EXHIBIT 99.4
COMMERCE GROUP CORP.
6001 NORTH 91ST ST.
MILWAUKEE, WI 53225-1795
(414) 462-5310
FAX (414) 462-5312
E-MAIL info@commercegroupcorp.com
WEBSITE www.commercegroupcorp.com
AND/OR COMMERCE/SANSEB JOINT VENTURE (Joint Venture)
AND/OR HOMESPAN REALTY CO., INC. (Homespan)
AND/OR ECOMM GROUP INC. (Ecomm)
AND/OR SAN LUIS ESTATES, INC. (SLE)
AND/OR SAN SEBASTIAN GOLD MINES, INC. (Sanseb)
AND/OR UNIVERSAL DEVELOPERS, INC. (UDI)
ALL LOCATED AT THE SAME ADDRESS
April 8, 2009
Mrs. Sylvia Machulak as an
Individual and for her Rollover
Individual Retirement Account
903 West Green Tree Road
River Hills, Wisconsin 53217
Dear Mrs. Machulak:
At today's Commerce Group Corp. (Commerce) Directors' meeting, the
Directors were informed about the annual confirmation, disclosure and
status letter that you requested from Commerce, its subsidiaries, its
affiliates, and the Joint Venture, and to establish and confirm the
amount due and the collateral pledged along with any other Commerce
obligations or agreements made to the Sylvia Machulak Rollover Retirement
Account (SM RIRA) and to Sylvia Machulak as an individual/consultant
(SM), both referred to as Lenders, as of Commerce's fiscal year ended
March 31, 2009. Today, Commerce's Directors, by unanimous consent,
approved, ratified and confirmed the contents of this letter and
authorized me to submit its understanding of your status with Commerce,
which is as follows:
1. Promissory Notes
The total amount of all of the open-ended, secured, on-demand
promissory notes (Notes) together with interest due to the SM RIRA
is $1,168,811.34 as of March 31, 2009. Commerce has renewed this
promissory note as of March 31, 2009 and a copy is attached (Exhibit
A). A schedule including all of the transactions pertaining to the
activities relating to this Note during this fiscal year ended March
31, 2009 is also attached (Exhibit A-1). These Note(s) bear
interest, payable monthly, at the rate of 3% over the prime rate
established from time to time by the First National Bank of Chicago,
Chicago, Illinois, (then Bank One; now the prime rate published in
the Wall Street Journal), but not less than 16% per annum. Commerce
is no longer issuing monthly Notes for the payment of interest,
etc., but pursuant to our understanding, Commerce is augmenting all
additions and advances made by the SM RIRA, and it will deduct any
payments or credits made by Commerce to the current open-ended,
secured, on-demand, outstanding Notes issued or
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 2 of 11 Pages
obligations owed to the SM RIRA and Commerce will provide an annual
accounting and confirmation letter.
On May 9, 2005, Commerce's Directors authorized its Officers to
issue renewed annual note(s) (Exhibit B of the May 9, 2005
confirmation letter) so that the Lender will have a current
substituted dated debt instrument. The Directors acknowledged that
the issuance of note(s) for each transaction are too cumbersome and
are not practicable to manage. Also, the length of time involved
and the number of transactions make it impractical to devote the
time and effort to issue a note for each transaction. However,
beginning with the fiscal year which ended March 31, 2007, the
Directors are including the following as Lender(s): John E.
