EXHIBIT 10.2
Standard LIBOR Grid Note Agreement with
Manufacturers and Traders Trust Company
Dated July 22, 2001
STANDARD LIBOR GRID NOTE
New York
July 22, 2001
$5,000,000.00
BORROWER: ABLEST INC., a corporation organized under the laws of Delaware
Address of residence/chief executive office: 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000
BANK: MANUFACTURERSADERS TRUST COMPANY, a New York banking corporation with its
principal banking office at One M&T Plaza, Buffalo, New York 14240 Attention:
Office of General Counsel
I. DEFINITIONS. Each capitalized term shall have the meaning specified herein
and the following terms shall have the indicated meanings:
a. "Authorized Person" shall mean, each individually, Xxxx Xxxxxxxxxx,
Xxxxx Hunger, Xxxxxx Xxxxxx . Mention of the Authorized Person's name
is for reference purposes only and the Bank may rely on a person's
title to ascertain whether someone is an Authorized Person.
b. "Automatic Adjustment Date" shall mean two (2) Business Days before
the last day of the Interest Period initially selected by the Borrower
for a LIBOR Rate Loan that is subject to the Automatic Continuation
Option.
c. "Automatic Continuation Option" shall mean the option to have the
interest Period for a LIBOR Rate Loan to automatically continue at the
same Interest Period duration initially selected by the Borrower for
such LIBOR Rate Loan as of the last day such Interest Period.
d. "Base Rate" shall mean equal to the rate of interest announced by
the Bank as its prime rate of interest ("Prime').
e. "Base Rate Loan" shall mean a Loan which bears interest at the Base
Rate.
f. "Business Day" shall mean any day of the year on which banking
institutions in New York, New York are not authorized or required by
law or other governmental action to close and, in connection with the
LIBOR Rate, on which dealings are carried on in the London interbank
market.
g. "Continuation Date" shall mean the date on which Borrower's election
to continue a LIBOR Rate Loan for another Interest Period becomes
effective in accordance with this Note.
h. "Conversion Date" shall mean the date on which Borrower's election
to convert a Base Rate Loan to a LIBOR Rate Loan or a LIBOR Rate Loan
to a Base Rate Loan becomes effective in accordance with this Note.
i. "Interest Period" shall mean, as to any LIBOR Rate Loan, the period
commencing on the Draw Date, the Conversion Date or Continuation Date
for such LIBOR Rate Loan and ending on the numerically corresponding
day (or, if there is no numerically corresponding day, on the last day)
of the calendar month that is one (1), two (2) or three (3) months
thereafter, in each case as Borrower may elect; provided, however, that
if an Interest Period would end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business
Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day.
j. "Draw Date" shall mean, in relation to any Loan, the Business Day on
which such Loan is made, or to be made, to Borrower pursuant to the
Note.
k. "LIBOR Rate Loan" shall mean a Loan which bears interest at the
LIBOR Rate.
l. "LIBOR" shall mean the rate obtained by dividing (i) the one, two or
three month interest period London Interbank Offered Rate (as selected
by Borrower) as fixed by the British Bankers Association for United
States dollar deposits in the London Interbank Eurodollar Market at
approximately I 1:00 a.m. London, England time (or as soon thereafter
as practicable) as determined by the Bank from any broker, quoting
service or commonly available source utilized by the Bank by (ii) a
percentage equal to 100% minus the stated maximum rate of all reserves
required to be maintained against 'Eurocurrency Liabilities" as
specified in Regulation D (or against any other category of liabilities
which includes deposits by reference to which the interest rate on
LIBOR Rate Loan or Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States'
office of a bank to United States' residents) on such date to any
member bank of the Federal Reserve System.
