Exhibit 3.2
PROMISSORY NOTE
$6,000,000.00 November ___, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
1. AGREEMENT TO PAY. FOR VALUE RECEIVED, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("BORROWER"),
hereby promises to pay to the order of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his successors and
assigns ("LENDER"), the principal sum of Six Million Dollars and Zero Cents
($6,000,000.00) ("LOAN"), at the place and in the manner hereinafter provided,
together with interest thereon at the rate or rates described below, and any and
all other amounts which may be due and payable hereunder from time to time
without relief from valuation or appraisement laws.
2. INTEREST RATE.
2.1 INTEREST PRIOR TO DEFAULT. Interest shall accrue on the
outstanding principal balance of this Note from the date hereof through
November 20, 2009 (the "Maturity Date") at an annual interest rate equal to
the LIBOR Rate (as hereinafter defined) plus two percent (2%) (the "Loan
Rate").
2.2 LIBOR RATE. The term "LIBOR Rate" means, with respect to a loan,
the rate per annum (rounded upwards, if necessary, to the next higher 1/16
of 1%) determined by the Lender and equal to the average rate per annum at
which deposits (denominated in United States dollars) in an amount similar
to the principal amount of that loan and with a maturity one month after
the date of reference are offered to the Lender at 11:00 A.M. London time
(or as soon thereafter as practicable) on the date of reference by banking
institutions in the London, United Kingdom market, as such interest rate is
referenced and reported by the British Bankers Association in the Bridge
Financial Telerate system "Page 3750" report or, if the same is
unavailable, any other generally accepted authoritative source of such
interest rate as the Lender may reference from time to time, provided, that
in the event the LIBOR Rate is unavailable as a result of Lender's good
faith determination of such, the LIBOR Rate shall be a fluctuating rate
equal to the prime rate. The LIBOR Rate shall be adjusted by the Lender, as
necessary, at the end of each business day during the term hereof. Lender
shall not be required to notify Borrower of any adjustment in the LIBOR
Rate; however, Borrower may request a quote of the prevailing LIBOR Rate on
any business day.
2.3 INTEREST AFTER DEFAULT. From and after the Maturity date or upon
the occurrence and during the continuance of an Event of Default, interest
shall accrue on the balance of principal remaining unpaid during any such
period at an annual rate ("DEFAULT RATE") equal to three percent (3%) plus
the Loan Rate; provided, however, in no event shall the Default Rate exceed
the maximum rate permitted by law. The interest accruing under this
paragraph shall be immediately due and payable by Borrower to the holder of
this Note upon demand and shall be additional indebtedness evidenced by
this Note.
2.4 INTEREST CALCULATION. Interest on this Note shall be calculated on
the basis of a 360-day year and the actual number of days elapsed in any
portion of a month in which interest is due.
2.5 LIBOR AVAILABILITY. If the Lender determines in good faith (which
determination shall be conclusive, absent manifest error) prior to the
commencement of any Interest Period (defined below) that (i) the making or
maintenance of any Loan would violate any applicable law, rule, regulation
or directive, whether or not having the force of law, (ii) United States
dollar deposits in the principal amount, and for periods equal to the
Interest Period for funding any Loan are not available in the London
Interbank Eurodollar market in the ordinary course of business, (iii) by
reason of circumstances affecting the London Interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the LIBOR Rate to be
applicable to the relevant Loan, or (iv) the LIBOR Rate does not accurately
reflect the cost to the Lender of a Loan, the Lender shall promptly notify
Borrower thereof and, so long as the foregoing conditions continue, the
Lender shall have no obligation to make any additional advances on the Loan
at the Loan Rate thereafter.
2.6 LIBOR REGULATORY CHANGE. If, after the date hereof, a regulatory
change shall, in the reasonable determination of the Lender, make it
unlawful for the Lender to make or maintain the Loan, then the Lender shall
promptly notify Borrower and none of the Loan may be advanced thereafter.
