EXHIBIT 10.2
COMMERCIAL REVOLVING NOTE
Date: November ___, 2005 Customer No. ______________
Due Date: November 15, 2007 Amount: $6,000,000 Note No. __________________
Promise to Pay. The undersigned promise(s) to pay to the order of
CHEMICAL BANK SHORELINE (the "Bank"), at any office of the Bank in the State of
Michigan, on the due date above, in U.S. Dollars, all sums advanced by the Bank
hereunder and to pay interest on the unpaid balance at the Note Rate (as defined
below) until either an Event of Default (as defined below) occurs or this Note
becomes due, whether by default, demand or maturity, and thereafter at a rate
equal to the Note Rate plus 2% per annum. In no event shall the interest rate
exceed the maximum rate allowed by law. Accrued interest shall be paid on the
15th day of each month beginning November 15, 2005.
Interest Rate (Bank Prime). The "Note Rate" shall mean the "Applicable
Margin" as defined in the Loan Agreement of even date among the Bank, the
undersigned and Segmentz, Inc., as amended (the "Loan Agreement") plus the
annual rate of interest designated by the Bank from time to time as its "Prime
Rate" which may be changed at any time by the Bank and which may not be the
lowest rate charged by the Bank to any of its customers. Each change in the
Applicable Margin and the Prime Rate will immediately change the Note Rate.
Interest shall be calculated for the actual number of days the principal is
outstanding on the basis of a 360 day year.
Late Charge. The Bank may charge a late charge equal to five percent
(5%) of each interest installment which is received by the Bank more than ten
(10) days after due. Acceptance of the late charge shall not waive any default
under this Note. All payments hereunder shall be in immediately available United
States funds, without setoff or counterclaim.
Advances. Subject to the terms of the Loan Agreement, this is a Note
under which the Bank shall advance sums from time to time to the undersigned and
such sums may be prepaid by the undersigned from time to time; provided that the
aggregate unpaid balance shall at no time exceed the face amount of this Note.
The principal amount payable hereunder shall be the sum of all advances made by
the Bank to or at the request of the undersigned, less principal payments
actually received in cash by the Bank. The books and records of the Bank shall
be the best evidence of the principal amount and the unpaid interest owing at
any time hereunder and shall be conclusive absent manifest error. No interest
shall accrue hereunder until the date of the first advance made by the Bank.
Thereafter, interest on all advances shall accrue and be computed on the
principal balance outstanding from time to time until paid in full. It is
expressly understood and agreed by the undersigned that at no time shall the
Bank be under any obligation to make any advances to the undersigned pursuant to
this Note unless the undersigned has complied with all of the terms of the Loan
Agreement. If any payment applied by the Bank to this Note is subsequently set
aside, recovered, rescinded or otherwise required to be returned or disgorged by
the Bank for any reason (pursuant to bankruptcy proceedings, fraudulent
conveyance statutes, or otherwise), this Note shall be deemed to have continued
in existence, notwithstanding the application, and this Note shall be
enforceable as to the amount of such payment as fully as if the Bank had not
received and applied the payment.
Security. This Note and any other indebtedness and liabilities of any
of the undersigned to the Bank, and all renewals or extensions thereof, whether
joint or several, contingent or absolute, now existing or hereafter arising, and
howsoever evidenced (herein collectively called the "Liabilities") are secured
by all items now or hereafter deposited in any account of any of the undersigned
and any guarantor with the Bank and by all proceeds of such items (cash or
otherwise), by all account balances of any of the undersigned and any guarantor
now or hereafter with the Bank, by all property of any of the undersigned and
any guarantor now or hereafter in the possession of the 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 hereafter be, executed by any of the undersigned or any
guarantor to or for the benefit of the Bank (all herein collectively called the
"Collateral").
Representations. The undersigned represents: (a) that the execution and
delivery of this Note and the performance of the obligations it imposes do not
violate any law, conflict with any agreement by which it is bound, or
require the consent or approval of any governmental authority or any third
party; (b) that this Note is a valid and binding agreement, enforceable
according to its terms; and (c) that all balance sheets, profit and loss
statements, and other financial statements furnished to the Bank are accurate
and fairly reflect the financial condition of the organizations and persons to
which they apply on their effective dates, including contingent liabilities of
every type, which financial condition has not changed materially and adversely
since those dates. The undersigned (if not a natural person), further
represents: (a) that it is duly organized, existing and in good standing
pursuant to the laws under which it is organized; and (b) that the execution and
delivery of this Note and the performance of the obligations it imposes (i) are
within its powers and have been duly authorized by all necessary action of its
governing body; and (ii) do not contravene the terms of its articles of
incorporation or organization, its by laws, or any partnership, operating or
other agreement governing its affairs.
Default. Occurrence of any of the "Events of Default" as defined in the
Loan Agreement shall constitute an "Event of Default" under this Note.