Machulak and Susan R. Robertson, husband and wife (M&R), the
Machulak, Robertson & Sodos, S.C. Law Firm (Law Firm), Circular
Marketing, Inc. (CMI) and Edward A. Machulak as an individual
(EAM). Therefore, the Directors have unanimously agreed to continue
to embrace this resolution which was adopted on May 9, 2005:
WHEREAS, in the past 20 years or more the following parties:
General Lumber & Supply Co., Inc. (GLSCO); Edward L. Machulak as an
individual and not as a Director or Officer of Commerce (ELM); the
Edward L. Machulak Rollover Individual Retirement Account (ELM
RIRA), the Sylvia Machulak Rollover Individual Retirement Account
(SM RIRA), and Sylvia Machulak, as a consultant and as an individual
(SM), hereafter collectively and individually identified as the
Lender(s), have accounted for advancing cash funds, earning accrued
interest, and for appropriate credit which was reconciled to the
open-ended, secured, on-demand notes(s); and
WHEREAS, the Directors desire to minimize the record keeping in
these transactions without jeopardizing, diminishing, altering,
changing or losing any rights that the Lenders have by changing the
procedures in handling the recording of any notes(s) issued or to be
issued; and
WHEREAS, in order to provide an easier accounting facility by
renewing the notes(s) on an annual basis to coincide with the
Company's fiscal year (which presently ends on March 31) and to
incorporate said renewed note(s) with the annual confirmation
agreement(s); and
WHEREAS, prior to the change to issue substituted renewed
note(s), the initial promissory note(s) were considered to be
open-ended, secured, on-demand and the additions and deductions were
recognized by separate accounting records; therefore, be it
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 3 of 11 Pages
RESOLVED, That the Directors authorize and empower the Officers
to substitute and issue renewed consolidated promissory note(s) at
the end of each fiscal year beginning with the Company's fiscal year
ended March 31, 2005 to the following: General Lumber & Supply Co.,
Inc. (GLSCO); Edward L. Machulak as an individual and not as a
Director or Officer of Commerce (ELM); the Edward L. Machulak
Rollover Individual Retirement Account (ELM RIRA), the Sylvia
Machulak Rollover Individual Retirement Account (SM RIRA), and
Sylvia Machulak, as a consultant and as an individual (SM),
hereafter collectively and individually identified as the Lender(s);
and
BE IT FURTHER RESOLVED, That the Officers of the Company are
authorized and empowered to assure the Lender(s) that by
substituting and consolidating the existing note(s) and issuing the
renewed note(s) on the last day of the Company's fiscal year
beginning with March 31, 2005 with the understanding that the
intention is that the Lender(s) will not jeopardize, lose, diminish,
risk, alter or change any rights, including the pledge of
collateral, that are inherent with the initial note(s) by the
issuance of annual renewed open-ended, secured, on-demand promissory
note(s); and
BE IT FURTHER RESOLVED, That the Directors acknowledge that the
only purpose of the change and substitution to issue annual renewed
notes(s) is for the convenience, reduced accounting and reducing the
paperwork involved; and
BE IT FURTHER RESOVED, That the Officers are authorized and
empowered to perform any act that they deem necessary to accommodate
the purpose of issuing annual renewed note(s).
As of March 31, 2009, the following parties are collectively and
individually identified as the Lender(s): General Lumber & Supply Co.,
Inc. (GLSCO); Edward L. Machulak as an individual and not as a Director
or Officer of Commerce (ELM); the Edward L. Machulak Rollover Individual
Retirement Account (ELM RIRA), the Sylvia Machulak Rollover Individual
Retirement Account (SM RIRA), Sylvia Machulak, as a consultant and as an
individual (SM), John E. Machulak and Susan R. Robertson, husband and
wife (M&R), the Machulak, Robertson & Sodos, S.C. Law Firm (Law Firm),
Circular Marketing, Inc. (CMI) and Edward A. Machulak as an individual
(EAM).
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 4 of 11 Pages
2. Other Obligations - Consulting Fees Due to Sylvia Machulak as an
Individual (SM)
As of September 30, 2000, a sum of $201,600 (72 months at $2,800 per
month) is due to SM for consulting services rendered pursuant to a
Director resolution adopted on October 20, 2000. The Directors
further acknowledge the continuance of SM's services at a sum of
$3,000 per month beginning on October 1, 2000, and continuing until
such time as terminated by the Directors or the President.
Therefore, the amount due to SM as of March 31, 2009 is $507,600 (72
months at $2,800 and 102 months at $3,000). Reference is made to
Exhibit B included in the April 5, 1996 confirmation letter.
3. Transactions other than Notes Entered into or Confirmed During the
Fiscal Year with SM or the SM RIRA, Commerce, and its Subsidiaries
There were no known other non-routine transactions during this
fiscal year ended March 31, 2009.