In addition, at Borrower's option, the Loan shall be immediately (i)
converted the Loan Rate to an interest rate based on the prime rate on the
last business day of the then existing Interest Period or on such earlier
date as required by law, or (ii) due and payable on the last business day
of the then existing Interest Period or on such earlier date as required by
law, all without further demand, presentment, protest or notice of any
kind, all of which are hereby waived by Borrower.
3. PAYMENT TERMS.
3.1 PRINCIPAL AND INTEREST. Payments of principal and interest due
under this Note, if not sooner declared to be due in accordance with the
provisions hereof, shall be made as follows:
(a) Commencing on December 20, 2006 and on the twentieth day of
each calendar month thereafter, accrued interest shall be due and
payable.
(b) Commencing on December 20, 2008 and on the twentieth day of
each calendar month thereafter, principal payments in the amount of
Seventy-One Thousand Four Hundred Twenty-Eight and 57/100 Dollars
($71,428.57) shall be due and payable.
(c) The unpaid principal balance of this Note, if not sooner paid
or declared to be due in accordance with the terms hereof, together
with all accrued and unpaid interest thereon and any other amounts due
and payable hereunder or
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under any other Loan Document (as hereinafter defined), shall be due
and payable in full at the Maturity Date.
3.2 APPLICATION OF PAYMENTS. Prior to the occurrence of an Event of
Default, all payments and prepayments on account of the indebtedness
evidenced by this Note shall be applied as follows: (a) first, to fees,
expenses, costs and other similar amounts then due and payable to Lender,
including, without limitation any prepayment premium, exit fee or late
charges due hereunder, (b) second, to accrued and unpaid interest on the
principal balance of this Note, (c) third, to the payment of principal due
in the month in which the payment or prepayment is made, (d) fourth, to any
escrows, impounds or other amounts which may then be due and payable, (e)
fifth, to any other amounts then due Lender hereunder, and (f) last, to the
unpaid principal balance of this Note. Any prepayment on account of the
indebtedness evidenced by this Note shall not extend or postpone the due
date or reduce the amount of any subsequent payment of interest due
hereunder. After an Event of Default has occurred and is continuing,
payments may be applied by Lender to amounts owed hereunder and under the
Loan Documents in such order as Lender shall determine, in its sole
discretion.
3.3 METHOD OF PAYMENTS. All payments of principal and interest
hereunder shall be paid by automatic debit, wire transfer, check or in coin
or currency which, at the time or times of payment, is the legal tender for
public and private debts in the United States of America and shall be made
at such place as Lender or the legal holder or holders of this Note may
from time to time appoint in the payment invoice or otherwise in writing.
Payment made by check shall be deemed paid on the date Lender receives such
check; provided, however, that if such check is subsequently returned to
Lender unpaid due to insufficient funds or otherwise, the payment shall not
be deemed to have been made and shall continue to bear interest until
collected. Notwithstanding the foregoing, the final payment due under this
Note must be made by wire transfer or other final funds. If requested by
Borrower, interest, principal payments and any fees and expenses owed
Lender from time to time will be deducted by Lender automatically on the
due date, as designated in writing by Borrower. Borrower will maintain
sufficient funds in the account on the dates Lender enters debits
authorized by this Note. If there are insufficient funds in the account on
the date Lender enters any debit authorized by this Note, the debit will be
reversed. Borrower may terminate this direct debit arrangement at any time
by sending written notice to Lender at the address specified herein for
notices.
3.4 LATE CHARGE. If any payment of interest or principal due hereunder
is not made within ten days after such payment is due in accordance with
the terms hereof, then, in addition to the payment of the amount so due,
Borrower shall pay to Lender a "late charge" of the greater of: (i) five
cents for each whole dollar so overdue or (ii) Twenty-Five Dollars ($25.00)
to defray part of the cost of collection and handling such late payment.
Borrower agrees that the damages to be sustained by the holder hereof for
the detriment caused by any late payment are extremely difficult and
impractical to ascertain, and that the amount of five cents for each one
dollar due is a reasonable estimate of such damages, does not constitute
interest, and is not a penalty.
