EXHIBIT 10
(MANUFACTURERS AND TRADERS TRUST COMPANY LOGO)
PROMISSORY NOTE
MARYLAND
August 13, 2003 $7,500,000.00
BORROWER: ABLEST INC., a corporation organized under the laws of Delaware
Address of residence/chief executive office: 1901 Ulmerton Road, Suite 300,
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Clearwater, Florida 33762
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BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with banking offices at One M & T Plaza, Buffalo, New York 14240.
Attention: Office of General Counsel
1. DEFINITIONS. As used in this Note, each capitalized term shall have the
meaning specified in the Note or as it appears in initial capitalization.
Additionally, the following terms shall have the indicated meanings:
a. "APPLICABLE RATE" shall mean either the Interest Rate or the
Base Rate, as the case may be.
b. "ADJUSTMENT DATE" shall mean two (2) Business Days before the
last day of the Interest Period selected below (see LIBOR Rate
definition).
c. "BASE RATE" shall mean the highest prime rate published in The
Wall Street Journal in its table entitled "Money Rates" or
such similar publication, quoting service or commonly
available source used by the Bank for determining prime rate
("Prime").
d. "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.
e. "CONTINUATION DATE" shall mean the last day of each Interest
Period.
f. "CREDIT AGREEMENT" shall mean the Credit Agreement of even
date herewith by and between the Bank and the Borrower, as the
same may be amended, modified and extended from time to time.
g. "INTEREST PERIOD" shall mean, as to the LIBOR Rate, the period
commencing on the date of this Note or Continuation Date (as
the case may be) and ending on, with respect thereto, 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 (as
selected by Borrower below); 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.
Notwithstanding anything to the contrary, the Borrower may not
select an Interest Period which would end after the Maturity
Date.
h. "INTEREST RATE" shall mean, the Base Rate or the applicable
LIBOR Rate.
i. "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), fixed by the British Bankers
Association for United States dollar deposits in the London
Interbank Eurodollar Market at approximately 11:00 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 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.
j. "LIBOR BORROWING" shall mean each amount of the unpaid
principal balance of Advance which is designated by the
Borrower in accordance with the terms of this Note to accrue
interest at the LIBOR Rate for a separately designated
Interest Period.
k. "LIBOR RATE" shall mean two (2) percentage points above LIBOR
with an Interest Period duration of one month, two months or
three months, as the same has been selected by the Borrower.
l. "MATURITY DATE" is the Payment Due Day in August, 2005,
provided, however, that the same may be extended in a writing
between the Bank and the Borrower.
m. "PAYMENT DUE DAY" shall mean the same day of the calendar
month as the date of this Note (or if there is no numerically
corresponding day in a month, on the last day of such month);
provided, however, if that day is not a Business Day, the
Payment Due Day 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 Payment
Due Day shall end on the immediately preceding Business Day.
n. "PRIME BORROWING" shall mean each amount of the unpaid
principal balance of Advance which is designated by the
Borrower in accordance with the terms of this Note to accrue
interest at the Base Rate.
o. "PRINCIPAL AMOUNT" shall mean Seven Million Five Hundred
Thousand Dollars ($7,500,000.00).
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 the dates set forth
below, the Principal Amount, plus interest as agreed 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").
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b. BORROWING PROCEDURE; REPAYMENT; INTEREST.
i. Procedure. The Borrower shall request drawings on this Note
("Advances") by delivering to the Bank an irrevocable notice (which notice must
be received by the Bank prior to 12:00 p.m. Baltimore, Maryland time: (A) two
(2) Business Days prior to the requested borrowing date, if all or any part of
the requested Advances are to be initially Libor Borrowings; or (B) on the
requested borrowing date if all of the requested Advances are to be initially
Prime Borrowings) specifying: (I) the amount to be borrowed, which amount shall
be no less than One Hundred Thousand Dollars ($100,000.00) and in increments of
One Hundred Thousand Dollars ($100,000.00), (II) the requested borrowing date,
(III) whether the borrowing is to be a Libor Borrowing, a Prime Borrowing, or a
combination thereof, (IV) if the borrowing is to be entirely or partly a Libor
Borrowing, and (V) that there has been no material adverse change in the
financial condition of the Borrower since the last request, the information
required to be specified in the election described in subsection (iii)(A)(III)
below. The above described notice may be delivered to the Bank via facsimile
with telephone confirmation. Such borrowing will be made available to the
Borrower on or prior to 1:00 p.m. Baltimore, Maryland time by the Bank crediting
the Borrower's account number 131771 at the Bank.
