EXHIBIT 10.05
REAL ESTATE TERM LOAN AGREEMENT
THIS AGREEMENT is made on January 5, 1998 between G-P PLASTICS, INC., a
Michigan corporation with principal offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxxx 00000 (the "Borrower"), and NBD BANK, a Michigan banking
corporation with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 (the "Bank").
(A) The Borrower has applied to the Bank for a loan to provide funds for
the acquisition of: (1) the real estate described in the attached Exhibit A
(the "Site"); and (2) all buildings, structures, site improvements and other
improvements located on the Site (the "improvements"). The Improvements and the
Site are referred to collectively in this agreement as the "Project."
(B) The Bank wishes to lend the Borrower the sums described below, and the
Borrower wishes to borrow those sums from the Bank, subject to and in accordance
with the terms and conditions of this agreement.
Therefore, the parties agree as follows:
ARTICLE I DESCRIPTION OF LOAN; RESERVE ACCOUNTS; SINKING FUND
1.1 Loan Disbursement. Subject to the terms and conditions of this
agreement, the Bank shall lend to the Borrower, and the Borrower shall borrow
from the Bank, the sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($ 1,200,000)
(the "Loan"). The Borrower acknowledges and agrees that the entire principal
amount of the Loan has been fully advanced to the Borrower as of the date of
this agreement and that no further advances of Loan proceeds are required under
this agreement. $972,000 of the Loan proceeds will be applied to the acquisition
of the project. $128,000 of the Loan proceeds shall be deposited to an account
at the Bank in the name of the Borrower but under the sole dominion and control
of the Bank (the "Construction Escrow") to be disbursed in accordance with
Section 1.3 below to finance construction on the Project. $100,000 of the Loan
Proceeds shall be deposited to an account at the Bank in the name of the
Borrower but under the sole dominion and control of the Bank (the "Environmental
Escrow") to be disbursed in accordance with Section 1.3 below to finance the
environmental remediation of the Project. The Borrower shall repay the Loan to
the Bank (plus interest and other costs and charges that the Bank may incur), as
provided in this agreement, the Note (as defined below) and the other Loan
Documents (as defined below).
1.2 Note. The Borrower's debt to the Bank for its borrowings under the Loan
shall be evidenced by a Mortgage Note executed concurrently (together with all
extensions, renewals, modifications, amendments, and substitutions, the "Note").
1.3 Construction and Environmental Escrows. The Borrower hereby pledges
the Construction Escrow and the Environmental Escrow to the Bank as additional
Collateral for the
Loan and grants the Bank a security interest in them. From time to time the
Borrower may request that the Bank release funds from the Construction Escrow to
fund construction on the Project and from the Environmental Escrow to fund
environmental remediation of the Project. The Bank shall not be obligated to
release such funds unless and until the Borrower complies with the following
conditions
(A) Compliance With Conditions to Lending. The Borrower shall have complied
with the conditions to lending set forth in Article 4 below.
(B) Request for Advances. The Borrower shall have delivered to the Bank a
request for each advance on forms acceptable to and/or provided by the Bank.
Each request shall indicate the amount of the advance being requested and the
date upon which the advance is desired, which date should be not less than five
(5) business days after the date upon which the Bank receives the request. The
Bank shall not make more than two advances from the Construction Escrow and two
advances from the Environmental Escrow in any calendar month.
(C) Compliance With Michigan Construction Lien Act. In the Bank's opinion
the Borrower shall have (1) fully complied with all provisions of the Michigan
Xxxxxxxxxxxx Xxxx Xxx, 0000 PA 497, as amended from time to time (the "Act")
with respect to the construction or environmental remediation to be funded with
the advance and (2) before the commencement of any actual physical improvements
(as defined in the Act) in connection with any construction or environmental
remediation, recorded a notice of commencement (as defined in the Act) with
respect to the construction or environmental remediation and delivered a copy of
that notice to the Bank.
(D) Scope of Construction or Environmental Remediation. The Borrower shall
have delivered to the Bank plans and specifications regarding (or such other
evidence as the Bank shall require recording) the scope of the construction or
environmental remediation, all in form and substance satisfactory to the Bank
(such materials being called the "Scope Documents")
(E) Cost Estimate. The Borrower shall have delivered to the Bank an
estimate of the cost of completing the construction or environmental
remediation, based upon the Scope Documents, in form, substance and amount
satisfactory to the Bank (such estimate being called the "Cost Estimate").
(F) Evidence of Compliance with Applicable Laws. The Borrower shall have
delivered to the Bank evidence that the construction or environmental
remediation will comply with (1) all building, use, safety, zoning, subdivision,
air quality, condominium, planning, environmental and all other similar laws,
ordinances, rules, regulations and other requirements of any federal, state,
municipal or other governmental or public authority affecting the construction
or environmental remediation, including the requirements of the ADA and (2) all
covenants, conditions, restrictions and reservations affecting the Site or the
Project
2
(G) Permits. The Borrower shall have delivered to the Bank copies of
all required permits, licenses, approvals, acceptances a nd authorizations that
are then procurable and that are required for the construction or environmental
remediation
(H) Draw Package. The Borrower shall have delivered to the Bank sworn
statements, a schedule of costs by work trade category, waivers of lien, copies
of all writings relating to the Project received or sent by the designee
identified in the notice of commencement for the construction or environmental
remediation during the period ending with the date of the request for advance,
affidavits and certificates of the Borrower and/or the general contractor
performing the construction or environmental remediation and assurances of
payment acceptable to the Bank of the general contractor, if any, and all trade
contractors, subcontractors and materialmen, which shall cover all work, labor
and materials (including equipment and fixtures of all kinds) done, performed or
furnished for the construction or environmental remediation to the date of the
request.
(I) Inspection. The portion of the construction or environmental
remediation that has been completed at the time of the request for the advance
is subject to inspection by the Bank or its designee.
1.4 Establishment of Reserve Account. Concurrently with the execution of
this agreement, the Borrower will establish a reserve account (the "Reserve
Account") at the Bank. the Reserve Account will be in the name of the Borrower
but under the sole dominion and control of the Bank. The Borrower hereby pledges
the Construction Escrow and the Environmental Escrow to the Bank as additional
Collateral for the Loan and grants the Bank a security interest in them. The
Borrower shall deposit into the Reserve Account, on or before the fifth (5th)
day of each month, beginning February 5, 1998, an amount equal to $18,000. The
Borrower shall not be obligated to deposit further amounts into the Reserve
Account so long as a balance of $200.000 is maintained in that account. Amounts
deposited in the Reserve Account may be used only to pay the claims of the
Borrower's preferred shareholders and related legal expenses and only with the
Bank's permission. Upon the Bank's determination in its sole and unfettered
discretion that all claims and potential claims of preferred shareholders (and
similar claims regardless of whether the claimants are in fact preferred
shareholders) have been satisfied or discharged, the Bank shall, at the
Borrower's request release the balance of the Reserve Account to the Borrower
and the Borrower's obligation to fund the Reserve Account shall cease.
