pursuant to the
laws under which it is organized; and (b) that the execution and delivery of
this Demand Note and the performance of the obligations it imposes (i) are
within its powers and have been duly authorized by all necessary action of its
governing body; and (ii) do not contravene the terms of its articles of
incorporation or organization, its bylaws, or any partnership, operating or
other agreement governing its affairs.
REMEDIES. If this Demand Note is not paid at maturity, whether by demand or
otherwise, the Lender shall have all of the rights and remedies provided by any
law or agreement. Any requirement of reasonable notice shall be met if the
Lender 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
Lender 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 Lender for all
reasonable costs and expenses of every kind incurred in the making or collection
of this Demand Note, including, without limitation, reasonable attorneys' fees
and court costs. These costs and expenses shall include, without limitation, any
costs or expenses incurred by the Lender in any bankruptcy, reorganization,
insolvency or other similar proceeding.
WAIVER. Each endorser and any other party liable on this Demand Note severally
waives demand, presentment, notice of dishonor and protest, and consents to any
extension or postponement of time of its payment without limit as to the number
or period, to any substitution, exchange or release of all or part of the
Collateral, to the addition of any party, and to the release or discharge of, or
suspension of any rights and remedies against, any person who may be liable for
the payment of this Demand Note. No delay on the part of the Lender in the
exercise of any right or remedy shall operate as a waiver. No single or partial
exercise by the Lender 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 Lender of any default shall be effective unless in writing and
signed by the Lender, nor shall a waiver on one occasion be construed as a bar
to or waiver of that right on any future occasion.
MISCELLANEOUS. The Borrower, if more than one, shall be jointly and severally
liable, and the term "Borrower" shall mean any one or more of them. This note
shall be binding on the Borrower and its successors, and shall inure to the
benefit of the Lender, its successors and assigns. Any reference to the Lender
shall include any holder of this Demand Note. This note is delivered in the
State of Michigan and governed by Michigan law. Section headings are for
convenience of reference only and shall not affect the interpretation of this
Demand Note.
INFORMATION SHARING. The Lender may provide, without any limitation whatsoever,
any information or knowledge the Lender may have about the undersigned or any
matter relating to this agreement and any related documents to any of its
subsidiaries or affiliates or their successors, or to any one or more purchasers
or potential purchasers of this agreement or any related documents, and the
undersigned waives any right to privacy the undersigned may have with respect to
such matters. The Borrower agrees that the Lender may at any time sell, assign
or transfer one or more interests or participations in all or any part of its
rights or obligations in this agreement to one or more purchasers whether or not
related to the Lender.
WAIVER OF JURY TRIAL. The Lender and the Borrower knowingly and voluntarily
waive any right either of them have to a trial by jury in any proceeding
(whether sounding in contract or tort) which is in any way connected with this
or any related agreement, or the relationship established under them. This
provision may only be modified in a written instrument executed by the Lender
and the Borrower.
ADDRESS: BORROWER:
00000 Xxxxxxxxx Xxxx JPE, INC.
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title:Chairman & Chief Executive Officer
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