TAX I.D. NO.____________________
PROMISSORY NOTE-DEMAND
(Eurodollar Rate)
$30,000,000 Detroit, Michigan
May 27, 1999
ON DEMAND, FOR VALUE RECEIVED, the undersigned (herein called "Borrowers"),
jointly and severally promise to pay to the order of COMERICA BANK, a Michigan
banking corporation (herein called "Bank"), in lawful currency of the United
States of America, the principal sum of THIRTY MILLION DOLLARS ($30,000,000), or
so much of said sum as has been advanced and is then outstanding under this
Note, together with interest thereon as hereinafter set forth.
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. At no
time shall the Bank be under any obligation to make any Advances to the
Borrowers pursuant to this Note (notwithstanding anything expressed or implied
in this Note or elsewhere to the contrary, including without limit if the Bank
supplies the Borrowers with a borrowing formula) and the Bank, at any time and
from time to time, without notice, and in its sole discretion, may refuse to
make Advances or re-advances to the Borrowers without incurring any liability
due to this refusal and without affecting the Borrowers' liability under this
Note for any and all amounts advanced.
Each of the Advances made hereunder shall bear interest at the
Eurodollar-based Rate or the Prime-based Rate, as elected by Borrowers or as
otherwise determined under this Note.
Accrued and unpaid interest on the unpaid balance of each outstanding
Prime-based Advance shall be payable monthly, in arrears, commencing on June 1,
1999, and on the first Business Day of each succeeding month thereafter, until
maturity (whether as stated herein, by acceleration, or otherwise). Interest
accruing at the Prime-based Rate 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-based Rate on the date of each such
change in the Prime-based Rate.
Accrued and unpaid interest on each Eurodollar-based Advance shall be
payable on the last day of the Interest Period applicable thereto (unless sooner
accelerated in accordance with the terms of this Note); provided, however, if
such Interest Period in respect of any such Eurodollar-based Advance is more
than three (3) months, interest thereon shall also be payable at intervals of
three (3) months from the date of such Advance. Interest accruing at the
Eurodollar-based Rate shall be computed on the basis of a 360 day year and shall
be assessed for the actual number of days elapsed from the first day of the
Interest Period applicable thereto but not including the last day thereof.
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, which interest shall
be payable upon demand.
The amount and date of each Advance, its Applicable Interest Rate, its
Interest Period, if any, 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 Borrowers of
their obligations to repay Bank all amounts payable by Borrowers to Bank under
or pursuant to this Note, when due in accordance with the terms hereof.
Borrowers may request an Advance hereunder, including the refunding of an
outstanding Advance as the same type of Advance or the conversion of an
outstanding Advance as the same type of Advance, upon the delivery to Bank of a
Request for Advance executed by an authorized officer of Borrowers, subject to
the following:
(a) no Default, and no condition or event which, with the giving of notice
or the running of time, or both, would constitute a Default, shall
have occurred and be continuing or exist under this Note;
(b) each such Request for Advance shall set forth the information required
on the Request for Advance form annexed hereto as Exhibit "A";
(c) each such Request for Advance shall be delivered to Bank by 11:00 a.m.
(Detroit, Michigan time) two (2) Business Days prior to the proposed
date of Advance in the case of Eurodollar-based Advances, and by 1:00
p.m. (Detroit, Michigan time) on the proposed date of Advance in the
case of Prime-based Advances;
(d) the principal amount of each Eurodollar-based Advance shall be at
least Five Hundred Thousand Dollars ($500,000);
(e) the proposed date of any refunding of any outstanding Eurodollar-based
Advance as another Eurodollar-based Advance or the conversion of any
outstanding Eurodollar-based Advance to a Prime-based Advance shall
only be on the last day of the Interest Period applicable to such
outstanding Eurodollar-based Advance; and
(f) a Request for Advance, once delivered to Bank, shall not be revocable
by Borrowers; provided, however, as aforesaid, Bank shall not be
obligated to make any Advance under this Note.
