Master Demand Business Loan Note
Due on Demand $2,500,000.00
No. ___________________ Date: June 21, 1999
Promise to Pay. For value received, Alternate Marketing Networks, Inc. (the
"Borrower") promises to pay On Demand to Bank One, Michigan (the "Bank"), or
order, at any office of the Bank in the State of Michigan, the sum of TWO
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00), or such
lesser sum as is indicated on Bank records, plus interest computed on the
basis of the actual number of days elapsed in a year of 360 days at the rate
of:
1/2 % per annum above the rate announced from time to time by the Bank as
its "prime" rate (the "Note Rate"), which rate may not be the lowest rate
charged by the Bank to any of its customers, until maturity, whether by
demand, 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.
Each change in the "prime" rate will immediately change the Note Rate.
In no event shall the interest rate exceed the maximum rate allowed by law;
any interest payment which would for any reason be deemed unlawful under
applicable law shall be applied to principal.
Interest will be computed on the unpaid principal balance from the date of
each borrowing.
The Borrower will pay this sum on demand. Until demand, the Borrower will pay
consecutive monthly installments of interest only commencing July 31, 1999.
Late Fee. If any payment is not received by the Bank within fifteen days
after its due date, the Bank may assess and the Borrower agrees to pay a late
fee equal to the lesser of five percent of the past due amount or $350.00.
Master Demand Note. The Bank has authorized a discretionary credit facility to
the Borrower in a principal amount not to exceed the face amount of this note.
The credit facility is in the form of loans made from time to time by the Bank
to the Borrower at the Bank's sole discretion. This note evidences the
Borrower's obligation to repay those loans. The aggregate principal amount of
debt evidenced by this note shall be the amount reflected from time to time in
the records of the Bank but shall not exceed the face amount of this note.
The Borrower acknowledges and agrees that no provision of this note and no
course of dealing by the Bank shall commit the Bank to make loans to the
Borrower and that notwithstanding any provision of this note or any other
instrument or document, all loans evidenced by this note are due and payable
on demand, which may be made by the Bank at any time, whether or not any event
of acceleration then exists.
Credit Agreement. This note evidences a debt under the terms of a Credit
Authorization Agreement between the Bank and the Borrower dated of even date,
and any amendments.
Security. To secure the payment of this 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 Bank a continuing security interest in the
following described property and all of its additions, substitutions,
increments, proceeds and products, whether now owned or later acquired
("Collateral"):
1. 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);
2. All property or securities declared or acknowledged to constitute security
for any past, present or future liability of the Borrower to the Bank;
3. All balances of deposit accounts of the Borrower with the Bank;
4. The following additional property: Accounts Receivable of Borrower and
Guarantors as defined in the Credit Agreement.
Bank's Right to Setoff. 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 on this
note in whole or partial payment of this note or other present or future
liabilities, without any requirement of mutual maturity.
Representations by ▇▇▇▇▇▇▇▇. Each Borrower represents: (a) that the
execution and delivery of this 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 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 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, other than a natural person, further
represents: (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 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 by laws, or any partnership,
operating or other agreement governing its affairs.
Events of Default/Acceleration. If any of the following events occurs, this
note shall be due immediately without notice at the Bank's option whether or
not the Bank has made demand.
1. The Borrower or any guarantor of this note ("Guarantor") fails to pay when
due any amount payable under this note or under any agreement or
instrument evidencing debt to any creditor;
2. The Borrower or any Guarantor (a) fails to observe or perform any other
term of this note; (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 the debt evidenced by this note) such that the
creditor declares the debt due before its maturity;
3. There is a default under the terms of any loan agreement, mortgage,
security agreement, or any other document executed as part of the loan
evidenced by this note, or any guaranty of the loan evidenced by this note
becomes unenforceable in whole or in part, or any Guarantor fails to
promptly perform under its guaranty;
4. 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;
5. The Borrower or any Guarantor becomes insolvent or unable to pay its debts
as they become due;
6. 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 itself or for a substantial part of its assets; or (c)
commences any proceeding under any bankruptcy, reorganization,
liquidation, insolvency or similar laws of any jurisdiction;
7. A custodian, receiver, or trustee is appointed for the Borrower or any
Guarantor or for a substantial part of its assets without the consent of
the party against which the appointment is made and is not removed within
60 days after such appointment;
8. Proceedings are commenced against the Borrower or any Guarantor under any
bankruptcy, reorganization, liquidation, or similar laws of any
jurisdiction, and such proceedings remain undismissed for 60 days after
commencement; or the Borrower or Guarantor consents to the commencement of
such proceedings;
9. 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;
10. The Borrower or any Guarantor dies;
11. 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);
12. 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;
13. 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;