Remedies on Default. Upon occurrence of an Event of Default: (a) this
Note and all of the other Liabilities (regardless of any contrary terms of such
Liabilities) shall, at the Bank's option, be immediately due and payable without
demand or notice; (b) the Bank may exercise any right and remedies granted to it
by this Note, any of the Liabilities or any present or future agreement with any
of the undersigned or any guarantor, or otherwise available to the Bank under
applicable law; (c) the Bank may exercise its right of set-off and/or take
possession of and dispose of any of the Collateral. The undersigned and all
guarantors agree to reimburse the holder or owner of this Note upon demand for
any and all costs and expenses (including without limit, court costs, legal
expenses and reasonable attorney 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 incurred in any other matter or proceeding relating to this
Note. (including participating or taking action in any bankruptcy or other
insolvency proceeding of the undersigned or any guarantor).
WAIVERS. Each of the undersigned and every guarantor severally waives
demand, presentment, notice of dishonor, protest, notice of demand or intent to
demand, notice of acceleration or intent to accelerate, and all other notices,
and consents to: (a) any extension or postponement of the time for payment of
this Note; (b) any renewal of this Note or indulgences granted by the Bank with
respect to enforcement of its terms; (c) any substitution, exchange or release
of all or any part of the Collateral; (d) the addition, substitution or release
of any maker or guarantor; and (e) the election by the Bank not to seek
enforcement against any person or entity which may be liable for payment of this
Note. The undersigned waives all defenses or right to discharge available under
Section 3-605 of the Michigan Uniform Commercial Code and waives all other
suretyship defenses or right to discharge.
Information Sharing. The Bank may provide, without any limitation
whatsoever, any information or knowledge the Bank may have about the undersigned
or any matter relating to this Note and any related documents to the Bank's
parent, subsidiaries and affiliates and their successors, or to any one or more
purchasers or potential purchasers of this Note or any related documents, and
the undersigned waives any right to privacy the undersigned may have with
respect to such matters. The undersigned agree that the Bank may at any time
sell, assign or transfer one or more interests or participations in all or any
part of its rights or obligations under this Note to one or more purchasers
whether or not related to the Bank.
Miscellaneous. "Guarantor" as used herein means any person or entity
endorsing or guaranteeing, or granting security for this Note in any manner. The
obligations of the undersigned and all guarantors under this Note shall be joint
and several; and each of the undersigned and each guarantor shall be
individually liable for all amounts due under this Note. All persons signing
this Note on behalf of a corporation, partnership, trust or other entity
warrants to the Bank that they are duly and properly authorized to execute this
Note and that the proceeds will be used by the entity for business purposes.
Nothing in this Note shall waive or restrict any right of the Bank granted in
any other document or by law. No delay on the part of the Bank in the exercise
of any right or remedy shall operate as a waiver. No single or partial exercise
by the Bank of any right or remedy shall preclude any other future exercise of
that right or remedy or the exercise of any
2
other right or remedy. The terms and conditions of this Note may not be amended,
waived or modified except in a writing signed by an officer of the Bank
expressly stating that the writing constitutes an amendment, waiver, or
modification of the terms of this Note. A waiver on one occasion shall not be
construed as a waiver of that term on any future occasion. Acceptance of partial
or late payments owing on this Note at any time shall not be deemed a waiver of
any default. All rights, remedies and security granted to the Bank herein are
cumulative and in addition to other rights, remedies or security which may be
granted elsewhere or by law. Whenever possible, each provision of this Note
shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision hereof shall be declared invalid or illegal it
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of the provision or the remaining provisions of this
Note. Any reference to the Bank shall include any holder of this Note and any
holder shall succeed to the Bank's rights. This Note shall bind the respective
heirs, personal representatives, successors and assigns of the undersigned and
all guarantors. The undersigned and all guarantors agree that any action against
them for enforcement of this Note may be brought by the Bank in any federal,
municipal or state court in Michigan, having jurisdiction of the subject matter;
they consent to personal jurisdiction over them by such courts; and they consent
to venue in such courts. This Note has been executed in Michigan and is governed
by Michigan law. The undersigned and all guarantors agree to reimburse the Bank
for all expenses incurred by the Bank in its investigation, processing, and
preparation for closing of the loan evidenced by this Note including reasonable
attorneys' fees and costs, title insurance fees, survey fees, appraisal fees,
and other out-of-pocket expenses.
WAIVER OF SPECIAL DAMAGES. THE UNDERSIGNED WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR
RECOVER FROM THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
WAIVER OF JURY TRIAL. THE UNDERSIGNED AND THE BANK HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) BETWEEN THE UNDERSIGNED AND THE BANK ARISING OUT OF OR IN ANY WAY
RELATED TO THIS NOTE, ANY OF THE LIABILITIES, OR ANY ALLEGED ACT OR NEGLECT OF
THE BANK. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE
FINANCING DESCRIBED HEREIN.
Borrower(s)' Address: Borrower(s):
429 Post Road EXPRESS 1, INC.
Buchanan, Michigan 49107
By:
-------------------------------------
Michael R. Welch
Its: Chief Executive Officer
3