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m. "LIBOR Rate" shall mean 2.5 percentage points above LIBOR with an
Interest Period selected by Borrower.
n. "Loan" means a loan made to Borrower by the Bank pursuant to this
Note.
o. "Maximum Principal Amount" shall mean FIVE MILLION DOLLARS AND NO
CENTS ($5,000,000.00).
p. "Minimum Borrowing Amount' shall mean (i) for Base Rate Loans, any
whole dollar increment and (ii) for LIBOR Rate Loans, $100,000.00 with
minimum increments thereafter of $100,000.00; provided, however, in no
event shall the Minimum Borrowing Amount for a LIBOR Rate Loan be less
than $100,000.00 with minimum increments thereafter of $100,000.00.
q. "Outstanding Principal Amount" shall mean the actual outstanding
principal amount under this Note at any time.
2. PAYMENT OF PRINCIPAL, INTEREST AND EXPENSES
a. Promise to Pay. For value received, and intending to be legally bound,
Borrower promises to pay to the order of the Bank on demand, the Maximum
Principal Amount or the Outstanding Principal Amount, if less; plus interest as
set forth below and all fees and costs (including without limitation attorneys'
fees and disbursements, whether for internal or outside counsel) the Bank incurs
in order to collect any amount due under this Note, to negotiate or document a
workout or restructuring, or to preserve its rights or realize upon any guaranty
or other security for the payment of this Note ('Expenses").
b. Interest. Each Loan shall earn interest on the Outstanding Principal Amount
thereof calculated on the basis of a 360-day year for the actual number of days
of each year (365 or 366) that on each day shall be:
i. LIBOR Rate Loans. Interest shall accrue on a LIBOR Rate Loan from
and including the first day of the Interest Period applicable thereto
until, but not including, the last day of such Interest Period or the
day the LIBOR Rate Loan is paid in full (if sooner) at a rate per annum
equal to the LIBOR Rate in effect on the following dates (depending on
the circumstance): (i) for new LIBOR Rate Loans, the Business Day the
Bank receives (or is deemed to receive) a Request for a LIBOR Rate
Loan; (ii) for conversions and continuations of LIBOR Rate Loans
pursuant to Section 4, the Business Day the Bank receives (or is deemed
to receive) the Notice of Conversion or Notice of Continuation, as the
case may be, in accordance with Section 4(b); for LIBOR Rate Loans
where the Automatic Continuation Option is selected, the Automatic
Adjustment Date for such LIBOR Rate Loan.
ii. Base Rate Loans. Interest shall accrue on a Bass Rate Loan from and
including the first date the Base Rate Loan was made (i.e., the Draw
Date or the Conversion Date, as the case may be) to, but not including,
the day such Base Rate Loan is paid in full or converted, at the rate
per annum equal to the Base Rate. Any change in the Base Rate resulting
from a change in Prime shall be effective on the date of such change.
c. Maximum Legal Rate. It is the intent of the Bank and of Borrower that in no
event shall interest be payable at a rate in excess of the maximum rate
permitted by applicable law (the "Maximum Legal Rate'). Solely to the extent
necessary to prevent interest under this Note from exceeding the Maximum Legal
Rate, any amount that would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a mistake and
automatically canceled, and, if received by the Bank, shall be refunded to
Borrower.
d. Payments; Late Charge; Default Rate. Payments shall be made in immediately
available United States funds at any banking office of the Bank. Absent demand
for payment in full, interest shall be due and payable as follows: unless
demanded sooner, (i) in respect to each Base Rate Loan, monthly when invoiced
and (ii) in respect to each LIBOR Rate Loan, on the last day of each Interest
Period applicable thereto. If payment is not received within five days of its
due date, Borrower shall pay a late charge equal to the greatest of (a) 5% of
the delinquent amount, (b) the Bank's then current late charge as announced by
the Bank from time to time, or (c) $50.00. In addition, if the Bank has not
actually received any payment under this Note within thirty days after its due
date, from and after such thirtieth day the interest rate for all amounts
outstanding under this Note shall automatically increase to 5 percentage points
above the higher of the Base Rate or the highest LIBOR Rate, and any judgment
entered hereon or otherwise in connection with any suit to collect amounts due
hereunder shall bear interest at such default rate. Payments may be applied in
any order in the sole discretion of the Bank but, prior to demand, shall be
applied first to past due interest, Expenses, late charges, and principal
payments, if any, which are past due, then to current interest and Expenses and
late charges, and last to remaining principal.