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3.5 PREPAYMENT. If, for any reason, the Loan is paid prior to the last
business day of any Interest Period, whether voluntary, involuntary, by
reason of acceleration or otherwise, each such prepayment of the Loan will
be accompanied by the amount of accrued interest on the amount prepaid and
any and all reasonable costs, expenses, penalties and charges incurred by
the Lender as a result of the early termination or breakage of the Loan on
a date other than the last business day of the applicable Interest Period,
plus the amount, if any, by which (i) the additional interest which would
have been payable during the Interest Period on the Loan prepaid had it not
been prepaid, exceeds (ii) the interest which would have been recoverable
by the Lender by placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market, or other
appropriate money market selected by the Lender, for a period starting on
the date on which it was prepaid and ending on the last day of the Interest
Period for the Loan. The amount of any such loss or expense payable by
Borrower to the Lender under this section shall be determined in the
Lender's reasonable discretion based upon the assumption that the Lender
funded its loan commitment for the Loan in the London Interbank Eurodollar
market and using any reasonable attribution or averaging methods which the
Lender deems appropriate and practical, provided, however, that the Lender
is not obligated to accept a deposit in the London Interbank Eurodollar
market in order to charge interest on the Loan at the Loan Rate.
3.6 MANDATORY PREPAYMENT. On any date on which Borrower transfers the
Purchased Stock (defined below), a principal payment, in addition to any
regularly scheduled principal payment, shall be due and payable in the
amount equal to the greater of (i) the proceeds of such sale, or (ii) the
fair market value of the Purchased Stock so transferred, together with all
accrued and unpaid interest due to such date. Prepayments under this
Section 3.6 shall be applied to payments in the inverse order of when due.
3.7 INTEREST PERIOD. The phrase "Interest Period" shall mean the
designated periods for the Loan, which shall be thirty (30) days
(collectively, the "Interest Periods" and, individually, "Interest
Period"); provided, however, if deposits in United States dollars for such
Interest Period are not then being accepted by first class banks in the
London interbank market, such Interest Period may, at the option of
Borrower, be the next shorter or longer Interest Period.
3.8 CHANGES TO PAYMENT TERMS. On or about November 21, 2006, the
Lender borrowed the sum of twelve million dollars ($12,000,000.00) from
Fifth Third Bank (Central Indiana) (the "Original Note"). Immediately
thereafter, Borrower borrowed the sum of six million dollars
($6,000,000.00) from the Lender pursuant to the terms of this Note. It is
the intent of the Lender and Borrower that Borrower's payments to the
Lender be equal to fifty percent (50%) of the payments required by the
Lender pursuant to the Original Note. Notwithstanding anything herein to
the contrary, if the Lender or Borrower is able to renegotiate, refinance
or renew the Original Note to achieve more favorable terms and conditions
or a deferral of the principal payments, this Note may, in Borrower's
discretion, be amended or restated to reflect the more favorable terms and
conditions or the deferral of the principal payments.
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4. PURPOSE OF LOAN. Borrower agrees to use the Loan to purchase shares of
the common stock of Fortune Industries, Inc. ("Fortune") ( the "Purchased
Stock"). Borrower agrees to provide Lender with evidence of such purchase by
Borrower promptly upon the occurrence of the same. Upon purchase, the Purchased
Stock shall be deposited to Wachovia Account #4143-6667.
5. CONDITIONS TO LOAN. Notwithstanding any other provision of this Note,
the Lender shall not be required to disburse or make all or any portion of the
Loan if Borrower shall have failed to execute and deliver to the Lender any of
the following Loan Documents (collectively, the "Loan Documents"), all of which
must be satisfactory to the Lender in form, substance and execution:
5.1 LETTER TO WACHOVIA. An executed copy of a letter to Wachovia
Securities the form of which is attached hereto as Exhibit "A".
