Fifth Third Bank Revolving Note
Fifth
Third Bank
| OFFICER No. 05271 |
NOTE
No.
___________________
|
| $1,600,000.00 |
July
21, 2005
|
(Effective
Date)
1. PROMISE
TO PAY.
On or
before August 1, 2006 (the "Maturity Date"), the undersigned, Birmingham
Bloomfield Bancorp, Inc., a Michigan corporation located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower") for value
received, hereby promises to pay to the order of Fifth Third Bank, a Michigan
banking corporation located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1207 for itself and as agent for any affiliate of Fifth Third
Bancorp (together with its successors and assigns, the "Lender") the sum
of One
Million Six Hundred Thousand and 00/100 Dollars ($1,600,000.00) (the
"Borrowing"), plus interest as provided herein, less such amounts as shall
have
been repaid in accordance with this Note. The outstanding balance of this
Note
shall appear on a supplemental bank record and is not necessarily the face
amount of this Note, which record shall evidence the balance due pursuant
to
this Note at any time. As used herein, "Local Time" means the time at the
office
of Lender specified in this Note.
Principal
and interest payments shall be made at ▇▇▇▇▇▇'s address above unless otherwise
designated by ▇▇▇▇▇▇ in writing. Each payment hereunder shall be applied
first
to advanced costs, charges and fees, then to accrued interest, and then to
principal, which will be repaid in inverse chronological order of
maturity.
▇▇▇▇▇▇,
in its reasonable discretion, may loan hereunder to ▇▇▇▇▇▇▇▇ on a revolving
basis such amounts as may from time to time be requested by ▇▇▇▇▇▇▇▇, provided
that: (a) the aggregate principal amount borrowed hereunder at any time shall
not exceed the Borrowing, and (b) no Event of Default shall exist or be caused
thereby. The entire principal balance, together with all accrued and unpaid
interest and any other charges, advances and fees, if any, outstanding
hereunder, shall be due and payable in full on the earlier of the Maturity
Date
or upon acceleration of this Note.
The
principal sum outstanding shall bear interest at a floating rate per annum
equal
to 1% less than the rate of interest per annum established from time to time
by
Fifth Third Bank at its principal office as its "Prime Rate", whether or
not
Fifth Third Bank shall at times lend to borrowers at lower rates of interest
or,
if there is no such prime rate, then such other rate as may be substituted
by
Fifth Third Bank for the prime rate (the "Interest Rate"). In the event of
a
change in said Prime Rate, the Interest Rate shall be changed immediately
to the
percentage stated above less than such new Prime Rate. Interest shall be
calculated based on a 360-day year and charged for the actual number of days
elapsed, and shall be payable on the 1st day of each month beginning on
September 1, 2005.
Notwithstanding
any provision to the contrary in this Note, in no event shall the interest
rate
charged on the Borrowing exceed the maximum rate of interest permitted under
applicable state and/or federal usury law. Any payment of interest that would
be
deemed unlawful under applicable law for any reason shall be deemed received
on
account of, and will automatically be applied to reduce, the principal sum
outstanding and any other sums (other than interest) due and payable to Lender
under this Note, and the provisions hereof shall be deemed amended to provide
for the highest rate of interest permitted under applicable law.
2. USE
OF
PROCEEDS.
Borrower certifies that the proceeds of this loan are to be used for business
purposes.
3. NOTE
PROCESSING FEE.
▇▇▇▇▇▇
may charge, and ▇▇▇▇▇▇▇▇ agrees to pay on the above Effective Date, a note
processing fee in the amount of $425.00.
4. REPRESENTATIONS
AND WARRANTIES.
Borrower hereby warrants and represents to Lender the following:
(a) Organization
and Qualification.
Borrower is duly organized, validly existing and in good standing under the
laws
of the State of its incorporation, has the power and authority to carry on
its
business and to enter into and perform all documents relating to this loan
transaction, and is qualified and licensed to do business in each jurisdiction
in which such qualification or licensing is required. All information provided
to Lender with respect to Borrower and its operations is true and
correct.