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e. Prepayment of LIBOR Rate Loans. If (i) Borrower pays, in whole or in part,
any LIBOR Rate Loan, before the expiration of its respective Interest Rate
Period, (ii) fails to draw down, in whole or in part, a LIBOR Rate Loan after
giving a Request therefor, (iii) otherwise tries to revoke any LIBOR Rate Loan,
in whole or in part, or (iv) there occurs a Bankruptcy Event or the applicable
rate is converted from the LIBOR Rate to the Base Rate pursuant to Section 4(d),
then Borrower shall be liable for and shall pay the Bank, on demand, the higher
of $250.00 or the actual amount of the liabilities, expenses, costs or funding
losses that are a direct or indirect result of such prepayment, failure to draw,
early termination of an Interest Period, revocation, bankruptcy or otherwise,
whether such liability, expense, cost or loss is by reason of (a) any reduction
in yield, by reason of the liquidation or reemployment of any deposit or other
funds acquired by the Bank, (b) the fixing of the interest rate payable on any
LIBOR Rate Loans or (c)otherwise. The determination by the Bank of the amount of
foregoing amount shall, in the absence of manifest error, be conclusive and
binding upon Borrower.
3. LOANS.
a. General. Any Loan hereunder shall either be in the form of a Base Rate Loan
or a LIBOR Rate Loan. No Loan, or any portion thereof, shall be made to the
extent that the sum of the (i) principal amount of the requested Loan, or any
portion thereof and (ii) the Outstanding Principal Amount of all Loans under the
Note exceeds the Maximum Principal Amount under this Note. The Bank may make any
Loan in reliance upon any oral, telephonic, written, teletransmitted or other
request (the "Request(s)") that the Bank in good faith believes to be valid and
to have been made by Borrower or on behalf of Borrower by an Authorized Person.
The Bank may act on the Request of any Authorized Person until the Bank shall
have received from Borrower, and had a reasonable time to act on, written notice
revoking the authority of such Authorized Person. The Bank shall incur no
liability to Borrower or to any other person as a direct or indirect result of
making any Loan pursuant to this paragraph.
b. Request for LIBOR Rate Loans. Borrower shall give the Bank its irrevocable
Request for a LIBOR Rate Loan specifying:
i. the Draw Date for the LIBOR Rate Loan, which shall be a two (2)
Business Days from the date the Request; provided, however if a Request
is received by the Bank after 2:00 p.m. (Eastern Standard Time), the
Request for the LIBOR Rate Loan shall be deemed to have been received
on the next Business Day;
ii. the aggregate amount of such LIBOR Rate Loan, which amount shall
not be less than the Minimum Borrowing Amount;
iii. the applicable Interest Period (i.e., 1, 2 or 3 month Interest
Period); and
iv. whether Borrower is electing to have the Automatic Continuation
Option for such LIBOR Rate Loan.
c. Requests for Base Rate Loans. Borrower may request any Base Rate Loan not
later than 2:00 p.m. (Eastern Standard Time) on any proposed Draw Date
specifying the aggregate amount of such Base Rate Loan.