If, as to any outstanding Eurodollar-based Advance, Bank shall not receive
a timely Request for Advance in accordance with the foregoing requesting the
refunding of such Advance as a Eurodollar-based Advance, the principal amount of
such Advance which is not then repaid shall be automatically converted to a
Prime-based Advance on the last day of the Interest Period applicable thereto,
subject in all respects to the terms and conditions of this Note. The foregoing
shall not in any way whatsoever limit or otherwise affect any of Bank's rights
or remedies under this Note upon the occurrence of any Default hereunder, or any
condition or event which, with the giving of notice or the running of time, or
both, would constitute a Default.
Borrowers may prepay all or part of the outstanding balance of any
Prime-based Advance under this Note at any time. Borrowers may prepay all or
part of any Eurodollar-based Advance on the last day of the Interest Period
applicable thereto, provided that the aggregate balance of Eurodollar-based
Advances outstanding after such prepayment shall be at least Five Hundred
Thousand Dollars ($500,000), and the unpaid portion of such Eurodollar-based
Advance which is then refunded or converted shall be subject to the limitations
set forth in this Note. Any prepayment made in accordance with this paragraph
shall be without premium or penalty. Any other prepayment shall be otherwise
restricted by and subject to the terms of this Note.
Subject to the definition of an "Interest Period" hereunder, 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 Borrowers to Bank under or pursuant to this Note
shall be in immediately available 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.
Borrowers hereby authorize Bank to charge any account of Borrowers with Bank for
all sums due hereunder when due in accordance with the terms hereof.
If Borrowers make any payment of principal with respect to any
Eurodollar-based Advance on any day other than the last day of the Interest
Period applicable thereto (whether voluntarily, by acceleration, demand, or
otherwise), or if Borrowers fail to borrow any Eurodollar-based Advance after
notice has been given by Borrowers to Bank in accordance with the terms of this
Note requesting such Advance, or if Borrowers fail to make any payment of
principal or interest in respect of a Eurodollar-based Advance when due,
Borrowers shall reimburse Bank, on demand, for any resulting loss, cost or
expense incurred by Bank as a result thereof, including, without limitation, any
such loss, cost or expense incurred in obtaining, liquidating, employing or
redeploying deposits from third parties, whether or not Bank shall have funded
or committed to fund such Advance. Such amount payable by Borrowers to Bank may
include, without limitation, an amount equal to the excess, if any, of (a) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, refunded or converted, for the period from the date of such prepayment
or of such failure to borrow, refund or convert, through the last day of the
relevant Interest Period, at the applicable rate of interest for said Advance(s)
provided under this Note, over (b) the amount of interest (as reasonably
determined by Bank) which would have accrued to Bank on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. Calculation of any amounts payable to Bank under
this paragraph shall be made as though Bank shall have actually funded or
committed to fund the relevant Eurodollar-based Advance through the purchase of
an underlying deposit in an amount equal to the amount of such Advance and
having a maturity comparable to the relevant Interest Period; provided, however,
that Bank may fund any Eurodollar-based Advance in any manner it deems fit and
the foregoing assumptions shall be utilized only for the purpose of the
calculation of amounts payable under this paragraph. Upon the written request of
Borrowers, Bank shall deliver to Borrowers a certificate setting forth the basis
for determining such losses, costs and expenses, which certificate shall be
conclusively presumed correct, absent manifest error.
For any Eurodollar-based Advance, if Bank shall designate a Eurodollar
Lending Office which maintains books separate from those of the rest of Bank,
Bank shall have the option of maintaining and carrying such Advance on the books
of such Eurodollar Lending Office.