14. The Bank in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure.
Remedies. If this note is not paid at maturity, whether by 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 this 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 Bank in any bankruptcy,
reorganization, insolvency or other similar proceeding.
Waiver. Each endorser and any other party liable on this 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 note. 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.
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 Bank, its successors and assigns. Any reference to the Bank
shall include any holder of this 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 note.
Waiver of Jury Trial. The Bank 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 Bank
and the Borrower.
Address: Borrower:
One Ionia, S.W. Alternate Marketing Networks, Inc.
Suite 300
Grand Rapids, MI 49503-4145 By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
Credit Authorization Agreement
Bank One, Michigan (the "Bank"), whose address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, has approved the credit facilities listed below
(collectively, the "Credit Facilities," and individually, as designated below)
to Alternate Marketing Networks, Inc. (the "Borrower"), whose address is One
Ionia, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, subject to the terms and
conditions set forth in this agreement.
1.0 Credit Facilities.
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 disbursement.
A. Facility A. The Bank has approved an uncommitted Credit
Authorization to the Borrower in the principal sum not to exceed
$2,500,000.00 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 ▇▇▇▇▇▇ 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 June 30, 2000 unless earlier withdrawn.
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, the funding
of a Lease or otherwise, the Borrower shall deliver to the Bank, in
form and substance satisfactory to the Bank:
A. Loan Documents. The Notes, and if applicable, the Leases, the
letter of credit applications, the security agreement, financing
statements, mortgage, guaranties, subordination agreements and any
other loan documents which the Bank may reasonably require to give
effect to the transactions described 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;
C. Evidence of Authority to Enter into Loan Documents. Evidence
satisfactory to the Bank that (i) each party to this agreement and
any other loan document required by this agreement is authorized
to enter into the transactions described by this agreement and the
other loan documents, and (ii) the person signing on behalf of
each party is authorized to do so; and
D. Year 2000 Assessment. If requested by the Bank, information
satisfactory to the Bank regarding the Borrower's plan for
addressing Year 2000 issues. "Year 2000 Issues" means anticipated
costs, problems and uncertainties associated with the inability of
certain computer applications to effectively handle data including
dates on and after January 1, 2000, as such inability affects the
business, operations, and financial condition of the Borrower and
of the Borrower's material customers, suppliers and vendors.
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, the funding of a Lease or
otherwise, the following conditions shall have been satisfied:
A. Representations. The Representations contained in this agreement
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 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.
3.0 Borrowing Base/Annual Pay Down.
3.1 Borrowing Base. Notwithstanding any other provision of this
agreement, the aggregate principal amount outstanding at any one time
under Facility A shall not exceed the lesser of the Borrowing Base or
$2,500,000. Borrowing Base means:
A. 70% of the Borrower's and Guarantors' 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 50% of the aggregate amount owing from
the trade debtor to the Borrower is more than 90 days past due,
and accounts otherwise unacceptable to the Bank.
4.0 Fees and Expenses.
4.1 Out-of-Pocket Expenses. 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 the borrowings and all other obligations under the Credit
Facilities shall be secured by a first security interest and/or real
estate mortgage, as the case may be, covering the following property
and all its additions, substitutions, increments, proceeds and
products, whether now owned or later acquired ("Collateral"):
A. Accounts Receivable. All of the Borrower's and Guarantors'
accounts, chattel paper, general intangibles, instruments, and
documents (as those terms are defined in the Michigan 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.