4. Collateral Pledged
The collateral specifically pledged to the SM RIRA or as otherwise
noted is as follows:
a. A Collateral Pledge Agreement executed by Commerce on December
31, 1981 granted to the SM RIRA by Commerce pledging 48,645 SLE
common shares, par value $0.50 a share, Certificate No. 25,
dated December 31, 1981, together with a letter agreement dated
December 31, 1981. Reference is made to Exhibit 4 in the April
9, 1990 confirmation letter.
b. Acknowledgement of previously recorded collateral provided to
the Lenders
Historical information - San Sebastian Gold Mine Concession
GLSCO, ELM, the ELM RIRA, the SM RIRA, and SM collectively and
individually identified as the Lender(s), have been assigned on
October 19, 1987, all of the rights, titles, claims, remedies
and interest in the Joint Venture, and to the mine concession
granted by the Government of El Salvador to Mineral San
Sebastian, S.A. de C.V (Misanse) on July 23, 1987, and
thereafter from time to time amended, and which Misanse then
assigned to the Joint Venture on September 22, 1987. This
collateral specifically includes, but is not limited to, all of
the San Sebastian Gold Mine (SSGM) precious metal ore
reserves. Commerce
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 5 of 11 Pages
and the Joint Venture have the right to assign this and any
subsequent concession agreement. Reference is made to Exhibit
4(a) included in the April 9, 1990 confirmation letter.
The following collateral has been previously assigned to the
Lenders pursuant to resolutions adopted by the Directors:
(1) Commerce/Sanseb Joint Venture (Joint Venture)
Both Commerce and San Sebastian Gold Mines, Inc. have
assigned all of the rights, title, claims, remedies and
interest that each has in the Joint Venture to the Lenders.
Reference is made to Historical information - San Sebastian
Gold Mine Concession.
(2) New SSGM Exploration Concession/License (New SSGM) -
approximately 40.7694 square kilometers (10,070 acres)
Government of El Salvador Resolution No. 27.
On October 20, 2002, the Company applied for the New SSGM,
which covers an area of 42 square kilometers and includes
approximately 1.2306 square kilometers of the Renewed SSGM.
The New SSGM is in the jurisdiction of the City of Santa
Rosa de Lima in the Department of La Union and in the Nueva
Esparta in the Department of Morazan, Republic of El
Salvador, Central America. On February 24, 2003, the El
Salvador Department of Hydrocarbons and Mines (DHM) issued
the New SSGM for a period of four years starting from the
date following the notification of this resolution which was
received on March 3, 2003. The New SSGM may be extended for
two two-year periods, or for a total of eight years.
Besides the San Sebastian Gold Mine, three other formerly
operative gold and silver mines known as the La Lola Mine,
the Santa Lucia Mine, and the Tabanco Mine are included in
the New SSGM. The Company has complied as required by
filing its annual activity report and it paid the annual
surface tax. This concession had been assigned collectively
to all of the Lenders named herein on May 12, 2003 and the
assignment was included in the May 12, 2003 confirmation
agreement as Exhibit B.
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 6 of 11 Pages
(3) Lease agreement by and between Mineral San Sebastian
Sociedad Anomina de Capital Variable (Misanse) and Commerce
dated January 14, 2003
The term of this lease agreement coincides with the term of
the Renewed San Sebastian Gold Mine Exploitation Concession
and consists of 1,470 acres owned by Misanse. This lease
agreement has been assigned to all of the Lenders named
herein on May 12, 2003 and the assignment was included in
the May 12, 2003 confirmation agreement as Exhibit B.
(4) Renewed San Sebastian Gold Mine Exploitation
Concession/License (Renewed SSGM) - approximately 1.2306
square kilometers (304 acres), Department of La Union, El
Salvador, Central America (pledged and assigned as
collateral on May 10, 2004) Government of El Salvador
Agreement No. 591.
On September 6, 2002, at a meeting held with the El
Salvadoran Minister of Economy and the DHM, it was agreed to
submit an application for the Renewed SSGM for a 30-year
term and to simultaneously cancel the concession obtained on
July 23, 1987. On September 26, 2002, the Company filed
this application. On February 28, 2003 (received March 3,
2003) the DHM admitted to the receipt of the application and
the Company proceeded to file public notices as required by
Article 40 of the El Salvadoran Mining Law and its Reform
(MLIR). On April 16, 2003, the Company's El Salvadoran
legal counsel filed with the DHM notice that it believed
that it complied with the requirements of Article 40, and
that there were no objections; and requested that the DHM
make its inspection as required by MLIR Article 42. The
Company then provided a bond which was required by the DHM
to protect third parties against any damage caused from the
mining operations, and it simultaneously paid the annual
surface tax. On August 29, 2003 the Office of the Ministry
of Economy formally presented the Company with the
twenty-year Renewed SSGM which was dated August 18, 2003.