ii. Repayment.The Borrower shall pay the entire outstanding
Principal Amount on the Maturity Date. In addition, until the outstanding
Principal Amount is paid in full, Borrower shall pay all accrued and unpaid
interest, in amounts which may vary, as follows: (A) if the LIBOR Rate is the
Applicable Rate, on the last day of each Interest Period, (B) if the Base Rate
is the Applicable Rate, on the Payment Due Date for each month, and (C) at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand. Notwithstanding the foregoing, however, the Bank may agree to extend the
term of this Note by setting forth such extension in a writing by and between
the Bank and the Borrower.
iii. Interest Terms Applicable To Advances. Interest shall
accrue upon the unpaid principal balances of each Advance until said Advance has
been repaid in full at the rate or rates described below in this subsection iii.
A. LIBOR Rate Option. Subject to the terms below,
interest may accrue at the election of the Borrower
for Interest Periods selected by the Borrower, at the
Libor Rate on Advances. Any Libor Borrowing or
election for a Libor Borrowing pursuant to these
provisions shall be subject to the following terms
and conditions:
I. Payments. For each of the Libor Borrowings,
accrued interest shall be paid to the Bank
in arrears on the last day of each
applicable Interest Period.
II. Notice Of Election. By 10:00 a.m. Baltimore,
Maryland time on that Business Day which
occurs two (2) Business Days prior to the
Business Day on which the Borrower desires
that an Interest Period commence (including
the conversion of a Prime Borrowing to a
LIBOR Borrowing), the Borrower shall deliver
a written election to the Bank specifying
the commencement date of and length of the
relevant Interest Period, as well as the
amount of such LIBOR Borrowing.
III. Effect Of Election. Interest shall accrue
from and including the first day of each
Interest Period selected by the Borrower to
(but not including) the last day of such
Interest Period at the Libor Rate determined
as applicable to such Interest Period upon
the amount of the Advances identified by the
Borrower in the Borrower's written election.
(1) Availability. If the Bank
determines at any time that a
regulatory change or a change in
market conditions has made it
impractical for the Bank to offer
pricing based on the Libor Rate,
the Bank may give notice of such
determination to the Borrower, and
all Advances which are then
accruing interest at a Libor Rate
shall, on the last day(s) of the
then applicable current Interest
Period(s) automatically and without
further notice, begin to accrue
interest at the Base Rate. Until
such time as the Bank determines
that a regulatory change or a
change in market conditions has
again made it practical for the
Bank to offer pricing at the Libor
Rate, the Bank will not be
obligated to further offer pricing
based upon the Libor Rate, and any
notice from the Borrower requesting
such a rate option will be
ineffective.
(2) Breakage Costs. Subject to and
including the provisions set forth
below, the Borrower agrees to
compensate the Bank from time to
time, upon demand from the Bank,
for all losses, expenses, lost
earnings, costs and liabilities
(including, without limitation, all
interest paid to lenders of funds
borrowed by the Bank to carry Libor
Borrowings) which the Bank sustains
if any failure by the Borrower to
borrow a Libor Borrowing or convert
a Prime Borrowing to a Libor
Borrowing on the date for such
borrowing or conversion specified
in the relevant notice of election
given by the Borrower to the Bank
in accordance with the terms of
this Note. (3)
(3) Termination Of Right To Elect LIBOR
Borrowings. Notwithstanding
anything to the contrary set forth
in this Note, and without limiting
any other rights and remedies of
the Bank, the Bank during any
continuing Event of Default
(defined below) may suspend the
right of the Borrower to convert
any Prime Borrowing into a Libor
Borrowing or to permit any Libor
Borrowing to be renewed as a Libor
Borrowing, in which case all
Advances shall be converted (on the
last days of the respective
Interest Periods therefor) or
continued, as the case may be, as
Prime Borrowings.
B. Prime Rate. Except as otherwise provided by the terms
of this Note, each Advance shall bear interest the
fluctuating rate equal to the Base Rate. Absent a
timely election by the Borrower in accordance with
Section 2(b)(iii)(a) above, the unpaid balances of
any Advances, including any balances of any Libor
Borrowings for which the applicable Interest Period
has expired, automatically shall be deemed to bear
interest at the Base Rate. Changes in the interest
rate shall be made when and as changes in Prime
occur. For each Prime Borrowing, all accrued and
unpaid interest shall be payable monthly in arrears
on each consecutive Payment Due Date.