5.2 ADDITIONAL DOCUMENTS. Such other certificates, financial
statements, schedules, resolutions, opinions of counsel, notes and other
documents which are provided for hereunder or which the Lender shall
require.
6. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "EVENT OF DEFAULT" under this Note:
6.1 NONPAYMENT OF OBLIGATIONS. Any amount due and owing on this Note
or any of obligation of Borrower to Lender, whether by its terms or as
otherwise provided herein, is not paid within ten (10) days after the date
when such payment is due.
6.2 MISREPRESENTATION. Any oral or written warranty, representation,
certificate or statement in this Note or any other agreement with the
Lender shall be false when made or at any time.
6.3 NONPERFORMANCE. Any failure by Borrower to perform or default in
the performance of any covenant, condition or agreement contained in this
Note or any other agreement with Lender.
6.4 ASSIGNMENT FOR CREDITORS. Borrower makes an assignment for the
benefit of creditors, fails to pay, or admits in writing his inability to
pay his debts as they mature; or if a trustee of any substantial part of
the assets of Borrower is applied for or appointed.
6.5 BANKRUPTCY. Any proceeding involving Borrower is commenced by or
against Borrower under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law or statute
of the federal government or any state government.
6.6 JUDGMENTS. The entry of any material judgment, decree, levy,
attachment, garnishment or other process, or the filing of any Lien against
Borrower which is not fully covered by insurance.
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7. REMEDIES. At the election of the holder hereof, and without notice, the
principal balance remaining unpaid under this Note, and all unpaid interest
accrued thereon and any other amounts due hereunder, shall be and become
immediately due and payable in full upon the occurrence of any Event of Default.
Failure to exercise this option shall not constitute a waiver of the right to
exercise same in the event of any subsequent Event of Default. No holder hereof
shall, by any act of omission or commission, be deemed to waive any of its
rights, remedies or powers hereunder or otherwise unless such waiver is in
writing and signed by the holder hereof, and then only to the extent
specifically set forth therein. The rights, remedies and powers of the holder
hereof, as provided in this Note, are cumulative and concurrent, and may be
pursued singly, successively or together against Borrower, any guarantor
thereof, the security given at any time to secure the repayment hereof, all at
the sole discretion of the holder hereof. If any suit or action is instituted or
attorneys are employed to collect this Note or any part hereof, Borrower
promises and agrees to pay all costs of collection, including reasonable
attorneys' fees and court costs.
8. WAIVERS. Borrower and all others who now or may at any time become
liable for all or any part of the obligations evidenced hereby, expressly agree
hereby to be jointly and severally bound, and jointly and severally: (i) waive
and renounce any and all homestead, redemption and exemption rights and the
benefit of all valuation and appraisement privileges against the indebtedness
evidenced by this Note or by any extension or renewal hereof; (ii) waive
presentment and demand for payment, notices of nonpayment and of dishonor,
protest of dishonor, and notice of protest; (iii) waive any and all notices in
connection with the delivery and acceptance hereof and all other notices in
connection with the performance, default, or enforcement of the payment hereof
or hereunder; (iv) waive any and all lack of diligence and delays in the
enforcement of the payment hereof; (v) agree that the liability of Borrower,
guarantor, endorser or obligor shall be unconditional and without regard to the
liability of any other person or entity for the payment hereof, and shall not in
any manner be affected by any indulgence or forbearance granted or consented to
by Lender to any of them with respect hereto; (vi) consent to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Lender with respect to the payment or other provisions hereof, and to the
release of any security at any time given for the payment hereof, or any part
thereof, with or without substitution, and to the release of any person or
entity liable for the payment hereof; and (vii) consent to the addition of any
and all other makers, endorsers, guarantors, and other obligors for the payment
hereof, and to the acceptance of any and all other security for the payment
hereof, and agree that the addition of any such makers, endorsers, guarantors or
other obligors, or security shall not affect the liability of Borrower, any
guarantor and all others now liable for all or any part of the obligations
evidenced hereby. This provision is a material inducement for Lender making the
Loan to Borrower.