ARTICLE 2 FEES
2.1 Commitment Fee. The Borrower has paid the Bank a commitment fee of
$28,750. The Borrower acknowledges that that fee has been earned by the Bank and
that it is nonrefundable.
2.2 Annual Maintenance Fee. On January 5, 1999 and on the 5th day of each
December thereafter, the Borrower shall pay the Bank a Maintenance Fee of $2,875
to compensate the Bank for the cost of administering the Loan.
3
2.3 Costs. Expenses, and Attorney's Fees. The Borrower shall pay all the
Bank's out-of-pocket costs and expenses relating to the Loan, including
appraisal fees and title insurance premiums. The Borrower shall also pay the
Bank's reasonable attorney's fees for the Loan (including those of its "in-
house" counsel). Costs, expenses and fees relating to the initial negotiation,
documentation and closing of the Loan, unless previously paid, shall be paid at
closing of the Loan. All other costs, expenses and fees shall be paid to the
Bank within ten (10) days after a request for such payment.
ARTICLE 3 SECURITY
3.1 Description of Security. The Loan and the Note shall be secured and/or
supported by the following:
(A) Mortgage. A first mortgage lien in the Bank's favor on the Project
pursuant to a mortgage in form and substance acceptable to the Bank (as amended
from time to time, the "Mortgage");
(B) [Intentionally Omitted]
(C) Assignment of Rents. All present and future rents, issues and
profits arising out of or relating to all present and future leases affecting
all or any portion of the Project (each, a "Lease"), pursuant to an assignment
of real estate leases and rents in form and substance acceptable to the Bank
(as amended and replaced, the "Assignment");
(D) [Intentionally Omitted]
(E) Guaranties. Joint and several guaranties executed by Xxxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxxx Xxxxxxxxx (each, a "Guarantor," and,
collectively, the "Guarantors"), pursuant to guaranty agreements in form and
substance acceptable to the Bank (each, as amended and replaced, a "Guaranty,"
and collectively, as amended and replaced, the "Guaranties"), the obligations of
each Guarantor under its Guaranty to be limited to the principal amount of
$200,000 plus interest and costs;
(F) Debt Subordination. The subordination of $1,000,000 in debt from
the Borrower to Capital BIDCO and Horizon BIDCO to all debt of the Borrower to
the Bank pursuant to a subordination agreement in form and substance acceptable
to the Bank (as amended and replaced, the "Debt Subordination");
(G) Additional Collateral/Setoff. A continuing security interest in (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) and (2) 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
borrowings under the
4
Loan, in whole or partial payment of such borrowings or other present or future
liabilities of the Borrower to the Bank, without any requirement of mutual
maturity;
(H) Cross-Lien. Any of the Borrower's other property in which the Bank
has a security interest to secure payment of any other present or future debt,
whether absolute, contingent, direct or indirect, including the Borrower's
guaranties of the debts of others.
3.2 Definition of Loan Documents. This agreement, the Note, the Mortgage,
the Assignment, the Guaranties, the Debt Subordination, the Environmental
Certificate (as defined below), and the Bank's commitment letter dated November
10, 1997, accepted by the Borrower on November 14, 1997, (together with all
amendments to, modifications and replacements of and substitutions for those
documents) are sometimes collectively referred to in this agreement as the "Loan
Documents". The terms and conditions of the other Loan Documents are
incorporated into this agreement by this reference.
Term of Loan Documents. The terms and conditions of the Loan Documents
shall remain in full force and effect until the Bank has been paid all sums due
under them.
ARTICLE 4 CONDITIONS
4.1 Conditions for Advances. The Bank shall not be obligated to close the
Loan or advance the Loan proceeds to the Borrower unless the Borrower has
complied with the following requirements and conditions:
(A) Representations and Warranties. All representations and warranties
made by the Borrower, and each Guarantor to the Bank, including those contained
in the Loan Documents, shall be true and correct on and as of the date of the
advance with the same effect as if made on that date;
(B) No Material Change in Financial Condition. There shall have been no
material adverse change in (a) the projected income or expenses of the Project
or (b) the financial condition of the Borrower, any of the Guarantors, any
lessee under any Lease or any guarantor of any Lease;
(C) No Right to Terminate. None of the events described in article 11
of this agreement for which the Bank has the right to terminate this agreement
has occurred;
(D) No Insolvency or Bankruptcy Proceedings. Neither the Borrower, nor
any tenant under any Lease, nor any of the Guarantors, nor any guarantor of any
Lease shall be the subject of any bankruptcy, reorganization or insolvency
proceedings;
(E) No Default Under the Loan Documents. There shall not have occurred
and be continuing any default under any of the Loan Documents or a violation of
any terms of any of the Loan Documents, nor shall there have occurred an event
that with the passage of time, the giving
5
of notice, or both, would constitute a default under any of the Loan Documents
or a violation of any terms of any of the Loan Documents;
(F) No Default Under Any Other Loan. There shall not have occurred and
be continuing any default under, or violation of any term of, any other loan by
the Bank to the Borrower or to any Guarantor, nor shall there have occurred and
be continuing an event that with the passage of time, the giving of notice, or
both, would constitute such a default or violation;
(G) Required Documents. The Bank shall have received the following
documents and information, all in form, substance and amount (if applicable)
satisfactory to the Bank:
(1) Loan Documents. Executed copies of all of the Loan Documents and
any other documents required by the Bank, including executed and proposed
Leases;
(2) Appraisals. Such appraisals of the Project as the Bank may
require;
(3) Financial Statements. Current financial statements for the
Borrower, and each Guarantor.
(4) Evidence of Compliance With Applicable Laws. Evidence of the
compliance of the Project with (a) all building, use, safety, zoning,
subdivision, air quality, condominium, planning, envirnomental and all other
similar laws, ordinances, rules, regulations and other requirements of any
federal, state, municipal or other governmental or public authority affecting
the use and/or occupancy of the Project, including the requirements of the ADA
and (ii) all covenants, conditions, restrictions and reservations affecting the
Site or the Project;
(5) Permits. All required permits, licenses, approvals, acceptances
and authorizations that are then procurable and that are required for the use
and/or occupancy of the Project;
(6) Insurance. Original paid insurance policies as required by the
Loan Documents.