(b) Due
Authorization.
The
execution, delivery and performance by Borrower of the Loan Documents have
been
duly authorized by all necessary corporate action, and shall not contravene
any
law or any governmental rule or order binding on Borrower, or the articles
of
incorporation and code of regulations or by-laws of Borrower, nor violate
any
agreement or instrument by which Borrower is bound nor result in the creation
of
a Lien on any assets of Borrower except the Lien granted to Lender herein.
▇▇▇▇▇▇▇▇ has duly executed and delivered to Lender the Loan Documents and
they
are valid and binding obligations of Borrower enforceable according to their
respective terms, except as limited by equitable principles and by bankruptcy,
insolvency or similar laws affecting the rights of creditors generally. No
notice to, or consent by, any governmental body is needed in connection with
this transaction.
(c) Litigation.
There
are no suits or proceedings pending or threatened against or affecting Borrower,
and no proceedings before any governmental body are pending or threatened
against Borrower.
(d) Margin
Stock.
No part
of the proceeds of this borrowing from Lender shall be used to purchase or
carry, or to reduce or retire or refinance any credit incurred to purchase
or
carry, any margin stock (within the meaning of Regulations U and X of the
Board
of Governors of the Federal Reserve System) or to extend credit to others
for
the purpose of purchasing or carrying any margin stock. If requested by ▇▇▇▇▇▇,
Borrower shall furnish to Lender statements in conformity with the requirements
of Federal Reserve Form U- 1.
(e)
Business.
Borrower is not a party to or subject to any agreement or restriction that
may
have a material adverse effect on Borrower's business, properties or prospects.
Borrower has all franchises, authorizations, patents, trademarks, copyrights
and
other rights necessary to advantageously conduct its business. They are all
in
full force and effect and are not in known conflict with the rights of
others.
(f) Licenses,
etc.
Borrower has obtained any and all licenses, permits, franchises, governmental
authorizations, patents, trademarks, copyrights or other rights necessary
for
the ownership of its properties and the advantageous conduct of its business.
Borrower possesses adequate licenses, patents, patent applications, copyrights,
trademarks, trademark applications, and trade names to continue to conduct
its
business as heretofore conducted by it, without any conflict with the rights
of
any other person or entity. All of the foregoing are in full force and effect
and none of the foregoing are in known conflict with the rights of
others.
(g) Laws
and Taxes.
Borrower is in material compliance with all laws, regulations, rulings, orders,
injunctions, decrees, conditions or other requirements applicable to or imposed
upon Borrower by any law or by any governmental authority, court or agency.
▇▇▇▇▇▇▇▇ has filed all required tax returns and reports that are now required
to
be filed by it in connection with any federal, state and local tax, duty
or
charge levied, assessed or imposed upon Borrower or its assets, including
unemployment, social security, and real estate taxes. Borrower has paid all
taxes which are now due and payable. No taxing authority has asserted or
assessed any additional tax liabilities against Borrower which are outstanding
on this date, and Borrower has not filed for any extension of time for the
payment of any tax or the filing of any tax return or report.
(h) Title.
Borrower has good and marketable title to the assets reflected on the most
recent balance sheet submitted to Lender, free and clear from all liens and
encumbrances of any kind, except for (collectively, the "Permitted Liens")
(a)
current taxes and assessments not yet due and payable, (b) liens and
encumbrances, if any, reflected or noted on such balance sheet or notes thereto,
(c) assets disposed of in the ordinary course of business, and (d) any security
interests, pledges, assignments or mortgages granted to ▇▇▇▇▇▇ to secure
the
repayment or performance of the Obligations.
(i) Defaults.
Borrower is in compliance with all material agreements applicable to it and
there does not now exist any default or violation by Borrower of or under
any of
the terms, conditions or obligations of (a) its articles of incorporation
and
code of regulations or by-laws, or (b) any indenture, mortgage, deed of trust,
franchise, permit, contract, agreement or other instrument to which Borrower
is
a party or by which it is bound, and the consummation of the transactions
contemplated herein shall not result in such default or violation.