d. Delivery of Requests Delivery of a Notice or Request for a LIBOR Rate Loan or
a Base Rate Loan shall be made to the Bank at the following as follows, or such
other address designated by the Bank from time to time:
Manufacturers and Traders Trust Company
Attn: Xxxxx Xxxxx
Fax No. 000-000-0000
Telephone No. 000-000-0000
4. CONTINUATION and CONVERSION ELECTIONS.
a. Election. An Authorized Person of Borrower may, upon irrevocable Request to
the Bank,
i. elect to convert on any Business Day any Base Rate Loan into a LIBOR
Rate Loan provided the amount converted is not less than the Minimum
Borrowing Amount; or
ii. elect to convert any or a part of LIBOR Rate Loan as of the last
day of the applicable Interest Period into a Base Rate Loan provided no
partial conversion of a LIBOR Rate Loan shall reduce the outstanding
principal amount of such LIBOR Rate Loan to less than the Minimum
Borrowing Amount; or
iii. elect to continue all or a part (subject to the Minimum Borrowing
Amount limitation) of any LIBOR Rate Loan as of the last day of the
Interest Period applicable to such LIBOR Rate Loan with the same or
different Interest Period provided no partial continuation of a LIBOR
Rate Loan with a different Interest Period shall reduce the outstanding
principal amount of the LIBOR Rate Loan with the same Interest Period
to less than the Minimum Borrowing Amount.
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b. Notice of Conversion/Continuation.
i. For an election under Section 4(a)(i) or 4(a)(iii), an Authorized
Person must deliver to the Bank by 2:00 p.m. (Eastern Standard Time) on
a Business Day a Notice of Conversion ("Notice of Conversion') for an
election under Section 4(a)(i) or a Notice of Continuation ("Notice of
Continuation") for an election under Section 4(a)(iii) specifying:
(a) the aggregate amount of the Loans to be converted or
continued;
(b) the duration of the requested Interest Period (i.e., 1, 2
or 3 month Interest Period); and
(c) whether the Automatic Continuation Option will be
activated for such LIBOR Rate Loan.
ii. The Continuation Date or Conversion Date (as the case may be) shall
be the later of (A) two (2) Business Days from the Business Day the
Bank receives the Notice of Conversion or Notice of Continuation
(either, a 'Notice') in accordance with the foregoing Section or (B)
the last day of the relevant Interest Period if a Notice is received by
the Bank more than two (2) Business Days before the last day of an
Interest Period. If a Notice is received after 2:00 p.m. (Eastern
Standard Time), the Notice will be deemed to have been received on the
next Business Day. Notice of Continuation received more than two (2)
Business Days before the end of an Interest Period shall be deemed to
have been received two (2) Business Days before the end of such
Interest Period for purposes of determining the LIBOR Rate for the next
Interest Period per Section 2(b)(i). Accordingly, if, for example,
Borrower has a LIBOR Rate Loan with a one month Interest Period ending
on June 15 and wants to continue the LIBOR Rate Loan with a two month
Interest Period, Borrower must deliver its Notice of Continuation
identifying the new two month Interest Period to the Bank by 2:00 p.m.
(Eastern Standard Time) on June 13 (provided that June 13 and June 14
are Business Days).
iii. For LIBOR Rate Loans where Borrower has elected to activate the
Automatic Continuation Option, the Bank shall automatically continue
such LIBOR Rate Loan with an same Interest Period initially selected by
the Borrower. Once the Automatic Continuation Option has been activated
for a LIBOR Rate Loan, the submission of a Notice of Conversion or a
Notice of Continuation with a different Interest Period shall result in
the cancellation of the Automatic Continuation Option for such LIBOR
Rate Loan.
iv. For an election under Section 4(a)(ii), an Authorized Person may
deliver to the Bank a Notice of Conversion at any time during an
Interest Period up to the last day of such Interest Period or may have
the LIBOR Rate Loan automatically convert to a Base Rate Loan pursuant
to Section 4(c). Any such Notice of Conversion delivered during an
Interest Period shall be effective on the last day of the Interest
Period.
v. The Bank may take action on any Notice in reliance upon any
oral, telephonic, written or teletransmitted Notice that the Bank in
good faith believes to be valid and to have been made by Borrower or on
behalf of Borrower by an Authorized Person. No Notice may be delivered
by e-mail. The Bank may act on the Notice from any Authorized Person
until the Bank shall have received from Borrower, and had a reasonable
time to act on, written notice revoking the authority of such
Authorized Person. The Bank shall incur no liability to Borrower or to
any other person as a direct or indirect result of acting on any Notice
under this Note. The Bank, in its sole discretion, may reject any
Notice that is incomplete.