(7) Survey. Within 30 days after closing, furnish a current survey,
certified by a registered land surveyor to the Bank and the title insurer of the
Mortgage, showing (a) the location of all existing Improvements on the Site,
including parking areas, (b) all easements and public utilities (identified by
liber and page of recording), (c) all means of ingress and egress to the Site,
(d) all setback lines, (e) any encroachments either upon the real estate of
others or by others upon the Site, (f) the location and availability of
satisfactory utility services and storm drain and sewer facilities and (g) no
other matter objectionable to the Bank. The Borrower shall from time to time,
when required by the Bank, furnish supplemental surveys of the Site, showing (i)
the location of additional Improvements installed or placed on the Site since
the previous survey was performed and (ii) such other matters as the Bank
requires;
6
(8) Mortgage Title Insurance. A paid policy of mortgage title insurance
(in the current standard ALTA form), without exceptions, containing zoning
(either ALTA Form 3.0 or ALTA Form 3.1, as the Bank requires), comprehensive,
survey, access and such other endorsements as the Bank requests, issued by a
company satisfactory to the Bank in the full amount of the Loan. The policy
shall insure that the Bank is a first mortgagee of the Project and that title to
the Project is in the Borrower, free and clear of all easements, restrictions,
defects, liens, claims, charges and encumbrances, except those indicated in the
Mortgage or otherwise approved by the Bank.
(9) Environmental Questionnaire. A completed customer environmental
questionnaire;
(10) Environmental Compliance. Evidence that the Borrower
(a) has conducted and completed all environmental investigations and
studies on or to the Site, including a comprehensive environmental assessment,
as may be required by (i) the Bank, (ii) any governmental agency or authority or
(iii) any statute, regulation, rule, policy or ordinance, to determine whether
the Site has been contaminated with or by Hazardous Materials (as defined in the
Environmental Certificate) and whether regulated wetlands are present on the
Site and
(b) has performed and completed or will perform and complete all
necessary remedial, removal and other actions to the Site so that the Site
conforms to all applicable federal, state and local statutes, ordinances, rules,
regulations, policies, orders and directives which govern or protect the
environment;
(11) Evidence of Due Organization and Good Standing. Evidence of the due
organization and good standing of the Borrower and every other business entity
that is a party to this agreement or any of the other Loan Documents, together
with an executed copy, if and as applicable, of the partnership agreement, the
operating agreement, the articles of incorporation or organization, the bylaws
or any similar agreement for each of those business entities (the
"Organizational Documents");
(12) Evidence of Authority to Enter Into Loan Documents. Evidence that
(a) each party to this agreement or to any of the other Loan Documents is
authorized to enter into the transactions contemplated by this agreement and/or
the other Loan Documents, as the case may be, and (b) the person(s) signing on
behalf of each of those parties is authorized to do so;
(13) Environmental Certificate. A completed environmental certificate (as
amended and replaced from time to time, the "Environmental Certificate");
(14) Legal 0pinion. A written opinion of legal counsel for the Borrower
stating that--
7
(a) the Borrower is a duly organized and existing Michigan
corporation (for which the Michigan Department of Commerce has issued a
Certificate of Good Standing within thirty (30) days of the date of the opinion,
a certified copy of which shall be attached to the opinion),
(b) the execution of the Loan Documents by the Borrower is
authorized by all appropriate corporate action of the Borrower,
(c) the execution of the Loan Documents does not contravene (i) the
articles of incorporation or bylaws of the Borrower, or (ii) any undertaking,
contract or restriction known to counsel to which the Borrower is a party or to
which it is subject,
(d) counsel has no knowledge of any material proceedings, legal or
equitable, pending or threatened, (a) against the Borrower, the Site or the
Improvements, (b) that involve the validity or enforceability of the Loan
Documents or (c) that would affect the contemplated use of the Project, and
(e) the Loan Documents are valid and legally binding upon the
Borrower, enforceable in accordance with their terms, except as enforcement may
be limited by any proceedings in bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors'rights and remedies.
(15) Additional Documents. Such additional documents and information as
the Bank may reasonably require.
(H) Closing of CIT Facility. The $3,500,000 financing from CIT Corporation
to the Borrower and the Bank's participation therein shall have closed to the
satisfaction of the Bank (the "CIT Facility").
4.2 Nonliability . So long as the Bank is acting in good faith, the Bank
shall not be liable for any error, omission, irregularity or action taken
regarding any advance under the Loan.
ARTICLE 5 INSURANCE
As long as any part of the Loan remains unpaid, the Borrower shall maintain
for all property covered by the lien of the Mortgage or otherwise securing
repayment and performance of the Loan, a policy or policies of insurance against
fire (and such other hazards and risks customarily covered by the standard form
of extended coverage endorsement available in the state of Michigan, including
risks of malicious mischief and vandalism, and covering all property subject to
the lien of the Mortgage or otherwise securing the Loan), as well as a policy or
policies of insurance for builder's risk (if applicable), public liability,
worker's compensation, federal flood insurance (if required) and such other
insurance as the Bank may, from time to time require, containing as applicable a
standard loss payable and/or mortgagee clause, without contribution, in favor of
the Bank. All policies shall be with companies and in form, amount, and
substance
8
satisfactory to the Bank, and shall be noncancelable except upon thirty (30)
days' written notice to the Bank.
ARTICLE 6 AFFIRMATIVE COVENANTS
6.1 The Borrower covenants with the Bank:
(A) Access to the Project. To give the Bank or its designee access to
the Project and a to make available for audit and inspection by the Bank or its
agents all property, equipment, books, contracts, records and other papers
relating to the Project;
(B) Book and Accounts. To keep the books and accounts of all operations
relating to the Project in accordance with generally accepted accounting
principles;
(C) Respond to Inquiries. To respond promptly to any inquiry from the
Bank for information concerning the Project, which information may be verified
by the Bank at the Borrower's expense. Notwithstanding the foregoing, the Bank
shall at all times be entitled to rely upon any statements or representations
made by the Borrower or its agents and the Borrower shall hold the Bank harmless
from and indemnify it against all losses costs (including reasonable attorney's
fees) and damages sustained by the Bank through any action taken or forbearance
granted by the Bank in reliance on such statements or representations;
(D) Payment of Costs. To pay, when due, all costs, fees and expenses
required or needed to satisfy the conditions of the Loan Documents and the
consummation of the transactions contemplated by the Loan Documents;
(E) Correction of Defects or Variations. Upon the Bank's demand, to
correct any structural defect in the Improvements;
(F) Performance Under Leases. To fully perform all covenants and
obligations under all Leases;
(G) Existence. To maintain its existence and business operations as
presently in effect in accordance with all applicable laws and regulations; to
pay its debts and obligations when due under normal terms; and to 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;
(H) Financial Records. To 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;
(I) Notice. To give prompt notice to the Bank of the occurrence of (1)
an Event of Default (as defined below) and/or (2) any other development,
financial or otherwise, that would
9
affect the Borrower's, any Guarantor's, any tenant's, or any Lease guarantor's
business, properties or affairs in a materially adverse manner;
(J) To permit the Bank to perform semi-annual collateral audits (the
"NBD Collateral Audits") at the Borrower's expense so long as any funds are
outstanding or available under the CIT Facility. The NBD Collateral Audits shall
be performed during those quarters when such audits are not performed by CIT.