(j) Environmental
Laws.
(i) Borrower
has obtained all permits, licenses and other authorizations or approvals
which
are required under Environmental Laws and Borrower is in compliance in all
material respects with all terms and conditions of the required permits,
licenses, authorizations and approvals, and is also in compliance in all
material respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in the Environmental Laws.
(ii) Borrower
is not aware of, and has not received notice of, any past, present or future
events, conditions, circumstances, activities, practices, incidents, actions
or
plans which may interfere with or prevent compliance or continued compliance,
in
any material respect, with Environmental Laws, or may give rise to any material
common law or legal liability, or otherwise form the basis of any material
claim, action, demand, suit, proceeding, hearing, study or investigation,
based
on or related to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling or the emission, discharge, release
or
threatened release into the environment, of any pollutant, contaminant,
chemical, or industrial, toxic or hazardous substance or waste.
(iii) There
is
no civil, criminal or administrative action suit, demand, claim, hearing,
notice
or demand letter, notice of violation, investigation or proceeding pending
or
threatened against Borrower, relating in any way to Environmental
Laws.
(iv) "Environmental
Laws" means all federal, state, local and foreign laws relating to pollution
or
protection of the environment, including laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial toxic or hazardous substances or wastes into the environment
(including without limitation ambient air, surface water, ground water or
land),
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes, and any
and
all regulations, codes, plans, orders, decrees, judgments, injunctions, notices
or demand letters issued, entered, promulgated or approved
thereunder.
(k) Subsidiaries
and Partnerships.
Borrower has no subsidiaries and is not a party to any partnership agreement
or
joint venture agreement.
(I) ERISA.
Borrower and all individuals or entities that, along with Borrower, would
be
treated as a single employer under ERISA or the Internal Revenue Code of
1986,
as amended (an "ERISA Affiliate"), are in compliance with all of their
obligations to contribute to any "employee benefit plan " as that term is
defined in Section 3(3) of ERISA. Borrower and each of its ERISA Affiliates
are
in full compliance with ERISA, and there exists no event described in Section
4043(b) thereof ("Reportable Event'). "ERISA" means the federal Employee
Retirement Income Security Act of 1974, and any regulations promulgated
thereunder from time to time, as amended or as may be replaced by a successor
statute.
(m) Financial
Condition.
All
financial statements and information relating to Borrower which have been
or may
hereafter be delivered by Borrower to Lender are true and correct and have
been
prepared in accordance with generally accepted accounting principles
consistently applied. Borrower has no material obligations or liabilities
of any
kind not disclosed in that financial information, and there has been no material
adverse change in the financial condition of Borrower nor has Borrower suffered
any damage, destruction or loss which has adversely affected its business
or
assets since the submission of the most recent financial information to
Lender.
(n) Solvency.
Borrower is Solvent and upon consummation of the transactions contemplated
herein will be Solvent. "Solvent" means that: (a) the total amount of the
Borrower's assets is in excess of the total amount of its liabilities (including
contingent liabilities), at a fair valuation; (b) Borrower does not have
unreasonably small capital for the business and transactions in which Borrower
is engaged or is about to engage; and (c) Borrower does not intend to or
believe
it will incur obligations beyond its ability to pay as they become
due.
5. AFFIRMATIVE
COVENANTS.
Borrower covenants with, and represents and warrants to, Lender that, from
and
after the execution date of the Loan Documents until the Obligations are
paid
and satisfied in full.
(a) Access
to Business Information.
Borrower shall maintain proper books of accounts and records and enter therein
complete and accurate entries and records of all of its transactions in
accordance with generally accepted accounting principles and give
representatives of Lender access thereto at all reasonable times, including
permission to: (a) examine, copy and make abstracts from any such books and
records and such other information which might be helpful to Lender in
evaluating the status of the Obligations as it may reasonably request from
time
to time, and (b) communicate directly with any of Borrower's officers,
employees, agents, accountants or other financial advisors with respect to
the
business, financial conditions and other affairs of the Borrower.