This Renewed SSGM replaces the collateral that the same
parties held with the previous concession. On May 20, 2004
(delivered June 4, 2004) the Government of El Salvador,
under their Agreement Number 591, extended the exploitation
concession for a period of 30 years. A copy of the
assignment dated May 10, 2004, is attached to the May 10,
2004 confirmation letter as Exhibit B and the
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 7 of 11 Pages
Renewed SSGM agreement is attached to Exhibit B and referred
to as Exhibit 1.
(5) San Cristobal Mill and Plant (SCMP) three-year lease by and
between Commerce and Corporacion Salvadorena de Inversiones
(Corsain), an El Salvadoran governmental agency, executed on
Monday, April 26, 2004, retroactive to November 13, 2003.
Pledged and assigned as collateral on May 10, 2004.
The renewed three-year SCMP lease for the property located
near the City of El Divisadero was finalized and executed on
Monday, April 26, 2004, and is retroactive to November 13,
2003. This May 10, 2004 assignment is included in the May
10, 2004 confirmation letter as Exhibit B and the lease
agreement is attached to Exhibit B and referred to as
Exhibit 2.
On March 25, 2008 a nineteen-month lease retroactive to
November 12, 2006 was executed by and between Corsain and
Commerce. The lease was renewed on June 12, 2008 for a
six-month period to expire on December 11, 2008 with an
option to subsequently renew it for additional three-month
periods. The Company has chosen to exercise this option and
has renewed the lease through June of 2009. Reference is
made to Exhibit 10.16 of Commerce's Form 10-K for its fiscal
year ended March 31, 2008 for a copy of this lease.
(6) Nueva Esparta Exploration Concession/License (Nueva Esparta)
- 45 square kilometers (11,115 acres) Resolution No. 271
On or about October 20, 2002, the Company filed an
application with the DHM for the Nueva Esparta Exploration
Concession/License which consists of 45 square kilometers
and is located north and adjacent to the New SSGM. On May
25, 2004 the Government of El Salvador, under their
Resolution No. 271, issued the Nueva Esparta Exploration
Concession/License for a period of four years starting from
the date following the notification of this resolution which
was received on June 4, 2004. This concession/license may
be extended for two two-year periods or for a total of eight
years. This rectangular area is in the Departments of La
Union (east) and Morazan (west) and in the jurisdiction of
the City of Santa Rosa de Lima, El Salvador, Central
America. Included in the Nueva Esparta are eight other
formerly operated gold and silver mines known as: the
Banadero Mine, the Carrizal Mine, the Copetillo Mine, the
Grande
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 8 of 11 Pages
Mine, the La Joya Mine, the Las Pinas Mine, the Montemayor
Mine, and the Oro Mine. A copy of the assignment dated May
9, 2005 was attached to the May 9, 2005 confirmation letter
as Exhibit C and the Nueva Esparta Exploration Concession is
attached to Exhibit C and referred to as Exhibit 1.
(7) Acknowledgment of collateral provided through March 31, 2009
Commerce's Directors have on April 8, 2009 authorized and
directed Commerce's Officers to assign all of the rights,
titles, claims, remedies and interest in all of its assets
that it has, including any assets owned by the Joint
Venture, to GLSCO, ELM, the ELM RIRA, the SM RIRA, SM, and
from March 31, 2007 to include M&R, the Law Firm, CMI and
EAM, collectively and individually referred to as Lenders,
as additional collateral for all of the outstanding loans
and obligations as of March 31, 2009, including all future
advances of any kind.