If, with respect to any Interest Period, Bank determines that, (a) by
reason of circumstances affecting the foreign exchange and interbank markets
generally, deposits in Eurodollars in the applicable amounts or for the relative
maturities are not being offered to Bank for such Interest Period, or (b) if the
rate of interest referred to in the definition of "Eurodollar-based Rate" upon
the basis of which the rate of interest for a Eurodollar-based Advance is to be
determined does not accurately or fairly cover or reflect the cost to Bank of
making or maintaining a Eurodollar-based Advance hereunder, then Bank shall
forthwith give notice thereof to the Borrowers. Thereafter, until Bank notifies
Borrowers that such conditions or circumstances no longer exist, the right of
Borrowers to request a Eurodollar-based Advance and to convert an Advance to or
refund an Advance as a Eurodollar-based Advance shall be suspended.
If, after the date hereof, the introduction of, or any change in, any
applicable law, rule or regulation or in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by Bank (or its Eurodollar Lending Office)
with any request or directive (whether or not having the force of law) of any
such authority, shall make it unlawful or impossible for the Bank (or its
Eurodollar Lending Office) to make or maintain any Advance with interest at the
Eurodollar-based Rate, Bank shall forthwith give notice thereof to Borrowers.
Thereafter, (a) until Bank notifies Borrowers that such conditions or
circumstances no longer exist, the right of Borrowers to request a
Eurodollar-based Advance and to convert an Advance to or refund an Advance as a
Eurodollar-based Advance shall be suspended, and thereafter, Borrowers may
select only the Prime-based Rate as the Applicable Interest Rate hereunder, and
(b) if Bank may not lawfully continue to maintain an outstanding Advance to the
end of the then current Interest Period applicable thereto, the Prime-based Rate
shall be the Applicable Interest Rate for the remainder of such Interest Period
with respect to such outstanding Advance.
If the adoption after the date hereof, or any change after the date hereof
in, any applicable law, rule or regulation of any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Bank (or its Eurodollar Lending Office)
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 (or its Eurodollar Lending Office) to any tax, duty
or other charge with respect to this Note or any Advance hereunder or
shall change the basis of taxation of payments to Bank (or its
Eurodollar Lending Office) of the principal of or interest on any
Advance 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 or its Eurodollar Lending Office imposed by the jurisdiction in
which Bank's principal executive office or Eurodollar Lending 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 its Eurodollar Lending Office) or shall impose on
Bank (or its Eurodollar Lending Office) or the foreign exchange and
interbank markets any other condition affecting any Advance under this
Note;
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 Borrowers shall pay to Bank, within fifteen (15)
days of Borrowers' 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 Borrowers, 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 computation. Bank agrees that, as promptly as practical after
it becomes aware of the occurrence of any event or the existence of a condition
that will cause Bank to be entitled to compensation under this paragraph, it
will, to the extent not inconsistent with Bank's internal policies, use
reasonable efforts to make, fund or maintain any affected Eurodollar-based
Advance through another lending office of Bank if as a result thereof the
additional monies which would otherwise be required to be paid in respect of
such Eurodollar-based Advance would be materially reduced and if, as determined
by Bank, in its reasonable discretion, the making, funding or maintaining of
such Eurodollar-based Advance through such other lending office would not
materially adversely affect such Advance or Bank. Borrowers shall pay all
reasonable expenses incurred by Bank in utilizing another lending office
pursuant to this paragraph.
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 making or
maintaining any Advances 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 making or maintaining of such Advances
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 Borrowers shall pay to Bank,
within fifteen (15) days of Borrowers' 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 the making or
maintaining any Advances 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 Borrowers, shall be conclusive and binding for all
purposes absent manifest error in computation. Bank agrees that, as promptly as
practical after it becomes aware of the occurrence of any event or the existence
of a condition that will cause Bank to be entitled to compensation under this
paragraph, it will, to the extent not inconsistent with Bank's internal
policies, use reasonable efforts to make, fund or maintain any affected
Eurodollar-based Advance through another lending office of Bank if as a result
thereof the additional monies which would otherwise be required to be paid in
respect of such Eurodollar-based Advance would be materially reduced and if, as
determined by Bank, in its reasonable discretion, the making, funding or
maintaining of such Eurodollar-based Advance through such other lending office
would not materially adversely affect such Advance or Bank. Borrowers shall pay
all reasonable expenses incurred by Bank in utilizing another lending office
pursuant to this paragraph.