(b) Inspection
of Collateral.
Borrower shall give Lender reasonable access to the Collateral and the other
property securing the Obligations for the purpose of performing examinations
thereof and to verify its condition or existence.
(c) Financial
Statements.
Borrower shall maintain a standard and modern system for accounting and shall
furnish to Lender:
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(i)
|
Within
90 days after the end of each fiscal year, a copy of ▇▇▇▇▇▇▇▇'s
internally
prepared consolidated financial statements for that year in a form
reasonably acceptable to Lender, prepared and certified as complete
and
correct by the principal financial officer of
Borrower;
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(ii)
|
With
the statements submitted above, a certificate signed by the principal
financial officer of ▇▇▇▇▇▇▇▇, (i) stating he is familiar with
all
documents relating to Lender and that no Event of Default specified
herein, nor any event which upon notice or lapse of time, or both
would
constitute such an Event of Default, has occurred, or if any such
condition or event existed or exists, specifying it and describing
what
action Borrower has taken or proposes to take with respect thereto,
and
(ii) setting forth, in summary form, figures showing the financial
status
of Borrower in respect of the financial restrictions contained
herein;
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(iii)
|
Immediately
upon any officer of Borrower obtaining knowledge of any condition
or event
which constitutes or, after notice or lapse of time or both, would
constitute an Event of Default, a certificate of such person specifying
the nature and period of the existence thereof, and what action
Borrower
has taken or is taking or proposes to take in respect
thereof;
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(iv)
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Upon
request or at least quarterly a copy of ▇▇▇▇▇▇▇▇'s Organizational
Budget
and a copy of Prospectus as
requested.
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(v)
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Stock
offering funds not less than $10,000,000.
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All
of the statements referred to in (i) above shall be in conformance
with
generally accepted accounting principles and give representatives
of
Lender access thereto at all reasonable times, including permission
to
examine, copy and make abstracts from any such books and records
and such
other information which might be helpful to Lender in evaluating
the
status of the loans as it may reasonably request from time to
time.
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With
all
financial statements delivered to Lender as provided in (i) above, Borrower
shall deliver to Lender a Financial Statement Compliance Certificate in addition
to the other information set forth therein, which certifies the Borrower's
compliance with the financial covenants set forth herein and that no Event
of
Default has occurred.
If
at any
time Borrower has any additional subsidiaries which have financial statements
that could be consolidated with those of Borrower under generally accepted
accounting principles, the financial statements required by subsections (i)
above shall be the financial statements of Borrower and all such subsidiaries
prepared on a consolidated and consolidating basis.
(d) Condition
and Repair.
Borrower shall maintain its equipment and all Collateral used in the operation
of its business in good repair and working order and shall make all appropriate
repairs, improvements and replacements thereof so that the business carried
on
in connection therewith may be properly and advantageously conducted at all
times.
(e) Insurance.
At its
own cost, ▇▇▇▇▇▇▇▇ shall obtain and maintain insurance against (a) loss,
destruction or damage to its properties and business of the kinds and in
the
amounts customarily insured against by corporations with established reputations
engaged in the same or similar business as Borrower and, in any event,
sufficient to fully protect Lender's interest in the Collateral, and (b)
insurance against public liability and third party property damage of the
kinds
and in the amounts customarily insured against by corporations with established
reputations engaged in the same or similar business as Borrower. All such
policies shall (i) be issued by financially sound and reputable insurers,
(ii)
name ▇▇▇▇▇▇ as an additional insured and, where applicable, as loss payee
under
a Lender loss payable endorsement satisfactory to Lender, and (iii) shall
provide for thirty (30) days written notice to Lender before such policy
is
altered or canceled. All of the insurance policies required hereby shall
be
evidenced by one or more Certificates of Insurance delivered to Lender by
Borrower on the Closing Date and at such other times as Lender may request
from
time to time.
(f) Taxes.