c. Expiration of Interest Period. If Borrower does not submit a Notice of
Continuation in accordance with Section 4(b)(i) and 4(b)(ii) so that the Bank
receives the Notice of Continuation at least two (2) Business Days before the
end of an Interest Period, the LIBOR Rate Loan shall automatically be converted
into a Base Rate Loan and such Loan shall accrue interest at the Base Rate until
two (2) Business Days after the Bank receives a Notice of Conversion pursuant to
Section 4(b)(i) and 4(b)(ii) electing to convert the Loan from a Base Rate Loan
to a LIBOR Rate Loan pursuant to Section 4(a)(i). A Notice of Continuation
received one (1) Business Day before the end of an Interest Period will not
effect a continuation of such Loan as a LIBOR Rate Loan. Rather, such LIBOR Rate
Loan shall automatically convert to a Base Rate Loan on the last day of the
Interest Period. The late Notice of Continuation, however, will be deemed to be
a Notice of Conversion that will be effective two (2) Business Days from the
date received by the Bank.
d. Conversion upon Default. Unless the Bank shall otherwise consent in writing,
if (i) Borrower has failed to pay when due, in whole or in part, the
indebtedness under the Note (whether by demand or otherwise), or (ii) there
exists a condition or event which with the passage of time, the giving of notice
or both shall constitute an event of default under any of Borrower's agreement
with the Bank, if any, Borrower may not elect to have a Loan converted or
continued as a LIBOR Rate Loan or have any Loan made as a LIBOR Rate Loan.
Further, the Bank, in its sole discretion, may (i) permit any outstanding LIBOR
Rate Loans to continue until the last day of the applicable Interest Period at
which time such Loan shall automatically be converted into a Base Rate Loan or
(ii) convert any outstanding LIBOR Rate Loans into a Base Rate Loan before the
end of the applicable Interest Period applicable to such LIBOR Rate Loan.
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Notwithstanding the foregoing, if Borrower commences, or has commenced against
it, any proceeding or request for relief under any bankruptcy, insolvency or
similar laws now or hereafter in effect in the United States of America or any
state or territory thereof or any foreign jurisdiction or any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against
or winding up of affairs of Borrower (a 'Bankruptcy Event'), any outstanding
LIBOR Rate Loans shall be automatically converted to Base Rate Loans without
further action by the Bank and Borrower's rights to have Base Rate Loans
converted under Section 4 shall be automatically terminated. Nothing herein
shall be construed to be a waiver by the Bank to have any Loan accrue interest
at the Default Rate of interest (which shall be calculated from the higher of
the LIBOR Rate or the Base Rate) or the right of the Bank to the amounts set
forth in Section 2(e) of this Note.
5. SETOFF. The Bank shall have the right to set off against the amounts owing
under this Note any property held in a deposit or other account with the Bank or
any of its affiliates or otherwise owing by the Bank or any of its affiliates in
any capacity to Borrower or any guarantor or endorser of this Note. Such set-off
shall be deemed to have been exercised immediately at the time the Bank or such
affiliate elect to do so.
6. DEMAND FACILITY. The Bank may modify, restrict, suspend or terminate the
credit under this Note at any time for any reason and without affecting
Borrower's then existing obligation under this Note. The Bank shall have the
sole and absolute discretion whether to make any Loan or any portion of any Loan
requested by Borrower, and the Bank may refuse to make any requested Loan even
though the sum of the requested Loan and the Outstanding Principal Amount would
not exceed the Maximum Principal Amount. This is a demand Note and all amounts
hereunder shall become immediately due and payable upon demand by the Bank;
provided, however, that the Outstanding Principal Amount of this Note and all
accrued and unpaid interest shall automatically become immediately due and
payable upon the occurrence of a Bankruptcy Event with regard to Borrower or any
guarantor or endorser of this Note. Borrower hereby waives protest, presentment
and notice of any kind in connection with this Note.