5. Cross Pledge Collateral Agreement
GLSCO, ELM, the ELM RIRA, the SM RIRA and SM individually are
entitled to specific collateral that has been pledged to them by
Commerce, its subsidiaries, affiliates and the Joint Venture. Upon
default by Commerce, or its subsidiaries or affiliates or the Joint
Venture, then GLSCO, ELM, the ELM RIRA, the SM RIRA and SM have the
first right to the proceeds from the specific collateral pledged to
each of them. Commerce, its subsidiaries, affiliates, and the Joint
Venture also have cross-pledged the collateral without diminishing
the rights of the specific collateral pledged to each of the
following: GLSCO, ELM, the ELM RIRA, the SM RIRA and SM. The
purpose and the intent of the cross pledge of collateral is to
assure GLSCO, ELM, the ELM RIRA, the SM RIRA, and SM, that each of
them would be paid in full; thus, any excess collateral that would
be available is for the purpose of satisfying any debts and
obligations due to each of the named parties. The formula to be
used (after deducting the payments made from the specific
collateral) is to total all of the debts due to GLSCO, ELM, the ELM
RIRA, the SM RIRA, SM, and from March 31, 2007 to include M&R, the
Law Firm, CMI and EAM, and then to divide this total debt into each
individual debt to establish each individual's percentage of the
outstanding debt due. This percentage then will be multiplied by
the total of the excess collateral to determine the amount of
proceeds each party should receive from the excess collateral. Then
the amount due to each of them would be distributed accordingly.
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 9 of 11 Pages
6. Cancellation of Inter-Company Debts Upon Default
Since certain of the collateral specifically or collectively pledged
to GLSCO, ELM, the ELM RIRA, the SM RIRA, SM and from March 31, 2007
to include M&R, the Law Firm, CMI and EAM, consists of the common
stock of Homespan, Ecomm, Sanseb, SLE, Misanse, UDI and the interest
in the ownership of the Joint Venture, Commerce agreed, upon default
of the payment of principal or interest to any of the individual
Lender(s) mentioned herein, that it will automatically cancel any
inter-company debts owed to Commerce by any of its wholly-owned
subsidiaries or affiliates or the Joint Venture at such time as any
of the stock or Joint Venture ownership is transferred to the
collateral holders as a result of default of any promissory note.
7. Guarantors
This agreement further confirms that Commerce and all of the
following are guarantors to the obligations due to SM and to the
loans made by the SM RIRA to Commerce: Joint Venture, Homespan,
Ecomm, SLE, Sanseb and UDI. They jointly and severally guarantee
payment of the note(s) that they caused to be issued and also agree
that these note(s) may be accelerated in accordance with the
provisions contained in the agreement and/or any collateral or
mortgages securing these notes. Also, Commerce, all of its
subsidiaries and the Joint Venture agree to the cross pledge of
collateral for the benefit of GLSCO, ELM, the ELM RIRA, the SM RIRA,
SM, and from March 31, 2007 to include M&R, the Law Firm, CMI and
EAM. Reference is made to Exhibit 5 included in the April 9, 1990
confirmation letter.
8. Re-Execution Agreement(s)
In the event the SM RIRA and/or SM deems that it is necessary or
advisable for the SM RIRA and/or SM to have Commerce re-execute any
document(s) entered into, including, but not limited to the
promissory note(s) or collateral agreement(s), Commerce will
re-execute such document(s) reasonably required by the SM RIRA
and/or SM. Commerce also acknowledges that Commerce may be liable
to pay certain costs related to any of the transactions entered into
with the SM RIRA and/or SM. If at a later date the SM RIRA and/or
SM determines that an error has been made in the payment of such
costs to the SM RIRA and/or SM, then the SM RIRA and/or SM may
demand payment and Commerce does hereby agree to make such payment
forthwith. All requests for corrections of any errors and/or
payment of costs shall be complied with by Commerce within seven (7)
days of the SM RIRA's and/or SM's written request. The failure of
Commerce to comply with Commerce's obligation(s) hereunder shall
constitute a default and shall entitle the
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 10 of 11 Pages
SM RIRA and/or SM to the remedies available for default under any
provisions of the agreements including, but not limited to the
promissory note(s) and/or the collateral pledge agreement(s) and/or
any other Commerce obligation(s).