Borrower shall pay when due all taxes, assessments and other governmental
charges imposed upon it or its assets, franchises, business, income or profits
before any penalty or interest accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums
which by law might be a lien or charge upon any of its assets, provided that
(unless any material item or property would be lost, forfeited or materially
damaged as a result thereof) no such charge or claim need be paid if it is
being
diligently contested in good faith, if Lender is notified in advance of such
contest and if Borrower establishes an adequate reserve or other appropriate
provision required by generally accepted accounting principles and deposits
with
Lender cash or bond in an amount acceptable to Lender.
(g) Existence:
Business.
Borrower shall (a) maintain its existence as a corporation, (b) continue
to
engage primarily in business of the same general character as that now
conducted, and (c) refrain from entering into any lines of business
substantially different from the business or activities in which Borrower
is
presently engaged.
(h) Compliance
with Laws.
Borrower shall comply with all federal, state and local laws, regulations
and
orders applicable to Borrower or its assets, including but not limited to,
all
Environmental Laws, in all respects material to Borrower's business, assets
or
prospects and shall immediately notify Lender of any violation of any rule,
regulation, statute, ordinance, order or law relating to the public health
or
the environment and of any complaint or notifications received by Borrower
regarding to any environmental or safety and health rule, regulation, statute,
ordinance or law. Borrower shall obtain and maintain any and all licenses,
permits, franchises, governmental authorizations, patents, trademarks,
copyrights or other rights necessary for the ownership of its properties
and the
advantageous conduct of its business and as may be required from time to
time by
applicable law.
(i) Costs.
Borrower shall reimburse Lender for any and all fees, costs and expenses
including, without limitation, reasonable attorneys' fees, other professionals'
fees, appraisal fees, environmental assessment fees (including Phase I and
Phase
II assessments), field exam audits, expert fees, court costs, litigation
and
other expenses (collectively, the "Costs") incurred or paid by Lender or
any of
its officers, employees or agents in connection with: (a) the preparation,
negotiation, procurement, review, administration or enforcement of the
Loan.
Documents
or any instrument, agreement, document, policy, consent, waiver, subordination,
release of lien, termination statement, satisfaction of mortgage, financing
statement or other lien search, recording or filing related thereto (or any
amendment, modification or extension to, or any replacement or substitution
for,
any of the foregoing), whether or not any particular portion of the transactions
contemplated during such negotiations is ultimately consummated, and (b)
the
defense, preservation and protection of ▇▇▇▇▇▇'s rights and remedies thereunder,
including without limitation, its security interest in the Collateral or
any
other property pledged to secure the Loans, whether incurred in bankruptcy,
insolvency, foreclosure or other litigation or proceedings or otherwise.
The
Costs shall be due and payable upon demand by ▇▇▇▇▇▇. If ▇▇▇▇▇▇▇▇ fails to
pay
the Costs when upon such demand, ▇▇▇▇▇▇ is entitled to disburse such sums
as
Obligations. Thereafter, the Costs shall bear interest from the date incurred
or
disbursed at the highest rate set forth in the Note(s). This provision shall
survive the termination of this Agreement and/or the repayment of any amounts
due or the performance of any Obligation.
(j) Depository/Banking
Services.
Lender
shall be the principal depository in which substantially all of Borrower's
funds
are deposited, and the principal bank of account of Borrower, as long as
any
Obligations are outstanding, and Borrower shall grant Lender the first and
last
opportunity to provide any corporate banking services required by Borrower
and
its Affiliates.
(k) Other
Amounts Deemed Loans.
If
Borrower fails to pay any tax, assessment, governmental charge or levy or
to
maintain insurance within the time permitted or required by this Note, or
to
discharge any Lien prohibited hereby, or to comply with any other Obligation,
Lender may, but shall not be obligated to, pay, satisfy, discharge or bond
the
same for the account of Borrower. To the extent permitted by law and at the
option of Lender, all monies so paid by ▇▇▇▇▇▇ on behalf of Borrower shall
be
deemed Obligations and ▇▇▇▇▇▇▇▇'s payments under this Note may be increased
to
provide for payment of such Obligations plus interest thereon.
(I) Further
Assurances.