7. BANK RECORDS CONCLUSIVE. The Bank shall set forth on a schedule attached to
this Note or maintained on computer, the date and original principal amount of
each Loan and the date and amount of each payment to be applied to the
Outstanding Principal Amount of this Note. The Outstanding Principal Amount set
forth on any such schedule shall be presumptive evidence of the Outstanding
Principal Amount of this Note and of all Loans. No failure by the Bank to make,
and no error by the Bank in making, any annotation on any such schedule shall
affect the Borrower's obligation to pay the principal and interest of each Loan
or any other obligation of Borrower to the Bank pursuant to this, Note.
8. PURPOSE. Borrower certifies (a.) that no Loan will be used to purchase margin
stock except with the Bank's express prior written consent for each such
purchase and (b.) that all Loans shall be used for a business purpose, and not
for any personal, family or household purpose.
9. AUTHORIZATION. Borrower, if a corporation, partnership, limited liability
company, trust or other entity, represents that it is duly organized and in good
standing or duly constituted in the state of its organization and is duly
authorized to do business in all jurisdictions material to the conduct of its
business; that the execution, delivery and performance of this Note have been
duly authorized by all necessary regulatory and corporate or partnership action
or by its governing instrument; that this Note has been duly executed by an
authorized officer, partner or trustee and constitutes a binding obligation
enforceable against Borrower and not in violation of any law, court order or
agreement by which Borrower is bound; and that Borrower's performance is not
threatened by any pending or threatened litigation.
10. INABILITY TO DETERMINE LIBOR RATES, INCREASED COSTS, ILLEGALITY.
a. Increased Costs. If the Bank shall determine that, due to either (a) the
introduction of any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the LIBOR) in or
in the interpretation of any requirement of law or (b) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to the Bank of agreeing to make or making, funding or maintaining any LIBOR
Rate Loans, then Borrower shall be liable for, and shall from time to time, upon
demand therefor by the Bank and pay to the Bank such additional amounts as are
sufficient to compensate the Bank for such increased costs.
b. Inability to Determine Rates. If the Bank shall determine that for any reason
adequate and reasonable means do not exist for ascertaining LIBOR for any
requested Interest Period with respect to a proposed LIBOR Rate Loan, the Bank
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will give notice of such determination to Borrower. Thereafter, the Bank may not
make or maintain LIBOR Rate Loans, as the case may be, hereunder until the Bank
revokes such notice in writing. Upon receipt of such notice, Borrower may revoke
any request for a LIBOR Rate Loan or Notice then submitted by it. If Borrower
does not revoke such notice the Bank may make, or continue the Loans, as
proposed by Borrower, in the amount specified in the applicable request
submitted by Borrower, but such Loans shall be made or continued as Base Rate
Loans instead of LIBOR Rate Loans, as the case may be.
c. Illegality. If the Bank shall determine that the introduction of any law
(statutory or common), treaty, rule, regulation, guideline or determination of
an arbitrator or of a governmental authority or in the interpretation or
administration thereof, has made it unlawful, or that any central bank or other
governmental authority has asserted that it is unlawful for the Bank to make
LIBOR Rate Loans, then, on notice thereof by the Bank to Borrower, the Bank may
suspend the making of LIBOR Rate Loans until the Bank shall have notified
Borrower that the circumstances giving rise to such determination shall no
longer exist. If the Bank shall determine that it is unlawful to maintain any
LIBOR Rate Loans, Borrower shall prepay in full all LIBOR Rate Loans then
outstanding, together with accrued interest, either on the last date of the
Interest Period thereof if the Bank may lawfully continue to maintain such LIBOR
Rate Loans to such day, or immediately, if the Bank may not lawfully continue to
maintain such LIBOR Rate Loans. If Borrower is required to prepay any LIBOR Rate
Loan immediately as set forth in this subsection, then concurrently with such
prepayment, Borrower may borrow from the Bank, in the amount of such repayment,
a Base Rate Loan.