9. Omissions
Commerce believes that it has included all of its obligations,
monies due and has listed all of the collateral due to the SM RIRA
and/or SM, however, since these transactions have taken place over
a long period of time in which changes could have taken place, it is
possible that inadvertently some item(s), particularly collateral,
could have been omitted. If that should prove to be a fact, then
Commerce, the Joint Venture, Homespan, Ecomm, SLE, Sanseb, and UDI
agree that those omissions of collateral, if any, are meant to be
included as collateral under this confirmation agreement.
If you are in agreement with the contents of this letter, please sign
below and return one copy to Commerce.
Very truly yours,
COMMERCE GROUP CORP.
/s/ Christine M. Wolski
Christine M. Wolski
Secretary
Mrs. Sylvia Machulak
Sylvia Machulak
Rollover Individual Retirement Account
April 8, 2009
Page 11 of 11 Pages
The contents of this letter are agreed by the following:
COMMERCE/SANSEB JOINT VENTURE HOMESPAN REALTY COMPANY, INC.
as Guarantor (Joint Venture) as Guarantor (Homespan)
/s/ Edward A. Machulak /s/ Edward A. Machulak
- --------------------------------------- ----------------------------------
By: Edward A. Machulak, Auth. Designee By: Edward A. Machulak, President
ECOMM GROUP INC. SAN LUIS ESTATES, INC.
as Guarantor (Ecomm) as Guarantor (SLE)
/s/ Edward A. Machulak /s/ Edward A. Machulak
- --------------------------------------- ----------------------------------
By: Edward A. Machulak, President By: Edward A. Machulak, President
SAN SEBASTIAN GOLD MINES, INC. UNIVERSAL DEVELOPERS, INC.
as Guarantor (Sanseb) as Guarantor (UDI)
/s/ Edward A. Machulak /s/ Edward A. Machulak
- --------------------------------------- ----------------------------------
By: Edward A. Machulak, President By: Edward A. Machulak, President
Accepted by: Accepted by:
/s/ Sylvia Machulak /s/ Sylvia Machulak
- --------------------------------------- ----------------------------------
Sylvia Machulak Rollover Individual Sylvia Machulak as an individual
Retirement Account Date: April 8, 2009
Date: April 8, 2009
EXHIBIT A TO EXHIBIT 99.4
RENEWED PROMISSORY NOTE
Borrower: Commerce Group Corp. Lender: Sylvia Machulak RIRA
6001 North 91st Street 903 West Green Tree Rd.
Milwaukee, WI 53225 Milwaukee, WI 53217
Principal Amount: $1,168,811.34
Initial Rate: 3.000% + prime rate, but not less than 16.000%
Date of Renewed Note: March 31, 2009
PROMISE TO PAY. COMMERCE GROUP CORP. ("Borrower") promises to pay to the
SYLVIA MACHULAK ROLLOVER INDIVIDUAL RETIREMENT ACCOUNT ("Lender"), or
order, in lawful money of the United States of America, the principal
amount of One Million One Hundred Sixty Eight Thousand Eight Hundred
Eleven and 34/100 Dollars ($1,168,811.34), together with interest, paid
monthly, on the unpaid principal balance from March 31, 2009, until paid
in full.
PAYMENT. This is an open-ended, secured, on-demand payment, renewed
promissory note. Interest is to be paid monthly. The Lender, at its
discretion, can add the monthly interest due to the principal balance.
Unless otherwise agreed or required by applicable law, payments will be
applied first to any accrued unpaid interest; and then to principal. The
annual interest rate for this Note is computed on a 365/360 basis; that
is, by applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding and the
interest is payable monthly. Borrower will pay Lender at Lender's
address shown above or at such other place as Lender may designate in
writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to
change from time to time based on changes in the prime rate as quoted in
the Wall Street Journal plus three percent, but not less than sixteen
percent per annum. Borrower understands that Lender may make loans to
the Borrower based on other rates as well. The prime rate as of this date
is 3.250% per annum. The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 3.000 percentage
points over the prime rate, but not less than 16.000% per annum. NOTICE:
Under no circumstances will the interest rate on this Note be less than
16.000% per annum or more than the maximum rate allowed by applicable
law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the
amount owed earlier than it is due. Early payments will not, unless
agreed to by Lender in writing, relieve Borrower of Borrower's obligation
to pay on demand, the entire amount due. Rather, any payment will reduce
the principal balance due. Borrower agrees not to send Lender payments
marked "paid in full," "without recourse," or similar language. If
Borrower sends such a payment, Lender may accept it without losing any of
Lender's rights under this Note, and Borrower will remain obligated to
pay any further amount owed to Lender.