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 the
borrowings and all other obligations 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 obligations under the
Credit Facilities, in whole or partial payment of such obligations 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. Payment of the Borrower's obligations under the Credit
Facilities shall be guaranteed by National Home Delivery, Inc. and
Alternate Postal Direct, 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. Reserved.
8.0 Affirmative Covenants. So long as any debt or obligation 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 properly 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. The Bank retains 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.
8.4 Notice. Give 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. Reserved.
8.6 Management. Reserved.
8.7 Financial Reports. Furnish to the Bank whatever information, books,
and records the Bank may reasonably request, including at a minimum:
If the Borrower has subsidiaries, all financial statements required
will be provided on a consolidated and on a separate basis.
A. Within 45 days after each quarterly period, a balance sheet as of
the end of that period and statements of income, cash flows, and
retained earnings from the beginning of that fiscal year to the
end of that period, certified as correct by one of its authorized
agents.
B. Within 90 days after, and as of the end of, each of its fiscal
years, a detailed audit including a balance sheet and statements
of income, retained earnings, and cash flows certified by an
independent certified public accountant of recognized standing.
C. Within 30 days after and as of the end of each calendar month,
the following lists, each certified as correct by one of its
authorized agents:
(1) a list of accounts receivable of Borrower and Guarantors,
aged from date of invoice;
(2) a list of accounts payable of Borrower and Guarantors,
aged from date of receipt.
8.8 Environmental Certificate. Reserved.
8.9 Year 2000 Issues. The Borrower will take all actions reasonably
necessary to assure that Year 2000 Issues will not have a material
adverse effect on the business operations or financial condition of
the Borrower. Upon the Bank's request, the Borrower will provide
the Bank with a description of its plan to address Year 2000 Issues,
including updates and progress reports. Borrower will advise the
Bank of any reasonably anticipated material adverse effect on the
business operations or financial condition of the Borrower as a
result of Year 2000 Issues.
9.0 Negative Covenants. Reserved.
10.0 Representations by ▇▇▇▇▇▇▇▇. Each Borrower represents that: (a) the
execution and delivery of this agreement, the Notes, and the Leases and
the performance of the obligations they impose do not violate any law,
conflict with any agreement by which the Borrower is bound, or require
the consent or approval of any governmental authority or other third
party; (b) this agreement, the Notes, and the Leases are valid and
binding agreements, enforceable in accordance with their terms; and (c)
all balance sheets, profit and loss 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, the Notes, and the Leases
and the performance of the obligations they impose (i) are within its
powers; (ii) 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 agreement governing its affairs.
11.0 Acceleration.
11.1 Events of Acceleration. If any of the following events occurs, the
Credit Facilities shall terminate and all borrowings and other
obligations under them shall be 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,
the Notes or the Leases ("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, the Notes or the Leases; (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 obligations
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 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 such appointment;
H. Proceedings are commenced against the Borrower or any Guarantor
under any bankruptcy, reorganization, liquidation, or similar
laws of any jurisdiction, and such proceedings remain undismissed
for 60 days after commencement; or the Borrower or Guarantor
consents to the commencement of such 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; or
N. The Bank in good faith shall deem itself insecure.
11.2 Remedies. If the borrowings and all other obligations 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 attorney's
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 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, 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, the Leases 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, the Notes or the
Leases 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 invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity,
legality or enforceability of the obligations of the Borrower under
this agreement, the Notes or the Leases 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 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 Bank and the Borrower.
Executed by the parties on: June 21, 1999.
Bank One, Michigan Borrower:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, First Vice President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
Address for Notices: Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇.▇. One Ionia, S.W., Suite 300
Grand Rapids, MI 49503 Grand Rapids, MI ▇▇▇▇▇-▇▇▇▇
Fax/Telex No.(▇▇▇)▇▇▇-▇▇▇▇ Fax/Telex No. (▇▇▇)▇▇▇-▇▇▇▇