The Borrowers acknowledge that this Note matures upon issuance, and that
the Bank, at any time, without notice, and without reason, may demand that this
Note be immediately paid in full. The demand nature of this Note shall not be
deemed modified by reference to a Default in this Note or in any agreement to a
default by the Borrowers or to the occurrence of an event of default
(collectively an "Event of Default"). For purposes of this Note, to the extent
there is reference to an Event of Default this reference is for the purpose of
permitting the Bank to accelerate indebtedness not on a demand basis and to
receive interest at the default rate provided in the document evidencing the
relevant indebtedness. It is expressly agreed that the Bank may exercise its
demand rights under this Note whether or not an Event of Default has occurred
and regardless of whether an Interest Period is in effect. The Bank, with or
without reason and without notice, may from time to time make demand for partial
payments under this Note and these demands shall not preclude the Bank from
demanding at any time that this Note be immediately paid in full. All payments
under this Note shall be in immediately available United States funds, without
setoff or counterclaim.
This Note and any other indebtedness and liabilities of any kind of
Borrowers to Bank, and any and all modifications, renewals or extensions
thereof, whether joint or several, contingent or absolute, direct or indirect,
now existing or later arising, and however evidenced (collectively the
"Indebtedness"), are secured by and Bank is granted a security interest in all
items at any time deposited in any account of Borrowers with Bank and by all
proceeds of these items (cash or otherwise), all account balances of Borrowers
from time to time with Bank, by all property of Borrowers from time to time in
the possession of Bank, and by any other collateral, rights and properties
described in each and every mortgage, security agreement, pledge, assignment and
other security or collateral agreement which has been, or will at any time(s)
later be, executed by Borrowers or others to or for the benefit of Bank
(collectively the "Collateral").
If Borrowers or any guarantor under a guaranty of all or part of the
Indebtedness ("guarantor") (a) fail(s) to pay this Note, or any part thereof, or
any of the Indebtedness when due, by maturity, acceleration or otherwise, or
fail(s) to pay any Indebtedness owing on a demand basis upon demand; or (b)
fail(s) to comply with any of the terms or provisions of any agreement between
Borrowers or any guarantor and Bank; or (c) become(s) the subject of a voluntary
or involuntary proceeding in bankruptcy )(and if it is an involuntary
proceeding, it is not dismissed within sixty (60) days of the commencement
thereof), or a reorganization, arrangement or creditor composition proceeding,
cease(s) doing business as a going concern, or is the subject of a dissolution,
merger or consolidation; or (d) if any warranty or representation made by
Borrowers or any guarantor in connection with this Note or any of the
Indebtedness shall be discovered to have been untrue or incomplete in any
material respect when made; (e) or if there is any termination, notice of
termination, or breach (which the Bank in its sole and absolute discretion deems
material) of any guaranty, pledge, collateral assignment or subordination
agreement relating to all or any part of the Indebtedness; or (f) if there is
any failure by Borrowers or any guarantor to pay, when due, any of its
indebtedness (other than to the Bank) in an amount exceeding $100,000 in the
aggregate or in the observance or performance of any term, covenant or condition
in any document evidencing, securing or relating to such indebtedness; or (g) if
there is filed or issued a levy or writ of attachment or garnishment or other
like judicial process upon any Borrower or any guarantor or any of the
Collateral, including, without limit, any accounts of any Borrower or any
guarantor with Bank, then Bank, upon the occurrence and at any time during the
continuance or existence of any of these conditions or events (each an "Event of
Default"), may at its option and without prior notice to any Borrower, declare
any or all of the Indebtedness to be immediately due and payable
(notwithstanding any provisions contained in the evidence of it to the
contrary), sell or liquidate all or any portion of the Collateral, set off
against the Indebtedness any amounts owing by Bank to any Borrower, and exercise
any one or more of the rights and remedies granted to Bank by any agreement with
Borrowers given to it under applicable law, or otherwise.