INTEREST AFTER DEFAULT. Upon default, including failure to pay on
demand, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 6.000 percentage
points over the prime rate or over the 16.000% rate, whichever is higher.
The interest rate will not exceed the maximum rate permitted by
applicable law.
DEFAULT. Each of the following shall constitute an event of default
("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when demand is
made under this Note.
Other Defaults. Borrower fails to comply with or to perform any
other term, obligation, covenant or condition contained in this Note
or in any of the related documents or to comply with or to perform
any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other
creditor or person that may materially affect any of Borrower's
property or Borrower's ability to repay this Note or perform
Borrower's obligations under this Note or any of the related
documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Note or the related documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence
as a going business, the insolvency of Borrower, the appointment of
a receiver for any part of Borrower's property, any assignment for
the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency
laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the loan.
However, this Event of Default shall not apply if there is a good
faith dispute by Borrower as to the validity or reasonableness of
the claim which is the basis of the creditor or forfeiture
proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or
a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or any Guarantor
disputes the validity of, or liability under, any guaranty of the
indebtedness evidenced by this Note.
Adverse Change. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon default or upon demand, the Lender may declare the
entire unpaid principal balance on this Note and all accrued unpaid
interest immediately due, and then Borrower will pay that amount.
COLLATERAL. Borrower acknowledges this Note is secured by all security
agreements, guarantees, mortgages, and other security instruments
previously granted, contemporaneously granted, and granted in the future,
and it has the collateral and other rights all as contained in a certain
confirmation agreement dated May 10, 2004 between all parties contained
therein, and as subsequently amended and updated from time to time.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower will pay Lender
that amount. This includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses, whether or not
there is a lawsuit, including attorneys' fees, expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. If not prohibited by applicable law, Borrower
also will pay any court costs, in addition to all other sums provided by
law.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with the laws of the State of Wisconsin. This Note has been
accepted by Lender in the State of Wisconsin.
OTHER LOAN AGREEMENTS. If Borrower and Lender have either previously or
contemporaneously entered into a Loan or Confirmation Agreements, it is
agreed that this Note is subject to the terms and conditions of such Loan
or Confirmation Agreements. For purpose of this provision, Loan or
Confirmation Agreements shall include, but not be limited to, a Business
Loan Agreement or any other Loan or Confirmation Agreements.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon
Borrower, and upon Borrower's successors and assigns, and shall inure to
the benefit of Lender and Lender's heirs, executors, administrators,
successors and assigns.
GENERAL PROVISIONS. This Note benefits Lender and its successors and
assigns, and binds Borrower and Borrower's successors, assigns, and
representatives. Lender may delay or forgo enforcing any of its rights
or remedies under this Note without losing them. Borrower and any other
person or corporation who signs, guarantees or endorses this Note, to the
extent allowed by law, waive presentment, demand for payment, and notice
of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note,
whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any
party or guarantor or collateral; or impair, fail to realize upon or
perfect Lender's security interest in the collateral; and take any other
action deemed necessary by Lender without the consent of or notice to
anyone. All such parties also agree that Lender may modify this loan
without the consent of or notice to anyone other than the party with whom
the modification is made. The obligations under this Note are joint and
several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS NOTE, INCLUDING THE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY
NOTE.
BORROWER:
COMMERCE GROUP CORP.
/s/ Edward A. Machulak
- ----------------------------------
By: Edward A. Machulak, President
/s/ Christine M. Wolski
- -----------------------------------------------------
By: Christine M. Wolski, Secretary
EXHIBIT A-1 TO EXHIBIT 99.4
(Schedule of all transactions pertaining to
the activities relating to Exhibit A to
Exhibit 99.4 for the fiscal year ending March 31, 2009
has been purposely omitted as it only reflects
the calculations of the principal and interest.)