9. REPRESENTATIONS AND WARRANTIES. Any representation or warranty of the
Borrower contained herein or in any Loan Document shall be untrue or incorrect
as of the date of any Loan as though made on such date, except to the extent
such representation or warranty expressly relates to an earlier date.
10. NEGATIVE COVENANTS.
10.1 CHANGE OF LEGAL STATUS. Borrower shall not change his name or
state of residence without sixty (60) days prior written notice to the
Lender.
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10.2 ENCUMBRANCES. Borrower shall not, either directly or indirectly,
create, assume, incur or suffer or permit to exist any security interest or
charge of any kind or character upon the Purchased Stock held in Wachovia
Account #4143-6667 except for the security interest granted herein to the
Lender.
10.3 TRANSFER OR WITHDRAWAL OF THE PURCHASED STOCK. Borrower shall not
transfer or withdraw the Purchased Stock from Wachovia Account #4143-6667
without the prior written consent of Lender.
11. AFFIRMATIVE COVENANTS.
11.1 COMPLIANCE WITH BANK REGULATORY REQUIREMENTS. Upon demand by the
Lender, the Borrower shall reimburse the Lender for the Lender's additional
costs and/or reductions in the amount of principal or interest received or
receivable by the Lender if at any time after the date of this Note any
law, treaty or regulation or any change in any law, treaty or regulation or
the interpretation thereof by any governmental authority charged with the
administration thereof or any central bank or other fiscal, monetary or
other authority having jurisdiction over the Lender or the Loan, whether or
not having the force of law, shall impose, modify or deem applicable any
reserve (except reserve requirements taken into account in calculating the
Loan Rate) and/or special deposit requirement against or in respect of
assets held by or deposits in or for the account of the Loan by the Lender
or impose on the Lender any other condition with respect to this Note or
the Loan, the result of which is to either increase the cost to the Lender
of making or maintaining the Loan or to reduce the amount of principal or
interest received or receivable by the Lender with respect to such Loan.
Said additional costs and/or reductions will be those which directly result
from the imposition of such requirement or condition on the making or
maintaining of such Loan. The Loan shall be deemed to be match funded for
the purposes of the Lender's determination in the previous sentence.
Notwithstanding the foregoing, the Borrower shall not be required to pay
any such additional costs which could be avoided by the Lender with the
exercise of reasonable conduct and diligence.
11.2 MAINTAIN INSURANCE. The Borrower shall at all times insure and
keep insured in insurance companies acceptable to the Lender, all insurable
property owned by him which is of a character usually insured by parties
similarly situated and operating like properties, against loss or damage
from fire and such other hazards or risks as are customarily insured
against by parties similarly situated and operating like properties.
11.3 TAX LIABILITIES. Borrower shall at all times pay and discharge
all property and other taxes, assessments and governmental charges upon,
and all claims (including claims for labor, materials and supplies) against
Borrower or any of its properties.
11.4 BROKERAGE STATEMENTS.
11.5 As soon as available, and in any event, within thirty (30) days
following the end of each calendar month, Borrower shall furnish to Lender
a copy of the brokerage statements for Wachovia Account #4143-6667. OTHER
REPORTS. The Borrower shall,
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within such period of time as the Lender may specify, deliver to the Lender
such other schedules and reports as the Lender may reasonably require.
11.6 NOTICE OF PROCEEDINGS. The Borrower shall, promptly after
knowledge thereof, give written notice to the Lender of all threatened or
pending actions, suits, and proceedings before any court or governmental
department, commission, board or other administrative agency which may have
a material effect on the property of the Borrower.
11.7 NOTICE OF DEFAULT. The Borrower shall, promptly after the
commencement thereof, give notice to the Lender in writing of the
occurrence of an Event of Default or of any event which, with the lapse of
time, the giving of notice or both, would constitute an Event of Default
hereunder.