Such information as may be reasonably requested by the Bank's auditors in order
to complete their audit shall be made available to them. The results of any NBD
Collateral Audit shall be provided to CIT.
(K) Required Documents and Financial Statements. To furnish or cause to
be furnished to the Bank:
(1) Within sixty (60) days after each and as of the end of each
fiscal year of the Borrower, its balance sheet and statements of income,
retained earnings and cash flows, compiled by an independent certified public
accountant of recognized standing and certified as correct and accompanied by a
covenant compliance certificate signed by one of the Borrower's authorized
agents;
(2) Within forty-five (45) days after each fiscal quarter of the
Borrower (other than the fourth quarter), its balance sheet as of the end of
that quarter and its statements of income, retained earnings and cash flows from
the beginning of that fiscal year to the end of that quarter, compiled by an
independent certified public accountant of recognized standing and certified as
correct and accompanied by a covenant compliance certificate signed by one of
the Borrower's authorized agents;
(3) Within fifteen (15) days after each fiscal month of the
Borrower, its balance sheet as of the end of that month and its statement of
income, from the beginning of that fiscal year to the end of that period,
certified as correct by one of the Borrower's authorized agents;
(4) Within fifteen (15) days after and as of the end of each
calendar year, the signed personal financial statement of each Guarantor;
(5) Within fifteen (15) days after filing, a signed copy of the
federal income tax return of the each Guarantor, with all exhibits and
schedules;
(6) No later than July 15 and January 15 of each year, real and
personal property tax receipts reflecting taxes due for the preceding summer and
winter, respectively, marked as paid by the appropriate authority; and
(7) Promptly, such other information or books and records as the
Bank may reasonably request.
ARTICLE 7 NEGATIVE COVENANTS
10
7.1 Definitions. As used in this agreement, the following terms shall have
the following respective meanings:
(A) Cash Flow. The term "Cash Flow" means, for any period, net income
for that period, plus, to the extent deducted in determining net income,
interest expense, depreciation, amortization, and other non-cash charges.
(B) Debt Service. The term "Debt Service" means for any period,
principal and interest payments (including those associated with capital or
operating lease obligations) paid or 12 payable during that period.
(C) Subordinated Debt. The term "Subordinated Debt" means debt
subordinated to the Bank in manner and by agreement satisfactory to the Bank.
(D) Tangible Capital Funds. The term "Tangible Capital Funds" means the
sum of Tangible Net Worth plus Subordinated Debt.
(E) Tangible Net Worth. The term "Tangible Net Worth" means total
assets less intangible assets, preferred stock that is not Qualified Preferred
Stock and total liabilities. Intangible assets include goodwill, patents,
copyrights, mailing lists, catalogues, trademarks, bond discount and
underwriting expenses, organization expenses and all other intangibles.
(F) Qualified Preferred Stock. The term "Qualified Preferred Stock"
means preferred stock of the Borrower under the terms of which no payment is
required until (i) the ratio of the Borrower's Cash Flow to Debt Service plus
payments on account of preferred stock exceeds 1.40 to 1.00 for the immediately
preceding four quarters and (ii) the ratio of the Borrower's total liabilities
to its Tangible Capital Funds minus the principal amount of any debt then owing
but not paid (including amounts owing to preferred shareholders) does not
exceed 3.00 to 1.00.
7.2 Generally Accepted Accounting Principles. Unless otherwise noted, the
financial requirements set forth in these negative covenants shall be computed
in accordance with generally accepted accounting principles applied on a basis
consistent with financial statements previously submitted to the Bank.
7.3 Negative Covenants. The Borrower shall not, without the prior written
consent of the Bank, do or permit to be done any of the following:
(A) No Encumbrance or Conveyance. Convey, transfer. lease or encumber
all or any portion of the Site or the Project.
(B) No Modification of Leases. Modify any Lease.
11
(C) No Encumbering of Personal Property. Assign, transfer, dispose of
or encumber any personal property or equipment covered by the Loan Documents,
except in the ordinary course of the Borrower's business or as permitted by the
Loan Documents.
(D) No Transfer of Beneficial Interest. Convey, assign or transfer any
beneficial interest in the Project or any right to manage or receive any of the
rents, contract payments, income, profits or proceeds of or relating to the
Project.
(E) No Remodeling, or Reconstruction. Remodel, add to, reconstruct,
improve or demolish any part of the Project or any existing improvement on the
Site without the Bank's permission.
(F) No Variation in Use. Permit the Project to be used for any purpose
other than that for which it was originally intended.
(G) No Conditional Sales Contracts. Purchase or install any materials,
equipment, fixtures or any other part of the Improvements, or any articles of
personal property placed in the Improvements, under any conditional sales
contract, security agreement or other arrangement under which the seller (1)
reserves or purports to reserve either title to, or the right to remove or to
repossess, the items sold or (2) may consider the items sold to be personal
property after their incorporation into the Improvements.
(H) No Liens. Create or permit to exist any lien on any of its
property, real or personal, except: (1) existing liens disclosed to the Bank in
writing; (2) liens incurred in the ordinary course of business securing current
nondelinquent liabilities for taxes, worker's compensation, unemployment
insurance, social security and pension liabilities; (3) liens for taxes being
contested in good faith; and (4) liens created pursuant to article 3 of this
agreement.
(I) Tangible Capital Funds. Permit its Tangible Capital Funds to be
less than $225,000 on or after March 31, 1998, increasing on the last day of
each month thereafter by 100% of net income for that month until the ratio of
the Borrower's total liabilities to its Tangible Capital Funds is 3.00 to 1.00
or less.
(J) Debt Service Coverage. For the fiscal four quarter period ending on
the last day of the fiscal quarter immediately preceding the date of
determination, permit the ratio of its Cash flow to its Debt Service to be less
than 1.25 to 1.00.
(K) No 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 (1) dividends payable in its capital stock or
(2) if the Borrower is a Subchapter S corporation, dividends payable to its
shareholders sufficient in amount to pay their income-tax obligations related to
the Borrower's taxable income.
12
(L) No Sale of Shares. Issue, sell or otherwise dispose of any shares
of its capital stock or other securities or any rights, warrants or options to
purchase or acquire any such shares or securities.