11. MISCELLANEOUS. This Note, together with any related loan and security
agreements and guaranties, contains the entire agreement between the Bank and
Borrower with respect to the Note, and supersedes every course of dealing, other
conduct, oral agreement and representation previously made by the Bank. All
rights and remedies of the Bank under applicable law and this Note or amendment
of any provision of this Note are cumulative and not exclusive. No single,
partial or delayed exercise by the Bank of any right or remedy shall preclude
the subsequent exercise by the Bank at any time of any right or remedy of the
Bank without notice. No waiver or amendment of any provision of this Note shall
be effective unless made specifically in writing by the Bank. No course of
dealing or other conduct, no oral agreement or representation made by the Bank,
and no usage of trade, shall operate as a waiver of any right or remedy of the
Bank. No waiver of any right or remedy of the Bank shall be effective unless
made specifically in writing by the Bank. Borrower agrees that in any legal
proceeding, a copy of this Note kept in the Bank's course of business may be
admitted into evidence as an original. This Note is a binding obligation
enforceable against Borrower and its successors and assigns and shall inure to
the benefit of the Bank and its successors and assigns. If a court deems any
provision of this Note invalid, the remainder of the Note shall remain in
effect. Section headings are for convenience only. Singular number includes
plural and neuter gender includes masculine and feminine as appropriate.
12. NOTICES. Any demand or notice hereunder or under any applicable law
pertaining hereto shall be in writing and duly given if delivered to Borrower
(at its address on the Bank's records) or to the Bank (at the address on page
one and separately to the Bank officer responsible for Borrower's relationship
with the Bank). Such notice or demand shall be deemed sufficiently given for all
purposes when delivered (i) by personal delivery and shall be deemed effective
when delivered, or (ii) by mail or courier and shall be deemed effective three
(3) business days after deposit in an official depository maintained by the
United States Post Office for the collection of mail or one (1) business day
after delivery to a nationally recognized overnight courier service (e.g.,
Federal Express). Notice by e-mail is not valid notice under this or any other
agreement between Borrower and the Bank.
13. JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts which become due under this Note
and the term "Borrower" shall include each as well as all of them.
14. GOVERNING LAW; JURISDICTION. This Note has been delivered to and accepted by
the Bank and will be deemed to be made in the State of New York. This Note will
be interpreted in accordance with the laws of the State of New York excluding
its conflict of laws rules.
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE
OR FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY OR JUDICIAL DISTRICT WHERE
THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF
PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING
NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE
BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY
RIGHTS AGAINST BORROWER
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INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN
ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION.
Borrower acknowledges and agrees that the venue provided above is the most
convenient forum for both the Bank and Borrower. Borrower waives any objection
to venue and any objection based on a more convenient forum in any action
instituted under this Note.
15. BORROWER AND THE BANK HEREBY KNOWINGLY,VOLUNTARILY,AND INTENTIONALLY WAVE
ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR THE
TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
Preauthorized Transfers from Deposit Account. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
available funds in Borrower's deposit account #____________________ with the
Bank automatically for any amount which becomes due under this Note or as
directed by an Authorized Person, by telephone.
Acknowledgment. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the Governing Law, Jurisdiction and Waiver of
Jury Trial, and has been advised by counsel as necessary or appropriate.
Tax ID/SS# 00-0000000
Ablest Inc.
By: X /s/ W. XXXXX XXXXXX
---------------------
W. Xxxxx Xxxxxx, CEO
Signature of Witness: X /s/ XXXX X. XXXXXXXXXX
------------------------
Xxxx Xxxxxxxxxx, Treasurer, CAO
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