Exhibit 10.41
This Note amends, restates, and
supersedes, without satisfaction or novation, that certain
promissory note
made in favor of LaSalle Bank
Midwest National Association, the successor by merger to which is
Bank of
America, N.A., dated
December 16, 2005, as amended, in the original principal
amount of $17,500,000.00.
AMENDED AND RESTATED PROMISSORY
NOTE
Line of Credit
BBA LIBOR Daily Floating Rate
$10,000,000.00
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Due Date:
December 1, 2010
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Dated: December
, 2008
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FOR VALUE RECEIVED
, the undersigned, jointly and
severally if more than one maker (“Borrower”),
promise(s) to pay to the order of Bank of America, N.A., a national
banking association (“Bank”), at 2600 West Big Beaver
Road, Troy, Michigan 48084, or at such other place as the Bank may
designate in writing, on or before the Due Date, the principal sum
of Ten Million Dollars ($10,000,000.00), or such lesser amount as
may from time to time be outstanding by reason of having been
advanced hereunder, plus interest as hereinafter provided on all
amounts outstanding hereunder, all in lawful money of the United
States of America.
Interest Rate
. The principal outstanding under this Promissory
Note (“Note”) from time to time shall bear interest on
a basis of a year of 360 days for the actual number of days amounts
are outstanding hereunder, at a rate per annum (“Effective
Interest Rate”) equal to 125 basis points (1.25%) over
the BBA LIBOR Daily Floating Rate (“BBA LIBOR-Based
Rate”). The BBA LIBOR-Based Rate shall automatically increase
or decrease when and to the extent that the BBA LIBOR Daily
Floating Rate shall increase or decrease.
Advances
. This Note is given as evidence of any and all
indebtedness of the Borrower to the Bank arising as a result of
advances or other credit which may be made under this Note from
time to time. The principal amount of indebtedness owing pursuant
to this Note shall change from time to time, decreasing in an
amount equal to any and all payments of principal made by the
Borrower and increasing by an amount equal to any and all advances
made by the Bank to the Borrower pursuant to the terms hereof. The
books and records of the Bank shall be conclusive evidence of the
amount of principal and interest owing hereunder at any time. From
time to time, the Bank shall furnish Borrower a statement of the
amount of principal and interest owing or outstanding hereunder,
which statement shall be deemed to be correct, accepted by, and
binding upon Borrower, unless the Bank receives a written statement
of exceptions from Borrower within ten (10) days after such
statement has been furnished.
Payment
. Accrued interest shall be payable beginning on
January 1, 2009, and continuing on the same day of each
consecutive month thereafter. The principal balance and all accrued
interest shall be due on the Due Date. All payments made hereunder
shall be applied first against costs and expenses required to be
paid hereunder, then against accrued interest to the extent thereof
and the balance shall be applied against the outstanding principal
amount hereof.
BBA LIBOR
Unavailability . If
the Bank determines in good faith (which determination shall be
conclusive, absent manifest error) that (i) United States
dollar deposits of sufficient amount and maturity for funding the
loan evidenced by this Note are not available to the Bank in the
London Interbank Eurodollar market in the ordinary course of
business, or (ii) by reason of circumstances affecting the
London Interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the BBA LIBOR-Based Rate, the Bank shall
promptly notify the Borrower thereof and, so long as the foregoing
conditions continue, the BBA LIBOR-Based Rate shall no longer be
available hereunder and the principal outstanding under this Note
shall bear interest at the Bank’s Prime Rate (the
“Prime-Based Rate”). The Prime-Based Rate shall
automatically increase or decrease when and to the extent that the
Bank’s Prime Rate shall have been increased or
decreased.
1
Regulatory
Change . In
addition, if, after the date hereof, a Regulatory Change shall, in
the reasonable determination of the Bank, make it unlawful for the
Bank to make or maintain the loan evidenced by this Note at a rate
based on the BBA LIBOR-Based Rate, the Bank shall promptly notify
the Borrower and the BBA LIBOR-Based Rate shall no longer be
available hereunder. Thereafter, the principal outstanding under
this Note shall bear interest at the Prime-Based Rate.
Indemnity
. If any Regulatory Change (whether or not having
the force of law) shall (a) impose, modify or deem applicable
any assessment, reserve, special deposit or similar requirement
against assets held by, or deposits in or for the account of or
loans by, or any other acquisition of funds or disbursements by,
the Bank; (b) subject the Bank or the loan evidenced by this
Note to any tax, duty, charge, stamp tax or fee or change the basis
of taxation of payments to the Bank of principal or interest due
from the Borrower to the Bank hereunder (other than a change in the
taxation of the overall net income of the Bank); or (c) impose
on the Bank any other condition regarding the loan evidenced by
this Note or the Bank’s funding thereof, and the Bank shall
determine (which determination shall be conclusive, absent manifest
error) that the result of the foregoing is to increase the cost to
the Bank of making or maintaining the loan evidenced by this Note
at a rate based on the BBA LIBOR-Based Rate or to reduce the amount
of principal or interest received by the Bank hereunder, then the
Borrower shall pay to the Bank, on demand, such additional amounts
as the Bank shall, from time to time, determine are sufficient to
compensate and indemnify the Bank for such increased cost or
reduced amount.
Additional
Definitions . The
following terms, as used in this Note, shall have the
follo