(M) No Debt. Incur, or permit to remain outstanding, debt for borrowed
money or installment obligations, except debt not to exceed $3,500,000 to CIT
Corporation, any debt to the Bank, 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 Loan. For
purposes of this covenant, the sale of any accounts receivable shall be deemed
the incurring of debt for borrowed money.
(N) No Guaranties. Guaranty or otherwise become or remain secondarily
liable on the undertaking of another, except for endorsement for deposit and
collection in the ordinary course of business.
(O) No 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.
(P) No Leases. Contract for or assume in any manner lease obligations
as lessee.
(Q) Limit on Compensation. Pay Inmold, Inc. or pay or award salary,
bonus, dividends, or compensation of any kind to any officer of the Borrower, in
any one fiscal quarter, in an aggregate amount in excess of five percent (5%) of
the Borrower's gross revenues for that quarter.
(R) Modification of Organizational Documents. Amend or modify any of
the Organizational Documents.
ARTICLE 8 REPRESENTATIONS AND WARRANTIES
8.1 In addition to any other representations and warranties made in the
other Loan Documents, the Borrower makes the following representations and
warranties to the Bank:
(A) Fee Simple Title. The Borrower has good and marketable fee simple
title to the Site, free from all liens and encumbrances except those permitted
under the Mortgage.
(B) Performance Under Leases. The Borrower has fully performed all
covenants and obligations to be performed by the Borrower under all Leases.
(C) Accuracy of Financial Statements. All financial statements
delivered to the Bank are true and correct in all material respects and have
been prepared in accordance with generally accepted accounting principles. No
materially adverse change in the financial
13
condition of the Borrower, in it business or in its property has occurred since
the date of each Financial statement.
(D) No Suits or Proceedings. There are no suits or proceedings, legal
or equitable, pending or threatened: (1) against or that affect the Borrower,
any of the Guarantors, the Site or the Improvements; (2) that involve the
validity or enforceability of any of the Loan Documents; or (3) that involve any
risk of a judgment or liability which, if satisfied, would have a materially
adverse effect on (a) the financial condition, business or properties of the
Borrower or any Guarantor, (b) the priority of the lien of the Mortgage or (c)
the contemplated use of the Project.
(E) Enforceability of the Loan Documents. When executed and delivered,
the Loan Documents will be valid, legally binding on the person(s) and/or
entity(ies) executing them and enforceable in accordance with their terms. The
consummation of the transactions contemplated by the Loan Documents does not
conflict with or result in (1) the breach of any valid regulation, order, writ,
injunction, judgment or decree of any court or of any governmental or municipal
instrumentality or (2) the breach of or default un der any agreement or other
instrument to which the Borrower is a party, by which it is bound, or to which
it is subject.
(F) Availability of Access and Utilities. The Project has adequate
rights of access to public ways. Water, sanitary sewer, storm drain facilities
and all other public utilities that are necessary or convenient to the full use
and enjoyment of the Project are available to and installed at the Project.
(G) Permits. Licenses. Authorizations, and Approvals. The Borrower has
obtained all required permits, licenses, approvals and authorizations for the
use and/or occupancy of the Project, including those required by any federal,
state or local authority charged with the enforcement of environmental laws and
regulations, including wetlands laws. The Borrower has to date fully complied
with: (1) all building, use, safety, zoning, subdivision, air quality,
condominium, planning and all other similar laws, ordinances, rules,
regulations and requirements of all federal, state, municipal and other
governmental or public authorities, including public utilities, pertaining to
the use and/or occupancy of the Project, including the requirements of the ADA;
and (2) all covenants, conditions, restrictions and reservations affecting the
Site or the Project. After execution of this agreement, the Borrower shall
maintain all permits, licenses, approvals and authorizations required for the
use and/or occupancy of the Project and shall continue to comply with (a) all
building, use, safety, zoning, subdivision, environmental, air quality,
condominium, planning and all other similar laws, ordinances, rules, regulations
and requirements pertaining to the Project, including requirements of the ADA,
and (b) all covenants, conditions, restrictions and reservations affecting, the
Site or the Project.
(H) No Encumbrances. The Improvements are located entirely on the Site
and do not unlawfully encroach on any easement, right-of-way or land of others,
nor do the Improvements violate any setback lines or applicable building
restrictions, use restrictions or other restrictions or regulations.
14
(I) No Default Under the Loan Documents. There is no default under, or
violation of any of the terms of, any of the Loan Documents, nor do
circumstances exist that with the passage of time, the giving of notice, or
both, would constitute such a default.
(J) Legal Organization of Business. The Borrower is a legally organized
and existing Michigan corporation, with a current Certificate of Good Standing
attached either to this agreement or to the opinion of legal counsel submitted
to the Bank contemporaneously with the execution of this agreement.
ARTICLE 9 EVENTS OF DEFAULT
9.1 If any of the following events occurs (in the singular, "Event of
Default," and in the plural, "Events of Default"), the Borrower shall be in
default under this agreement and the other Loan Documents:
(A) Failure to Pay. The Borrower or any Guarantor fails to pay when due
any amount payable under this agreement, the Note, any Guaranty or any agreement
or instrument evidencing debt to any creditor; or
(B) Failure to Comply With Provisions of the Loan Documents. There is a
violation of, or a failure to observe or perform according to, any term
contained in any of the Loan Documents, or a default occurs under the terms of
any of the Loan Documents; or
(C) Unenforceabilitv of Loan Documents. Any of the Loan Documents
becomes totally or partially unenforceable; or
(D) Misrepresentation or Breach of Warranty. The Borrower, any
Guarantor [or any Pledgor] (1) makes any materially incorrect or misleading
representation, warranty or certificate to the Bank or (2) makes any materially
incorrect or misleading representation in any financial statement or other
information delivered to the Bank; or
(E) Cross-Default. The Borrower or any Guarantor defaults under the
terms of any agreement or instrument relating to any debt for borrowed money
(other than the debt evidenced by the Note) such that the creditor declares the
debt due before its maturity; or
(F) Liens. A lien for the performance of work or the supplying of
materials is perfected against the Project and remains unsatisfied or unbonded
either (1) at the time of any request for advance or (2) for a period of thirty
(30) days after the date of filing or recording; or
(G) Assignment. The Borrower assigns this agreement or any advance or
right to receive an advance under this agreement without the Bank's prior
written consent; or
(H) Denial of Access or Information. Any employee, agent or assignee of
the Bank is denied any information regarding the Project or is denied access to
the Project; or
15
(I) [Intentionally Omitted]