11.8 COMMITMENT FEE. Contemporaneous with execution of this Note,
Borrower shall pay Lender a commitment fee of Twenty Five Thousand Dollars
($25,000.00). In addition, Borrower agrees to reimburse Lender for all fees
and costs incurred by Lender in connection with the Loan, including
reasonable attorney fees and costs.
11.9 SECURITY FOR OBLIGATIONS. As security for the payment of this
Note, Borrower does hereby pledge, assign, transfer and deliver to the
Lender and does hereby grant to the Lender a continuing and unconditional
security interest in and to the Purchased Stock held in Wachovia Account
#4143-6667 Borrower shall, at the Lender's request, at any time and from
time to time, execute and deliver to the Lender such financing statements,
amendments and other documents and do such acts as the Lender reasonably
deems necessary in order to establish and maintain valid, attached and
perfected first security interests in the Purchased Stock in favor of the
Lender, free and clear of all liens and claims and rights of third parties
whatsoever.
12. OTHER GENERAL AGREEMENTS.
12.1 The Loan is a business loan and is not being made for personal,
family or household purposes. Borrower agrees that the Loan evidenced by
this Note is an exempted transaction under the Truth In Lending Act, 15
U.S.C., Section 1601, et seq.
12.2 No portion of the proceeds of the Loan shall be used by Borrower,
or any affiliates of Borrower, either directly or indirectly, for the
purpose of purchasing or carrying any margin stock, within the meaning of
Regulation U as adopted by the Board of Governors of the Federal Reserve
System.
12.3 Time is of the essence hereof.
12.4 This Note is governed and controlled as to validity, enforcement,
interpretation, construction, effect and in all other respects by the
statutes, laws and decisions of the State of Indiana. This Note may not be
changed or amended orally but only by an instrument in writing signed by
the party against whom enforcement of the change or amendment is sought.
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12.5 Lender shall not be construed for any purpose to be a partner,
joint venturer, agent or associate of Borrower or of any lessee, operator,
concessionaire or licensee of Borrower in the conduct of its business, and
by the execution of this Note, Borrower agrees to indemnify, defend, and
hold Lender harmless from and against any and all damages, costs, expenses
and liability that may be incurred by Lender as a result of a claim that
Lender is such partner, joint venturer, agent or associate.
12.6 This Note has been made and delivered at Indianapolis, Indiana
and all funds disbursed to or for the benefit of Borrower will be disbursed
in Indianapolis, Indiana.
12.7 The obligations and liabilities of Borrower under this Note shall
be binding upon and enforceable against Borrower and its successors and
assigns. This Note shall inure to the benefit of and may be enforced by
Lender and its successors and assigns.
12.8 If any provision of this Note is deemed to be invalid by reason
of the operation of law, or by reason of the interpretation placed thereon
by any administrative agency or any court, Borrower and Lender shall
negotiate an equitable adjustment in the provisions of the same in order to
effect, to the maximum extent permitted by law, the purpose of this and the
validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain in
full force and effect.
12.9 If the interest provisions herein shall result, at any time
during the Loan, in an effective rate of interest which, for any month,
exceeds the limit of usury or other laws applicable to the Loan, all sums
in excess of those lawfully collectible as interest of the period in
question shall, without further agreement or notice between or by any party
hereto, be applied upon principal immediately upon receipt of such monies
by Lender, with the same force and effect as though the payer has
specifically designated such extra sums to be so applied to principal and
Lender had agreed to accept such extra payment(s) as a premium-free
prepayment. Notwithstanding the foregoing, however, Lender may at any time
and from time to time elect by notice in writing to Borrower to reduce or
limit the collection to such sums which, when added to the said
first-stated interest, shall not result in any payments toward principal in
accordance with the requirements of the preceding sentence. In no event
shall any agreed to or actual exaction as consideration for this Loan
transcend the limits imposed or provided by the law applicable to this
transaction or the makers hereof in Indiana for the use or detention of
money or for forbearance in seeking its collection.
