REVOLVING CREDIT NOTE
Prime Referenced Rate
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NOTE
DATE
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MATURITY
DATE
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JULY 13,
2009
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AUGUST 1,
2011
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On or before
the Maturity Date set forth above, FOR VALUE RECEIVED, the
undersigned promise(s) to pay to the order of COMERICA BANK (herein
called “Bank”), at any office of the Bank in the State
of Michigan, the principal sum of FOURTEEN DOLLARS
($14,000,000.00), or so much of said sum as has been advanced and
is then outstanding under this Note, together with interest thereon
at the Prime Referenced Rate plus the Applicable Margin.
This Note is a
note under which advances, repayments and re-advances may be made
from time to time, subject to the terms and conditions of this Note
and the Credit Agreement. AT NO TIME SHALL THE BANK BE UNDER ANY
OBLIGATION TO MAKE ANY ADVANCES TO THE UNDERSIGNED PURSUANT TO THIS
NOTE IF A DEFAULT OR EVENT WITH WHICH THE GIVING OF NOTICE OR
PASSAGE OF TIME OR BOTH WOULD CONSTITUTE A DEFAULT SHALL HAVE
OCCURRED AND BE COMTINUING.
Accrued and
unpaid interest on the unpaid principal balance outstanding
hereunder shall be payable monthly, in arrears, on the first
Business Day of each month, until maturity (whether as stated
herein, by acceleration, or otherwise). Interest accruing hereunder
shall be computed on the basis of a year of 360 days, and
shall be assessed for the actual number of days elapsed, and in
such computation, effect shall be given to any change in the
applicable interest rate as a result of any change in the Prime
Referenced Rate on the date of each such change.
From and after
the occurrence of any Default hereunder, and so long as any such
Default remains unremedied or uncured thereafter, the Indebtedness
outstanding under this Note shall bear interest at a per annum rate
of three percent (3%) above the otherwise applicable interest rate
hereunder, which interest shall be payable upon demand. In addition
to the foregoing, a late payment charge equal to five percent (5%)
of each late payment hereunder may be charged on any payment not
received by Bank within ten (10) calendar days after the
payment due date therefor, but acceptance of payment of any such
charge shall not constitute a waiver of any Default
hereunder.
In no event
shall the interest payable under this Note at any time exceed the
maximum rate permitted by law.
The amount and
date of each advance hereunder, its applicable interest rate and
the amount and date of any repayment shall be noted on Bank’s
records, which records shall be conclusive evidence thereof, absent
manifest error; provided, however, any failure by Bank to make any
such notation, or any error in any such notation, shall not relieve
the undersigned of its/their obligations to repay Bank all amounts
payable by the undersigned to Bank under or pursuant to this Note,
when due in accordance with the terms hereof.
In the event
that any payment under this Note becomes due and payable on any day
which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day, and, to the extent applicable,
interest shall continue to accrue and be payable thereon during
such extension at the rates set forth in this Note.
All payments to
be made by the undersigned to Bank under or pursuant to this Note
shall be in immediately available United States funds, without
setoff or counterclaim, and in the event that any payments
submitted hereunder are in funds not available until collected,
said payments shall continue to bear interest until
collected.
The undersigned
may prepay all or part of the outstanding balance of any
Indebtedness hereunder at any time without premium or penalty. Any
prepayment hereunder shall also be accompanied by the payment of
all accrued and unpaid interest on the amount so
prepaid.
If the adoption
after the date hereof, or any change after the date hereof in, any
applicable law, rule or regulation (whether domestic or foreign) of
any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by Bank with any request or directive (whether or not
having the force of law) made by any such authority, central bank
or comparable agency after the date hereof: (a) shall subject
Bank to any tax, duty or other charge with respect to this Note or
any Indebtedness hereunder, or shall change the basis of taxation
of payments
to Bank of the
principal of or interest under this Note or any other amounts due
under this Note in respect thereof (except for changes in the rate
of tax on the overall net income of Bank imposed by the
jurisdiction in which Bank’s principal executive office is
located); or (b) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by Bank, or shall impose on Bank or
the foreign exchange and interbank markets any other condition
affecting this Note or the Indebtedness hereunder; and the result
of any of the foregoing is to increase the cost to Bank of
maintaining any part of the Indebtedness hereunder or to reduce the
amount of any sum received or receivable by Bank under this Note by
an amount deemed by the Bank to be material, then the undersigned
shall pay to Bank, within fifteen (15) days of the
undersigned’s receipt of written notice from Bank demanding
such compensation, such additional amount or amounts as will
compensate Bank for such increased cost or reduction. A certificate
of Bank, prepared in good faith and in reasonable detail by Bank
and submitted by Bank to the undersigned, setting forth the basis
for determining such additional amount or amounts necessary to
compensate Bank shall be conclusive and binding for all purposes,
absent manifest error.
In the event
that any applicable law, treaty, rule or regulation (whether
domestic or foreign) now or hereafter in effect and whether or not
presently applicable to Bank, or any interpretation or
administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by Bank
with any guideline, request or directive of any such authority
(whether or not having the force of law), including any risk-based
capital guidelines, affects or would affect the amount of capital
required or expected to be maintained by Bank (or any corporation
controlling Bank), and Bank determines that the amount of such
capital is increased by or based upon the existence of any
obligations of Bank hereunder or the maintaining of any
Indebtedness hereunder, and such increase has the effect of
reducing the rate of return on Bank’s (or such controlling
corporation’s) capital as a consequence of such obligations
or the maintaining of such Indebtedness hereunder to a level below
that which Bank (or such controlling corporation) could have
achieved but for such circumstances (taking into consideration its
policies with respect to capital adequacy), then the undersigned
shall pay to Bank, within fifteen (15) days of the
undersigned’s receipt of written notice from Bank demanding
such compensation, additional amounts as are sufficient to
compensate Bank (or such controlling corporation) for any increase
in the amount of capital and reduced rate of return which Bank
reasonably determines to be allocable to the existence of any
obligations of the Bank hereunder or to maintaining any
Indebtedness hereunder. A certificate of Bank as to the amount of
such compensation, prepared in good faith and in reasonable detail
by the Bank and submitted by Bank to the undersigned, shall be
conclusive and binding for all purposes absent manifest
error.
This Note and
any other indebtedness and liabilities of any kind of the
undersigned (or any of them) to the Bank, and any and all
modifications, renewals or extensions of it, whether joint or
several, contingent or absolute, now existing or later arising, and
however evidenced and whether incurred voluntarily or
involuntarily, known or unknown, or originally payable to the Bank
or to a third party and subsequently acquired by Bank including,
without limitation, any late charges; loan fees or charges;
overdraft indebtedness; costs incurred by Bank in establishing,
determining, continuing or defending the validity or priority of
any security interest, pledg
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