(J) Enjoined From Conducting Business. The Borrower or any Guarantor
is enjoined, restrained or in any way prevented by court order from conducting
all or a substantial part of its business, or any proceeding seeking to enjoin,
restrain or in any way prevent the Borrower or any Guarantor from conducting all
or a substantial part of its business is commenced; or
(K) Forfeiture of Collateral. Formal charges are filed against the
Borrower, any Guarantor under any federal, state or municipal statute. law or
ordinance for which forfeiture of any property serving as collateral for the
Loan is a potential penalty, or any collateral for the Loan is in fact so seized
or forfeited; or
(L) Reportable Event. There occurs a "reportable event" (as defined in
the Employee Retirement Income Security Act of 1974 as amended) that would
permit the Pension Benefit Guaranty Corporation to terminate any employee
benefit plan of the Borrower or any affiliate of the Borrower; or
(M) Insolvency. The Borrower or any Guarantor becomes insolvent or
unable to pay its debts as they become due; or
(N) Consent to Insolvency Proceedings. The Borrower or any Guarantor
(1) makes an assignment for the benefit of creditors, (2) consents to the
appointment of a custodian, receiver or trustee for itself or for a substantial
part of its assets or (3) commences, or consents to the commencement or
continuation of, any proceeding under any bankruptcy, reorganization,
liquidation, insolvency or similar laws of any jurisdiction; or
(O) Appointment of Custodian, Receiver or Trustee. 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
sixty (60) days after such appointment; or
(P) Commencement of Bankruptcy Proceedings. 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 sixty (60) days after commencement; or
(Q) Entry of Judgment or Enforcement Thereof. 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 of any Guarantor; or
(R) Death. Any Guarantor dies; or
(S) Change of Business. The Borrower or any Guarantor, without the
Bank's written consent, (1) is dissolved, (2) merges or consolidates with any
third party, (3) leases, sells or otherwise conveys a material part of its
assets or business outside the ordinary course of its
16
business, (4) leases, purchases or otherwise acquires a material part of the
assets of any business entity outside the ordinary course of business or (5)
agrees to do any of the foregoing; or
(T) Substantial Change in Financial Condition. 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
(U) [Intentionally Omitted]
9.2 Notice and Opportunity to Cure. Notwithstanding the provisions of
section 9.1 above, the Bank shall:
(A) notify the Borrower in writing of its intent to accelerate the Loan
or to exercise any remedies available to it under this agreement or any of the
other Loan Documents because of the occurrence of an Event of Default, and
(B) allow the Borrower (i) five (5) days after receipt of that notice
to cure the Event of Default giving rise to the notice if that Event of Default
can be cured by the payment of money, or (ii) thirty (30) days after receipt of
that notice to cure the Event of Default giving rise to the notice if that Event
of Default cannot be cured by the payment of money; provided, however , that the
requirement by the Bank to give the Borrower notice and an opportunity to cure
as above provided shall not apply (i) to an Event of Default or Events of
Default under subsections (E), (F), (G), (H), (J), (K), (L), (N), (0), (P), (Q),
(R) or (S) of section 9.1; or (ii) if the Bank, during the preceding twelve
(12) month period, has given another notice to the Borrower under this section
of its intent to accelerate the Loan or to exercise any remedy available to it.
ARTICLE 10 REMEDIES UPON DEFAULT
10.1 The following remedies shall be available to the Bank upon the
occurrence of an Event of Default and failure to cure that default within the
applicable cure period, if any:
(A) Acceleration. The Bank may, at its option, without prior demand or
notice to the Borrower, declare the entire unpaid principal balance of the Note
and the Loan, plus all accrued and unpaid interest, to be immediately due and
payable.
(B) Bank's Right to Take Possession of the Project. The Bank may, as an
alternative to other methods of summary execution, but without waiving such
other methods (and particularly its rights as a mortgagee under the Mortgage):
(1) take possession of the Project (in person, by agent, or by court-appointed
receiver); and (2) take all steps (in person, by agent, or by court-appointed
receiver) that the Bank deems appropriate to secure and protect the Project. All
sums expended by the Bank for these p urposes shall be deemed to have been paid
to the Borrower and shall be secured by the Mortgage and the other Loan
Documents.
17
(C) Cumulative Remedies. The Bank may avail itself of any and all
remedies available to it in equity, at law or under this agreement or any of the
other Loan Documents. All remedies shall be cumulative and none shall be
exclusive of any other. Further, and not in limitation of the foregoing, the
Bank may: (1) terminate this agreement and demand full payment of the Loan and
any other indebtedness of the Borrower to the Bank under the Loan Documents; or
(2) utilize any remedy available to it under the terms and provisions of the
Loan Documents. Any requirement of reasonable notice shall be met if the Banks
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 for the Loan to be
transferred to or registered in its name or in the name of any other person or
business entity, with or without designation of the capacity of that nominee.
The Borrower is liable for any deficiency remaining after disposition of any
collateral for the Loan. The Borrower is liable to the Bank for all reasonable
costs and expenses of every kind incurred in the making or collection
of the Loans, including, without limitation, reasonable attorney's fees
(including the "in-house" counsel 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.
ARTICLE 11 CASUALTIES AND EMINENT DOMAIN
11.1 Damage to the Project. If there is any loss or damage to the Project
because of fire or other casualty, the Bank may elect to do either of the
following in its sole discretion:
(A) Termination of this Agreement. If, (1) when the loss or damage
occurs, the Borrower is in default under the Loan Documents, or if circumstances
exist that with the passage of time, the giving of notice, or both, would
constitute such a default, or (2) because of the loss or damage, any Lease,
purchase contract or other agreement relating to the sale or occupancy of any
portion of the Project is canceled, terminated or amended in a way that is
unsatisfactory to the Bank, the Bank may terminate this agreement. Such
termination shall not affect the validity of the Note or any security for the
Loan. If the Bank elects to terminate this agreement, the Bank shall collect all
proceeds of insurance relating to the loss or damage and the Borrower shall
assist the Bank in this regard. The Bank she apply those proceeds first toward
reimbursement of the Bank for all costs and expenses it may incur in collecting
the proceeds, including reasonable attorneys' fees, and then toward payment of
the Loan, plus accrued interest. If the proceeds of insurance are insufficient
to pay the Loan plus accrued interest in full after application of such proceeds
as provided above, the Bank may declare the Note to be immediately due and
payable and avail itself of a remedies as for a default under this agreement or
any of the other Loan Documents. If any proceeds of insura nce remain after
applying them as provided above, those excess proceeds shall be paid to the
Borrower by the Bank.