12.10 Lender may at any time assign its rights in this Note. In
addition, Lender may at any time sell one or more participations in the
Note. Borrower may not assign its interest in this Note, or any other
agreement with Lender or any portion thereof, either voluntarily or by
operation of law, without the prior written consent of Lender.
12.11 All notices, communications and waivers under this Note shall be
in writing and shall be (i) delivered in person or (ii) mailed, postage
prepaid, either by
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registered or certified mail, return receipt requested, or (iii) by
overnight express carrier, addressed in each case as follows:
To Lender: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Borrower: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to any other address as to any of the parties hereto, as such party
shall designate in a written notice to the other party hereto. All notices
sent pursuant to the terms of this Note shall be deemed received (i) if
personally delivered, then on the date of delivery, (ii) if sent by
overnight, express carrier, then on the next federal banking day
immediately following the day sent, or (iii) if sent by registered or
certified mail, then on the earlier of the third federal banking day
following the day sent or when actually received.
12.12 NON-RECOURSE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
UPON ANY DEFAULT BY BORROWER UNDER THE TERMS OF THIS NOTE, LENDER SHALL
HAVE NO RECOURSE AGAINST BORROWER'S HOUSE AND PROPERTY (APPROXIMATELY 57
ACRES) LOCATED ON ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. LENDER
RECOGNIZES THAT THE PRECEDING SENTENCE MAY SIGNIFICANTLY LIMIT LENDER'S
ABILITY TO COLLECT ANY OR ALL AMOUNTS DUE UNDER THIS NOTE.
13. CONSENT TO JURISDICTION. TO INDUCE LENDER TO ACCEPT THIS NOTE, BORROWER
IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S SOLE AND ABSOLUTE ELECTION, ALL
ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE WILL BE
LITIGATED IN COURTS HAVING SITUS IN INDIANAPOLIS, INDIANA. BORROWER HEREBY
CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN
INDIANAPOLIS, INDIANA WAIVES PERSONAL SERVICE OF PROCESS UPON BORROWER, AND
AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED
TO BORROWER AT THE ADDRESS STATED IN HEREIN AND SERVICE SO MADE WILL BE DEEMED
TO BE COMPLETED UPON ACTUAL RECEIPT.
14. WAIVER OF JURY TRIAL. BORROWER AND LENDER (BY ACCEPTANCE OF THIS NOTE),
HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS (A) UNDER THIS NOTE OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION WITH THIS NOTE OR (B) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN
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CONNECTION WITH THIS NOTE, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER AGREES THAT IT WILL NOT
ASSERT ANY CLAIM AGAINST LENDER ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the
day and year first written above.
BORROWER:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
STATE OF INDIANA )
) SS:
COUNTY OF _________________)
Before me, a Notary Public in and for said County and State, personally
appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who, after having been duly sworn, acknowledged the
execution of the foregoing Promissory Note for as his voluntary act and deed.
Witness my hand and Notarial Seal this ____ day of November, 2006.
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Notary Public
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Printed
My Commission Expires:
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My County of Residence:
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December ___, 2006
▇▇▇▇ ▇▇▇▇
Wachovia Securities Financial Network
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇:
I have granted a first priority security interest in all of the securities
held in Wachovia Account #4143-6667 (the "Account") to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇"). The purpose of this letter is to perfect Carter's security interest
in all of the securities held in the Account.
Unless you receive written instructions from ▇▇▇▇▇▇ to the contrary, I may
purchase or sell securities in the Account and receive all interest and regular
cash dividends relating to the securities in the Account. Without prior written
instructions from ▇▇▇▇▇▇, I may not withdraw any securities from the Account. If
you receive written instructions from ▇▇▇▇▇▇ that he will exercise exclusive
control over the Account, you should cease complying with any instructions given
by me and should comply with any instructions given by ▇▇▇▇▇▇ without further
consent by me.
Thank you for your assistance.
Sincerely,
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
In agreement with the above:
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▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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