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c. INTEREST. Interest shall be calculated on the basis of a 360-day
year for the actual number of days of each year (365 or 366) at the Applicable
Rate that is chosen by the Borrower at the time of such Advance.
d. MAXIMUM LEGAL RATE. It is the intent of the Bank and 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.
e. DEFAULT RATE. If an Event of Default (defined below) occurs, the
interest rate on the unpaid Principal Amount shall immediately be automatically
increased to two (2) percentage points per year above the higher of the LIBOR
Rate or the Base 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.
f. PAYMENT TYPE; LATE CHARGE. Payments shall be made in immediately
available United States funds at any banking office of the Bank. Interest will
continue to accrue until payment is actually received. If payment is not
received within five days of its due date, Borrower shall pay a late charge
equal to the greatest of (a) $50.00, (b) 5% of the delinquent amount or (c) the
Bank's then current late charge as announced from time to time. Payments may be
applied in any order in the sole discretion of the Bank but, prior to default,
shall be applied first to past due interest, Expenses, late charges and
principal, then to current interest, Expenses, late charges and principal, and
last to remaining principal.
g. PREPAYMENT.
i. Subject to the following, during the term of this
Note, Borrower shall have the option of paying the
Principal Amount to the Bank in advance of the
Maturity Date, in whole or in part, at any time and
from time to time upon written notice received by the
Bank at least three (3) business days prior to making
such payment. If (i) Borrower prepays, in whole or in
part, any Principal Amount when the Applicable Rate
is the LIBOR Rate before the end of the Interest
Period, (ii) there occurs an Event of Default or the
Applicable Rate is converted from the LIBOR Rate to
the Base Rate before the end of an Interest Period
pursuant to Section 3, 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 (based on the
entire Principal Amount pre-paid), failure to draw,
early termination of the Interest Period, revocation,
bankruptcy or otherwise. The determination by the
Bank of the foregoing amount shall, in the absence of
manifest error, be conclusive and binding upon
Borrower.
ii. Upon making any prepayment of the Principal Amount in
whole, Borrower shall pay to the Bank all interest
and Expenses owing pursuant to the Note and remaining
unpaid. Each partial prepayment of the Principal
Amount shall be applied in inverse order of maturity
to the principal included in the installments
provided herein.
iii. In the event the Maturity Date is accelerated
following an Event of Default by Borrower, any tender
of payment of the amount necessary to satisfy the
entire indebtedness made after such Event of Default
shall be expressly deemed a voluntary prepayment. In
such a case, to the extent permitted by law, the Bank
shall be entitled to the amount necessary to satisfy
the entire indebtedness, plus the appropriate
prepayment premium calculated in accordance with this
Section 2(g).
3. CONTINUATIONS AND CONVERSIONS. 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 upon maturity, acceleration 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, the Bank, in its
sole discretion, may (i) permit the LIBOR Rate to continue until the last day of
the applicable Interest Period at which time such the Applicable Rate shall
automatically be converted to the Base Rate or (ii) convert the LIBOR Rate to
the Base Rate before the end of the applicable Interest Period. Notwithstanding
the foregoing, upon the occurrence of an Event of Default in Section 8(vi) of
the Credit Agreement, the Applicable Rate shall be automatically converted to
the Base Rate without further action by the Bank and Borrower shall have no
right to have the Applicable Rate converted from the Base Rate to the LIBOR
Rate. Nothing herein shall be construed to be a waiver by the Bank to have the
Principal Amount accrue interest at the Default Rate or the right of the Bank to
the amounts set forth in Section 2(g) of this Note.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents, warrants and
acknowledges to, and agrees and covenants with, the Bank that now and until this
Note is paid in full:
a. BUSINESS PURPOSE. This Note evidences a commercial loan and an
extension of credit for a commercial purpose within the meaning of Md. Code,
Commercial Law Art., and the loan proceeds shall be used only for a business
purpose and not for any personal, family or household purpose.
b. GOOD STANDING AUTHORITY. Borrower is an entity or sole proprietor
(i) duly organized and existing and in good standing under the laws of the
jurisdiction in which it was formed, (ii) duly qualified, in good standing and
authorized to do business in every jurisdiction in which failure to be so
qualified might have a material adverse effect on its business or assets and
(iii) has the power and authority to own each of its assets and to use them as
contemplated now or in the future.
c. LEGALITY. The execution, issuance, delivery to the Bank and
performance by Borrower of this Note (i) are in furtherance of Borrower's
purposes and within its power and authority; (ii) do not (A) violate any
statute, regulation or other law or any judgment, order or award of any court,
agency or other governmental authority or of any arbitrator or (B) violate
Borrower's certificate of incorporation or other governing instrument,
constitute a default under any agreement binding on Borrower, or result in a
lien or encumbrance on any assets of Borrower; and (iii) have been duly
authorized by all necessary corporate or partnership action.