Borrower shall execute, acknowledge and deliver, or cause to be executed,
acknowledged or delivered, any and all such further assurances and other
agreements or instruments, and take or cause to be taken all such other action,
as shall be reasonably necessary from time to time to give full effect to
the
Loan Documents and the transactions contemplated thereby.
6. DEFINITIONS.
Certain
capitalized terms have the meanings set forth on any exhibit hereto, in the
Security Agreement, if applicable, or any other Loan Document. All financial
terms used herein but not defined on the exhibits, in the Security Agreement,
if
applicable, or any other Loan Document have the meanings given to them by
generally accepted accounting principles. All other undefined terms have
the
meanings given to them in the Uniform Commercial Code as adopted in the state
whose law governs this instrument. The following definitions are used
herein:
(a) "Affiliate"
means, as to Borrower, (a) any person or entity which, directly or indirectly,
is in control of, is controlled by or is under common control with, Borrower,
or
(b) any person who is a director, officer or employee (i) of Borrower or
(ii) of
any person described in the preceding clause (a).
(b) "Lien"
means any security interest, mortgage, pledge, assignment, lien or other
encumbrance of any kind, including interests of vendors or lessors under
conditional sale contracts or capital leases.
(c) "Loan
Documents" means any and all Rate Management Agreements and each and every
document or agreement executed by any party evidencing, guaranteeing or securing
any of the Obligations, and "Loan Document" means any one of the Loan
Documents.
(d) "Obligation(s)"
means all loans, advances, indebtedness and each and every other obligation
or
liability of Borrower owed to each of Lender and/or any affiliate of Fifth
Third
Bancorp, however created, of every kind and description whether now existing
or
hereafter arising and whether direct or indirect, primary or as guarantor
or
surety, absolute or contingent, liquidated or unliquidated, matured or
unmatured, participated in whole or in part, created by trust agreement,
lease
overdraft, agreement or otherwise, whether or not secured by additional
collateral, whether originated with Lender or owed to others and acquired
by
Lender by purchase, assignment or otherwise, and including, without limitation,
all loans, advances, indebtedness and each and every obligation or liability
arising under the loan document, any and all Rate Management Obligations
(as
defined in the Loan Documents), letters of credit now or hereafter issued
by
Lender or any affiliate of Fifth Third Bancorp for the benefit of or at the
request of Borrower, all obligations to perform or forbear from performing
acts,
and agreements, instruments and documents evidencing, guarantying, securing
or
otherwise executed in connection with any of the foregoing, together with
any
amendments, modifications and restatements thereof, and all expenses and
attorneys' fees incurred by Lender hereunder or any other document, instrument
or agreement related to any of the foregoing.
(e) "Rate
Management Agreement" means any agreement, device or arrangement providing
for
payments which are related to fluctuations of interest rates, exchange rates,
forward rates, or equity prices, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants, and any
agreement pertaining to equity derivative transactions (e.g., equity or equity
index swaps, options, caps, floors, collars and forwards), including without
limitation any ISDA Master Agreement between Borrower and Lender or any
affiliate of Fifth Third Bancorp, and any schedules, confirmations and documents
and other confirming evidence between the parties confirming transactions
thereunder, all whether now existing or hereafter arising, and in each case
as
amended, modified or supplemented from time to time.
(f) "Rate
Management Obligations" means any and all obligations of Borrower to Lender
or
any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise
and howsoever and whensoever (whether now or hereafter) created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefore), under or in connection with (i) any
and
all Rate Management Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management
Agreement.
7. EVENTS
OF DEFAULT.
Upon
the occurrence of any of the following events (each, an "Event of Default"),
Lender may, at its option, without any demand or notice whatsoever, cease
making
advances and declare this Note and all Obligations to be fully due and payable
in their aggregate amount, together with accrued interest and all prepayment
premiums, fees, and charges applicable thereto:
(a) Any
failure to make any payment when due of principal or accrued interest on
this
Note or any other Obligation and such nonpayment remains uncured for a period
of
10 days thereafter.