Borrowers waive presentment, demand, protest, notice of dishonor, notice of
demand or intent to demand, notice of acceleration or intent to accelerate, and
all other notices, and agrees that no extension or indulgence to Borrowers, or
release, substitution or nonenforcement of any security, or release or
substitution of any guarantor or any other party, whether with or without
notice, shall affect the obligations of Borrowers. Borrowers waive all defenses
or right to discharge available under Section 3-605 of the Uniform Commercial
Code and waives all other suretyship defenses or right to discharge. Borrowers
agree that Bank has the right to sell, assign, or grant participations, or any
interest, in any or all of the Indebtedness, and that, in connection with such
right, but without limiting its ability to make other disclosures to the full
extent allowable, Bank may disclose all documents and information which the Bank
now or later has relating to Borrowers and the Indebtedness.
Borrowers agree to reimburse Bank, or any other holder or owner of this
Note, for any and all reasonable costs and expenses (including, without limit,
court costs, legal expenses and reasonable attorneys' fees, whether inside or
outside counsel is used, whether or not suit is instituted, and, if suit is
instituted, whether at the trial court level, appellate level, in a bankruptcy,
probate or administrative proceeding or otherwise) incurred in collecting or
attempting to collect this Note or the Indebtedness or incurred in any other
matter or proceeding relating to this Note or the Indebtedness.
Borrowers acknowledge and agree that there are no contrary agreements, oral
or written, establishing a term of this Note and agrees that the terms and
conditions of this Note may not be amended, waived or modified except in a
writing signed by a duly authorized officer of Bank expressly stating that the
writing constitutes an amendment, waiver or modification of the terms of this
Note. If any provision of this Note is unenforceable in whole or part for any
reason, the remaining provisions shall continue to be effective. THIS NOTE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
MICHIGAN. All extensions of credit under this Note shall be made from Bank's
principal office located in Detroit, Michigan.
This Note shall bind Borrowers and Borrowers' respective successors and
assigns.
For the purposes of this Note, the following terms have the following
meanings:
"Advance" means a borrowing requested by Borrowers and made by Bank under
this Note, including any refunding of an outstanding Advance as the same type of
Advance or the conversion of any such outstanding Advance to another type of
Advance, and shall include a Eurodollar-based Advance and a Prime-based Advance.
"Applicable Interest Rate" means the Eurodollar-based Rate or the
Prime-based Rate, as selected by Borrowers from time to time or as otherwise
determined in accordance with the terms and conditions of this Note.
"Business Day" means any day, other than a Saturday, Sunday or holiday, on
which Bank is open for all or substantially all of its domestic and
international business (including dealings in foreign exchange) in Detroit,
Michigan.
"Eurodollar-based Advance" means an Advance which bears interest at the
Eurodollar-based Rate.
"Eurodollar-based Rate" means a per annum interest rate which is equal to
the sum of three percent (3%), plus the quotient of:
(a) the per annum interest rate at which Bank's Eurodollar Lending Office
offers dollar deposits to prime banks in the eurodollar market in an
amount comparable to the relevant Eurodollar-based Advance and for a
period equal to the relevant Interest Period at or about 11:00 a.m.
(Detroit, Michigan time) (or as soon thereafter as practical) two (2)
Business Days prior to the first day of such Interest Period;
divided by
(b) a percentage equal to 100% minus the maximum rate during such Interest
Period at which Bank is required to maintain reserves on
"Euro-currency Liabilities" as defined in and pursuant to Regulation D
of the Board of Governors of the Federal Reserve System or, if such
regulation or definition is modified, and as long as Bank is required
to maintain reserves against a category of liabilities which includes
eurodollar deposits or includes a category of assets which includes
eurodollar loans, the rate at which such reserves are required to be
maintained on such category.