(B) Repairing, Restoring or Rebuilding the Project. Instead of
terminating this agreement as provided in subsection (A) above, the Bank may
elect to allow the Borrower if, (1) when the loss or damage occurs, the Borrower
is not in default under any, of the Loan Documents, nor do circumstances exist
that with the passage of time, the giving of notice, or
18
both, would constitute such a default, and (2) no Lease, purchase contract or
other agreement relating to the sale or occupancy of any portion of the Project,
because of the loss or damage, is canceled, terminated or amended in a way that
is unsatisfactory to the Bank, then the Bank shall allow the Borrower, subject
to the terms described below, to repair, restore or rebuild the Project, and if
the casualty occurred during any construction, to permit the Borrower to proceed
with construction. Notwithstanding the foregoing, after the loss or damage has
occurred the Borrower shall, in addition to complying with any other
requirements imposed by the Loan Documents:
(1) diligently proceed to settle with insurers all claims relating
to the loss or damage and cause the proceeds to be deposited with the Bank;
(2) if there is a delay in settling with insurers or collecting
proceeds of insurance, deposit with the Bank an amount deemed sufficient by the
Bank to repair, restore or rebuild the Project to the same state of completion
as existed before the loss or damage occurred;
(3) deposit with the Bank such additional sums as the Bank may
prescribe to assure that the repairs to or the rebuilding or restoration of the
Project to the same state of completion as existed before the loss or damage
will be accomplished;
(4) neither be in default under any of the Loan Documents at any
time after the original loss or damage has occurred, nor permit any
circumstances to exist that, with the passage of time, or the giving of notice,
or both, would constitute a default under any of the Loan Documents, nor permit
any Lease, sales contract or other agreement relating to the sale or occupancy
of any portion of the Project to be canceled, terminated or amended in a way
that is unsatisfactory to the Bank;
(5) comply with such additional terms and conditions for the
repairing, rebuilding or restoring of the Project as the Bank, in its sole
discretion, may prescribe.
When the Project is repaired, rebuilt or restored to the same state of
completion as existed before the loss or damage occurred, both parties shall
then carry out the terms of this agreement as if no loss or damage had occurred
and aN funds remaining on deposit with the Bank pursuant to this subsection (B),
including insurance proceeds, shall be disbursed to the Borrower. If the
Borrower fails, at any time, in the Bank's determination, to comply with any of
the terms and conditions of this subsection (B) regarding the rebuilding,
restoring or repairing of the Project, the Bank may elect to terminate this
agreement as provided in subsection (A) above and proceed as provided in
subsection (A).
11.2 Eminent Domain.
(A) Termination. If any one of the following events occurs, the Bank
may terminate this agreement:
(1) The entire Project is taken or condemned; or
19
(2) A portion of the Project is taken or condemned, and that taking
or condemnation, in the Bank's opinion, will limit or impair the Borrower's
ability or capacity to satisfy its present or future obligations relating to the
Project; or
(3) The taking or condemnation causes any Lease, purchase contract
or other agreement relating to the sale or occupancy of all or any portion of
the Project to be canceled or terminated or to be amended in a way that is
unsatisfactory to the Bank.
(B) Effect of Termination. The termination of this agreement under this
section shall not affect the validity of the Note or any security for the Loan,
plus interest. The Bank may demand full payment of the Loan, plus accrued
interest, and of all other indebtedness of the Borrower to the Bank under the
Loan Documents and it may avail itself of all remedies as for a default under
this agreement or any of the other Loan Documents. The right to terminate this
agreement as provided in this section shall be in addition to, and not in
derogation of, any other rights or remedies of the Bank under this agreement or
under the other Loan Documents, including the right, as provided in the
Mortgage, to receive payment of any award or other payment relating to the
taking or condemnation and to apply that award or payment to the alteration,
restoration or rebuilding of the Project or to payment of the Loan, plus accrued
interest.
(C) Alteration. Restoring or Rebuilding the Project. Alternatively,
instead of terminating this agreement as provided in subsection (A) above, the
Bank may, at its option, allow the Borrower to alter, restore or rebuild the
Project after a condemnation, whether partial or total. If the Borrower is so
permitted to after, restore or rebuild the Project after a condemnation, the
Borrower shall, in addition to complying with any other requirements imposed by
the Loan Documents, cause the condemnation award to be dealt with, and fulfill
the conditions/requirements as described in subsections (B) (1), (B) (2), (B)
(3), (B) (4) and (B) (5) of section 11.1, as if the proceeds of the
condemnation award were insurance proceeds relating to a fire or other casualty.
ARTICLE 12 MISCELLANEOUS
12.1 Waiver. No waiver by the Bank at any time of a term or condition of
this agreement or of any of the other Loan Documents shall be construed as a
waiver of any other term or condition, nor shall a waiver of any term or
condition be construed as a right to a subsequent waiver of the same term or
condition. The failure by the Bank to insist on the Borrower's Performance of
the terms and conditions of the Loan Documents, whether on one or more
occasions, shall not be construed as a waiver or relinquishment by the Bank of
any rights it has under the Loan Documents. Nor shall such failure be construed
as proh ibiting the Bank from insisting on the Borrower's strict compliance with
the terms and conditions of the Loan Documents at a later time.
20
12.2 Waiver in Writing Only. No provision of this agreement shall be
amended, waived or modified except by an instrument in writing signed by both
the Bank and the Borrower.
12.3 Severability. Unenforceability for any reason of any provision of this
agreement shall not limit or impair the operation or validity of any other
provision of this agreement or of any of the other Loan Documents.
12.4 The Bank's Payment of the Borrower's Obligations. If, in the Bank's
opinion, its position under the Loan Documents may be prejudiced or impaired by
the Borrower's failure to perform, or by the Borrower's unreasonable delay in
performing, its obligations under this agreement or the other Loan Documents
(including the payment of any prior charge upon the Project or any other charge
payable by the Borrower, whether or not related to the Project), the Bank may
pay or otherwise satisfy such obligations of the Borrower. Any payment or cost
relating to such satisfaction, including a reasonable attorney's fee, may be
charged to the proceeds of the Loan as any other advance can be charged, and
will be deemed to be made pursuant to this agreement and not in modification of
it.
12.5 Notices. Notice or demand from one party to the other relating to the
Loan shall be effective if made in writing and delivered to the recipient's
address set forth 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; or (D) Federal Express or
other nationally recognized overnight courier service. Regardless of the means
of delivery used, any notice or demand relating to the Loan shall be directed
to the following addresses:
To the Bank: NBD Bank
Attn: Xxx Xxxxxxxxxx
00000 Xxxxxxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000
To the Borrower: G-P Plastics, Inc.
Attn: Xxxx Xxxxxx
Chief Financial Officer
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000
AND:
G-P Plastics, Inc.
Attn: Xxxxxx Xxxxxxx
000 Xxxx Xxx Xxxxxx Xx.
Xxxxx 000
Xxxx, Xxxxxxxx 00000
W/COPY TO:
21
Xxxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxx Xx.