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d. NOTICE OF CHANGE OF ADDRESS AND OF DEFAULT. Borrower will
immediately notify the Bank in writing (i) of any change in its address or of
the location of any collateral securing this Note, (ii) of the occurrence of any
Event of Default defined below, (iii) of any material change in Borrower's
ownership or management and (iv) of any material adverse change in Borrower's
ability to repay this Note.
e. NO TRANSFER OF ASSETS. Until this Note is paid in full, Borrower
shall not without the prior written consent of the Bank sell or otherwise
dispose of substantially all of its assets or agree to sell or otherwise dispose
of substantially all of its assets.
5. EVENTS OF DEFAULT; ACCELERATION. The following constitute an event of default
("Event of Default"): (i) failure by Borrower to comply with any term, covenant
or condition contained in this Note; or (ii) any Event of Default under the
Credit Agreement.
6. RIGHT OF 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 Affiliate or otherwise owing by the Bank or any Affiliate 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.
7. 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 loans
based on LIBOR, 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
the Interest Period specified above, the Bank will give notice of such
determination to Borrower. Thereafter, the Bank may not maintain the loan
hereunder at the LIBOR Rate until the Bank revokes such notice in writing and,
until such revocation, the Bank may convert the Applicable Rate from the LIBOR
Rate to the Base Rate.
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
loans at based on LIBOR then, on notice thereof by the Bank to Borrower, the
Bank may suspend the maintaining of the loan hereunder at the LIBOR Rate 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 the loan hereunder based on LIBOR, the Bank may convert the
Applicable Rate from the LIBOR Rate to the Base Rate.
8. 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. Borrower hereby waives
protest, presentment and notice of any kind in connection with this Note.
Singular number includes plural and neuter gender includes masculine and
feminine as appropriate.
9. 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.
10. 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 Maryland. Except as
otherwise provided under federal law, this Note will be interpreted in
accordance with the laws of the State of Maryland excluding its conflict of laws
rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT IN THE STATE OF MARYLAND 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 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.
11. WAIVER OF JURY TRIAL. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW
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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.
12. POWER TO CONFESS JUDGMENT. BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY
COURT OF RECORD, AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO
APPEAR FOR BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A
SERIES OF JUDGMENTS, AGAINST BORROWER IN FAVOR OF THE BANK OR ANY HOLDER HEREOF
FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL
OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S
COMMISSION OF THE GREATER OF TEN PERCENT (10%) OF SUCH PRINCIPAL AND INTEREST OR
$1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS NOTE OR A
COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY
FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF
APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF
ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL
ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS
JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER,
WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID,
VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS
THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS.
THE PROVISIONS OF THIS SECTION DO NOT APPLY TO ANY LOAN EVIDENCED BY THIS NOTE
THAT IS WITHIN THE SCOPE OF THE SECTION ENTITLED "SPECIAL PROVISIONS - LOANS OF
$75,000 OR LESS" AND MADE TO AN INDIVIDUAL OR SOLE PROPRIETOR BORROWER.
PREAUTHORIZED TRANSFERS FROM DEPOSIT ACCOUNT. If a deposit account number is
provided in the following blank Borrower hereby authorizes the Bank to debit
Borrower's deposit account #131771 with the Bank automatically for any amount
which becomes due under this Note.
[SIGNATURE ON FOLLOWING PAGE]
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ACKNOWLEDGMENT. Borrower acknowledges that it has read and understands all the
provisions of this Note, including the CONFESSION OF JUDGMENT, GOVERNING LAW,
JURISDICTION and WAIVER OF JURY TRIAL, and has been advised by counsel as
necessary or appropriate.
WITNESS the due execution hereof as a SEALED INSTRUMENT the day and year first
above written.
TAX ID/SS # 65-0978462 ABLEST INC.
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/s/ Todd Graham (L.S.) /s/ W. David Foster (L.S.)
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Signature of Witness W. David Foster, Chief Executive Officer
Todd Graham
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Typed Name of Witness
ACKNOWLEDGMENT
STATE OF GEORGIA )
: SS.
COUNTY OF GWINNETT )
On the 13 day of August, in the year 2003, before me, the undersigned,
a Notary Public in and for said State, personally appeared W. David Foster,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Barbara Obermeyer
------------------------------------
Notary Public
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FOR BANK USE ONLY
Authorization Confirmed:
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Product Code: 22660
Disbursement of Funds:
Credit A/C # Off Ck # Payoff Obligation #
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$ $ $
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