"Eurodollar Lending Office" means Bank's office located in the Cayman
Islands, British West Indies, or such other branch of Bank, domestic or foreign,
as it may hereafter designate as its Eurodollar Lending Office by notice to
Borrowers.
"Interest Period" means a period of one (1) month, two (2) months, three
(3) or six (6) months (or any lesser or greater number of days agreed to in
advance by Borrowers and Bank), as selected by Borrowers pursuant to the terms
of this Note, commencing on the day a Eurodollar-based Advance is made, provided
that (a) any Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day, except that
if the next succeeding Business Day falls in another calendar month, the
Interest Period shall end on the next preceding Business Day, and when an
Interest Period begins on a day which has no numerically corresponding day in
the calendar month during which such Interest Period is to end, it shall end on
the last Business Day of such calendar month.
"Prime-based Advance" shall mean an Advance which bears interest at the
Prime-based Rate.
"Prime Rate" means the per annum interest rate established by Bank as its
prime rate for its borrowers, as such rate may vary from time to time, which
rate is not necessarily the lowest rate on loans made by Bank at any such time.
"Prime-based Rate" shall mean a per annum interest rate which is equal to
the sum of one half of one percent (1/2%) plus the greater of (i) the Prime
Rate; or (ii) the rate of interest equal to the sum of (a) one percent (1%) and
(b) the rate of interest equal to the average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers (the "Overnight Rates"), as published by the Federal
Reserve Bank of New York, or, if the overnight Rates are not so published for
any day, the average of the quotations for the Overnight Rates received by Bank
from three (3) Federal funds brokers of recognized standing selected by Bank, as
the same may be changed from time to time.
"Request for Advance" means a Request for Advance issued by Borrowers under
this Note in the form annexed to this Note as Exhibit "A".
Borrowers agree to make all payments to Bank of any and all amounts due and
owing by Borrowers to Bank hereunder, including, without limitation, the payment
of principal and interest on any Advance, on the date provided for such payment,
in United States Dollars in immediately available funds, at the office of Bank
located at Comerica Tower at Detroit Center, 500 Woodward Avenue, Detroit,
Michigan 48226, or such other address as Bank may notify Borrowers in writing.
No delay or failure of Bank in exercising any right, power or privilege
hereunder shall affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof, or the exercise
of any other power, right or privilege. The rights of Bank under this Agreement
are cumulative and not exclusive of any right or remedies which Bank would
otherwise have, whether by other instruments or by law.
The obligations of the Borrowers under this Note are the joint and several
obligations of the Borrowers; provided, however, with respect to Brake, Axle and
Tandem Company Canada Inc., its obligations shall be several and not joint with
any other Borrower.
BORROWERS AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS HEREUNDER.
JPE, INC.
By: /s/ Richard R. Chrysler
-----------------------------------
Richard R. Chrysler
Its: President and Chief Executive Officer
DAYTON PARTS, INC.
By: /s/ Richard R. Chrysler
-----------------------------------
Richard R. Chrysler
Its: Chief Executive Officer
STARBOARD INDUSTRIES, INC.
By: /s/ Richard R. Chrysler
----------------------------------
Richard R. Chrysler
Its: President
PLASTIC TRIM, INC.
By: /s/ Richard R. Chrysler
---------------------------------
Richard R. Chrysler
Its: President
JPE FINISHING, INC.
By: /s/ Richard R. Chrysler
--------------------------------
Richard R. Chrysler
Its: President
BRAKE, AXLE AND TANDEM COMPANY CANADA INC.
By: /s/ Richard R. Chrysler
--------------------------------
Richard R. Chrysler
Its: Chief Executive Officer