Xxxxx 000
X. Xxxxxxxxxx, Xxxxxxxx 00000
Any notice or demand made according to this section shall be deemed delivered:
(1) upon receipt if delivered by hand; (2) three (3) business days after mailing
if mailed by first class, registered, or certified mail; or (3) one (1) business
day after mailing or deposit with a nationally recognized overnight courier
service if delivered by express mail or nationally recognized overnight courier.
12.6 Time of the Essence. Time is of the essence for all purposes of this
agreement.
12.7 Michigan Law. The Loan is made and accepted in Michigan and this
agreement and all the other Loan Documents shall be construed in accordance with
the laws of Michigan.
12.8 Successors and Assigns. This agreement shall be binding upon and inure
to the benefit of the Borrower, the Bank and their heirs, successors and
assigns.
12.9 Conflicting Terms. If there is any conflict between any provision or
condition contained in this agreement and any provision or condition contained
in any of the other Loan Documents, the provision or condition contained in this
agreement shall control.
12.10 No Third-Party Beneficiary. The terms and conditions of this agreement
are for the benefit of the Borrower and the Bank only. No other party shall have
any right to rely on or derive any benefit from this agreement, nor shall any
third party be deemed a third-party beneficiary under this agreement.
12.11 Entire Agreement. Except as otherwise expressly provided in this
agreement, this agreement supersedes all prior agreements between the Bank and
the Borrower relating to the subject matter of this agreement and constitutes
the entire agreement of the Borrower and the Bank relating to its subject
matter.
12.12 Section Headings. Section headings are for convenience of reference
only and shall not affect the interpretation of the terms and conditions of this
agreement.
12.13 Assignment. The Borrower's rights under this agreement and the other
Loan Documents may not be assigned and any purported asignment in violation of
this provision shall vest no rights in the purported assignee. The Bank may at
any time assign its rights under this agreement or any of the other Loan
Documents.
12.14 Supremacy. To the extent that any Loan Document conflicts with the
terms of this agreement, the terms of this agreement shall control.
22
12.15 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, any of the other Loan
Documents any of the transactions contemplated by any of the Loan Documents, 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 such 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.
23
EXECUTED on the date first written above.
BORROWER: BANK:
G-P PLASTICS, INC. NBD BANK
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxxx
----------------------- ----------------------
Its: Treasurer Its: Vice President
----------------------- ----------------------
And: And:
---------------------- ----------------------
Its: Its:
---------------------- ----------------------
24
EXHIBIT A
Legal Description
Land located in the City of Xxxxxxxxx Xxxxx,
Xxxxxx xx Xxxxxxx, Xxxxx xx Xxxxxxxx:
Part of the West 1/2 of Southwest 1/4 of Section 00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx
Xxxx Township (Now the City of Rochester Hills), Oakiand County, Michigan:
Beginning at point distant South 00 degrees 34 minutes 30 seconds West 380.75
feet and North 87 degrees 46 minutes 00 seconds East 435.60 feet from the West
1/4 corner; thence North 380.00 feet; thence North 87 degrees 46 minutes 00
seconds East 839.56 feet; thence South 01 degrees 0.4 minutes 25 seconds East,
379.79 feet; thence South 87 degrees 46 minutes 00 seconds West, 846.74 feet to
beginning. Subject to an Easement for purposes of ingress and ingress in common
with certain designated others over the South 30 feet thereof, also subject to
and together with an Easement over the South 60 feet of the North 410 feet of
the West 1/2 of the Southwest fractional 1/4 of Section 30, for purposes of
ingress and egress in common with certain designated others..
(the 'Premises")
Commonly known as: 3910 Industrial
Tax Parcel Identification No. 00-00-000-000
FEDERAL EMERGENCY MANAGEMENT AGENCY O.M.B. No. 3067-0264
STANDARD FLOOD-HAZRD DETERMINATION Expires April 30, 1998
SECTION I-LOAN INFORMATION
1. LENDER NAME AND ADDRESS 2. COLLATERAL (Building/Mobile Home
Personal Property)
PROPERTY ADDRESS
(Legal Description may be attached)
NBD BANK-COMMERCIAL LENDING PLASTICS, G P
00000 XXXXXXXXXXXX XXX 0000 XXXXXXXXXX XX
XXXXXXXXXX, XX 00000 XXXXXXXXX XXXXX, XX 00000-0000
Req. by: XXXXX X XXXXXXXXXX Legal Description:
FZI CLIENT ID: NBDCL034
Parcel, Tax Id.Plat Map:
3.LENDER ID. NO. 4. LOAN IDENTIFIER 5. AMOUNT OF FLOOD
INSURANCE REQUIRED
N/A $
SECTION II
A.NATIONAL FLOOD INSURANCE PROGRAM (NFIP) COMMUNITY JURISDICTION
NFIP Community County(ies) State NFIP Community
Name Number
ROCHESTER HILLS (WAS XXXXXXX XX 000000
B.NATIOAL FLOOD INSURANCE PROGRAM (NFIP) DATA AFFECTING BUILDING/MOBILE HOME
NFIP Map Number or NFIP Map LOMA/LOMR Flood Zone No NFIP
Community-Panel Panel Map
Number (Community Effective/
name, if not the Revised Date
same as "A")
2604710015B 09/02/94 ---- ----- C
YES DATE
C. FEDERAL FLOOD INSURANCE AVAILABILITY (Check all that apply)
[X] Federal Flood insurance is available (community participates in NFIP)
[X] Regular Program [ ] Emergency Program of NFIP
[ ] Federal Flood insurance is not available because community is not
participating in the NFIP
[ ] Building/Mobile home is in a Coastal Barrier Resources Area (CBRA).
Federal Flood insurance may not be available
CBRA designation date:__________________________
D. DETERMINATION
IS BUILDING/MOBILE HOME IN SPECIAL FLOOD HAZARD AREA
(ZONES BEGINNING WITH LETTERS "A" OR "V")? [ ] YES [X] NO if neither, see
comments
If yes, flood insurance is required by the Flood Disaster Protection Act of
l973. See comments for further explanation
If no, flood insurance is not required by the Flood Disaster Protection Act of
1973.
E. COMMENTS (Optional):
REM # CERTIFICATE # RUSH LIFE OF LOAN MSA CENSUS TRACT:
0276 97110859186 Yes
County Code: State Code:
This determination is based on examining the NFIP map, any Federal Emergency
Management Agency revisions to it, and any other information needed to locate
the building/mobile home on the NFIP map.
F. PREPARER'S INFORMATION
NAME,ADDRESS,TELEPHONE NUMBER (If other than Lender) DATE OF DETERMINATION
Flood Zones, Inc.
Executive Plaza Office Building 11/06/97
14205 Burnet Rd., Suite 110
Austin, TX 00000 (000) 000-0000 FAX (000) 000-0000
