PROMISSORY NOTE
| $6,000,000.00 |
November
__, 2006
|
Indianapolis,
Indiana
1. Agreement
to Pay.
FOR
XXXXX RECEIVED, XXXX
X. XXXXXXX (“Borrower”),
hereby promises to pay to the order of XXXXXX
X. XXXXXXX,
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.
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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 under any
other Loan Document (as hereinafter defined), shall be due and payable in full
at the Maturity Date.
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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 Xxxxxxxx, interest, principal payments and any fees and expenses owed Lender
from time to time will be deducted by Xxxxxx automatically on the due date,
as
designated in writing by Xxxxxxxx. 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 Xxxxxx 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. Xxxxxxxx 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, Xxxxxxxx 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 Xxxxxxxx that Xxxxxxxx’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.
Xxxxxxxx agrees to use the Loan to purchase shares of the common stock of
Fortune Industries, Inc. (“Fortune”) ( the “Purchased Stock”). Xxxxxxxx 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.
Xxxxxxxx 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 Xxxxxxxx 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 occur-rence 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, Xxxxxxxx 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.
Xxxxxxxx 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, 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.
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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,
Xxxxxxxx agrees to reimburse Lender for all fees and costs incurred by Xxxxxx
in
connection with the Loan, including reasonable attorney fees and costs.
11.9
Security
for Obligations.
As
security for the payment of this Note, Xxxxxxxx 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. Xxxxxxxx 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,
Xxxxxxxx agrees to indemnify, defend, and hold Lender harmless from and against
any and all damages, costs, expenses and liability that may be incurred by
Xxxxxx 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 Xxxxxxxx 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 Xxxxxx 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
registered or certified mail, return receipt requested, or (iii) by overnight
express carrier, addressed in each case as follows:
9
|
To
Lender:
|
Xxxxxx
X. Xxxxxxx
|
|
0000
Xxxxxxxxx Xxxxx
|
|
Indianapolis,
IN 46278
|
|
To
Borrower:
|
Xxxx
X. Xxxxxxx
|
|
0000
Xxxxxxxxx Xxxxx
|
|
Indianapolis,
IN 46278
|
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 XXXXXXXX’S
HOUSE AND PROPERTY (APPROXIMATELY 57 ACRES) LOCATED ON WEST 00XX
XXXXXX,
XXXXXXXXXXXX, XXXXXXX. XXXXXX 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 XXXXXX TO ACCEPT THIS NOTE, XXXXXXXX IRREVOCABLY
AGREES THAT, SUBJECT TO XXXXXX’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 CONNECTION WITH THIS NOTE, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
XXXXXXXX AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST XXXXXX ON ANY THEORY
OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES.
10
IN
WITNESS WHEREOF,
Xxxxxxxx has executed and delivered this Note as of the day and year first
written above.
|
BORROWER:
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|||
|
Xxxx
X. Xxxxxxx
|
|
STATE
OF INDIANA
|
)
|
|
|
|
)
SS:
|
|
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COUNTY
OF ____________
|
)
|
Before
me, a Notary Public in and for said County and State, personally appeared Xxxx
X. Xxxxxxx, 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.
|
Notary
Public
|
|||
|
Printed
|
|
My
Commission Expires:
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My
County of Residence:
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11
December
___, 2006
Xxxx
Xxxx
Wachovia
Securities Financial Network
0000
Xxxxxxxxx Xxxxx
Indianapolis,
IN 46278
Dear
Xxxx:
I
have
granted a first priority security interest in all of the securities held in
Wachovia Account #4143-6667 (the “Account”) to Xxxxxx X. Xxxxxxx (“Xxxxxx”). The
purpose of this letter is to perfect Xxxxxx’x security interest in all of the
securities held in the Account.
Unless
you receive written instructions from Xxxxxx 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 Xxxxxx, I may not withdraw any securities from the Account.
If
you receive written instructions from Xxxxxx 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 Xxxxxx without further
consent by me.
Thank
you
for your assistance.
|
Sincerely,
|
|||
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Xxxx
X. Xxxxxxx
|
In
agreement with the above:
|
Xxxx
Xxxx
|
|
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Xxxxxx
X. Xxxxxxx
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12