(b) Any
representation or warranty of Borrower set forth in this Note or in any
agreement, instrument, document, certificate or financial statement evidencing,
guaranteeing, securing or otherwise related to, this Note or any other
Obligation shall be materially inaccurate or misleading.
(c) Borrower
shall fail to observe or perform any other term or condition of this Note
or any
other term or condition set forth in any agreement, instrument, document,
certificate or financial statement evidencing, guaranteeing or otherwise
related
to this Note or any other Obligation, or Borrower shall otherwise default
in the
observance or performance of any covenant or agreement set forth in any of
the
foregoing for a period of 30 days.
(d) The
death, legal incompetence or dissolution of Borrower or of any endorser or
guarantor of the Obligations, or the merger or consolidation of any of the
foregoing with a third party, or the lease, sale or other conveyance of a
material part of the assets or business of any of the foregoing to a third
party
outside the ordinary course of its business, or the lease, purchase or other
acquisition of a material part of the assets or business of a third party
by any
of the foregoing.
(e) Any
failure to submit to Lender current financial information upon
request.
(f) The
creation of any Lien (except a lien to Lender) on, the institution of any
garnishment proceedings by attachment, levy or otherwise against, the entry
of a
judgment against, or the seizure of, any of the property of Borrower or any
endorser or guarantor hereof including, without limitation, any property
deposited with Lender.
(g) In
the
judgment of Lender, any material adverse change occurs in the existing or
prospective financial condition of Borrower that may affect the ability of
Borrower to repay the Obligations, or the Lender deems itself
insecure.
(h) A
commencement by the Borrower or any endorser or guarantor of the Obligations
of
a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect; or the entry of a decree or order for relief
in
respect of the Borrower or any endorser or guarantor of the Obligations in
a
case under any such law or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of the Borrower
or
any endorser or guarantor of the Obligations, or for any substantial part
of the
property of Borrower or any endorser or guarantor of the Obligations, or
ordering the wind-up or liquidation of the affairs of Borrower or any endorser
or guarantor of the Obligations; or the filing and pendency for 30 days without
dismissal of a petition initiating an involuntary case under any such
bankruptcy, insolvency or similar law; or the making by Borrower or any endorser
or guarantor of the Obligations of any general assignment for the benefit
of
creditors; or the failure of the Borrower or any endorser or guarantor of
the
Obligations generally to pay its debts as such debts become due; or the taking
of action by the Borrower or any endorser or guarantor of the Obligations
in
furtherance of any of the foregoing.
(i) Nonpayment
by the Borrower of any Rate Management Obligation when due or the breach
by the
Borrower of any term, provision or condition contained in any Rate Management
Agreement.
8. REMEDIES.
Lender
may at its option at any time, without notice, proceed to enforce and protect
its rights hereunder by an action at law or in equity or by any other
appropriate proceedings; provided that this Note and the Obligations shall
be
accelerated automatically and immediately if the Event of Default is a filing
under the Bankruptcy Code. Borrower shall pay all costs of collection incurred
by ▇▇▇▇▇▇, including its attorney's fees, if this Note is referred to an
attorney for collection, whether or not payment is obtained before entry
of
judgment.
▇▇▇▇▇▇'s
rights and remedies hereunder are cumulative, and may be exercised together,
separately, and in any order. No delay on the part of Lender in the exercise
of
any such right or remedy shall operate as a waiver. No single or partial
exercise by Lender of any right or remedy shall preclude any other further
exercise of it or the exercise of any other right or remedy. No waiver or
indulgence by Lender of any Event of Default shall be effective unless in
writing and signed by ▇▇▇▇▇▇, nor shall a waiver on one occasion be construed
as
a waiver of any other occurrence in the future.
9. LATE
PAYMENTS: DEFAULT RATE FEES.
If any
payment is not paid when due (whether by acceleration or otherwise) or within
10
days thereafter, undersigned agrees to pay to Lender a late payment fee as
provided for in any loan agreement or 5% of the payment amount, whichever
is
greater with a minimum fee of $20.00. After an Event of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
agrees
to pay to Lender a fixed charge of $25.00, or ▇▇▇▇▇▇▇▇ agrees that Lender
may,
without notice, increase the Interest Rate by six percentage points (6%)
(the
"Default Rate"), whichever is greater. Lender may impose a non-sufficient
funds
fee for any check that is presented for payment that is returned for any
reason.
In addition, ▇▇▇▇▇▇ may charge loan documentation fees as may be reasonably
determined by the Lender.
10. PREPAYMENT.
Borrower may prepay all or part of this Note, which prepaid amounts shall
be
applied to the amounts due in reverse order of their due dates. Upon such
prepayments, including involuntary prepayment by acceleration, Borrower shall
pay a premium of 2% of the maximum principal amount permitted under this
Note.
Partial prepayments shall not excuse any subsequent payment due.
11. ENTIRE
AGREEMENT.
▇▇▇▇▇▇▇▇ agrees that there are no conditions or understandings which are
not
expressed in this Note and the documents referred to herein.
12. SEVERABILITY.
The
declaration of invalidity of any provision of this Note shall not affect
any
part of the remainder of the provisions.
13. ASSIGNMENT.
▇▇▇▇▇▇▇▇
agrees not to assign any of ▇▇▇▇▇▇▇▇'s rights, remedies or obligations described
in this Note without the prior written consent of Lender, which consent may
be
withheld in ▇▇▇▇▇▇'s sole discretion. ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇ may assign
some or all of its rights and remedies described in this Note without notice
to,
or prior consent from, the Borrower.
14. MODIFICATION:
WAIVER OF LENDER.
The
modification or waiver of any of Borrower's obligations or ▇▇▇▇▇▇'s rights
under
this Note must be contained in a writing signed by ▇▇▇▇▇▇. Lender may perform
Borrower's obligations, or delay or fail to exercise any of its rights or
remedies, without causing a waiver of those obligations or rights.
A
waiver
on one occasion shall not constitute a waiver on another occasion. Borrower's
obligations under this Note shall not be affected if Lender amends, compromises,
exchanges, fails to exercise, impairs or releases (i) any of the obligations
belonging to any co-borrower, endorser or guarantor or (ii) any of its rights
against any co-borrower, guarantor or endorser.
15. WAIVER
OF BORROWER.
Demand,
presentment, protest and notice of dishonor, notice of protest and notice
of
default are hereby waived by Borrower, and any endorser or guarantor hereof.
Each of Borrower, including but not limited, to all co-makers and accommodation
makers of this Note, hereby waives all suretyship defenses, including but
not
limited to, all defenses based upon impairment of Collateral and all suretyship
defenses described in Section 3-605 of the Uniform Commercial Code (the
"UCC"). Such
waiver is entered to the full extent permitted by Section 3-605 (i) of the
UCC.
16. GOVERNING
LAW; CONSENT TO JURISDICTION.
This
Note is delivered in, is intended to be performed in, will be construed and
enforceable in accordance with and governed by the internal laws of, the
State
of Michigan, without regard to principles of conflicts of law. ▇▇▇▇▇▇▇▇ agrees
that the state and federal courts in the County where the Lender is located
shall have exclusive jurisdiction over all matters arising out of this Note,
and
that service of process in any such proceeding shall be effective if mailed
to
Borrower at the address set forth herein.
17. JURY
WAIVER.
BORROWER,
AND ANY ENDORSER OR GUARANTOR HEREOF, WAIVE THE RIGHT TO A TRIAL BY JURY
OF ANY
MATTERS ARISING OUT OF THIS NOTE OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
BORROWER:
Birmingham
Bloomfield Bancorp, Inc. a Michigan Corporation
By:
/S/
▇▇▇▇▇▇ ▇▇▇▇
Authorized
Signer
▇▇▇▇▇▇
▇▇▇▇, President
(Print
name and Title)
By:
/S/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Authorized
Signer
▇▇▇▇▇▇▇
▇▇▇▇▇▇, Chief Financial Officer
(Print
name and Title)