Exhibit 99.f.17
TERM NOTE
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$60,000,000 June 24, 1998
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned, MCG FINANCE CORPORATION, a
Delaware corporation ("Borrower"), hereby unconditionally promises to pay to the
order of XXXXXX FINANCIAL, INC., a Delaware corporation ("Lender"), at Agent's
office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other
place as Agent may from time to time designate in writing, in lawful money of
the United States of America and in immediately available funds, the principal
sum of SIXTY MILLION AND NO/100 DOLLARS ($60,000,000.00), or, if less, Xxxxxx's
pro rata share of the aggregate unpaid principal amount of all advances made
pursuant to subsection 1.1(A) of the "Credit Agreement" (as hereinafter
defined), at such times as are specified in, and in accordance with the
provisions of, the Credit Agreement. This Term Note is referred to in and was
executed and delivered pursuant to that certain Credit Agreement of even date
herewith (the "Credit Agreement") among Borrower, Xxxxxx Financial, Inc., as
Agent for the benefit of all lenders, and the other lenders who are parties
thereto, to which reference is hereby made for a statement of the terms and
conditions under which the Term Loan evidenced hereby was made and is to be
repaid. All terms which are capitalized and used herein (which are not otherwise
specifically defined herein) and which are defined in the Credit Agreement shall
be used in this Term Note as defined in the Credit Agreement. This Term Note is
secured by the Collateral.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof, as provided in the Credit Agreement, from the date
hereof until payment in full hereof at the applicable rate specified in
subsection 1.2(A) of the Credit Agreement; provided, however, that if Agent or
Requisite Lenders, so elect, following the occurrence and during the continuance
of an Event of Default, Borrower promises to pay to Lender interest on the
unpaid principal amount hereof at the applicable rate specified in subsection
1.2(D) of the Credit Agreement. Interest shall be payable in arrears on the
dates specified in subsection 1.2(C) of the Credit Agreement and at maturity,
whether by acceleration or otherwise. Interest shall be computed on the closing
daily principal balance in Borrower's Loan Account with respect to Term Loan on
the basis of a 360 day year for the actual number of days elapsed in the period
during which it accrues.
If a payment hereunder becomes due and payable on a day that is not a
Business Day, the payment may be made on the next succeeding Business Day, and
such extension of time shall be included in the computation of the amount of
interest due on such succeeding Business Day. Checks, drafts or similar items of
payment received by Lender shall not constitute payment, but credit therefor
shall, solely for the purpose of computing interest earned by Xxxxxx, be given
in accordance with the Credit Agreement. In no contingency or event whatsoever
shall interest charged hereunder, however such interest may
be characterized or computed, exceed the highest rate permissible under any law
which a court of competent jurisdiction determines is applicable hereto. In the
event of any such determination, the provisions of subsection 1.2(E) of the
Credit Agreement shall govern and control.
After the occurrence and during the continuance of an Event of Default,
Agent shall have the exclusive right (to the extent permitted by applicable law
and the Credit Agreement) to apply and to reapply any and all payments hereunder
against the Obligations of Borrower in such manner as Agent deems advisable
notwithstanding any previous entry by Agent upon Xxxxxxxx's Loan Account or any
other books and records.
If any suit or action is instituted or attorneys are employed to
collect this Term Note or any part thereof, Borrower (unless it is determined
not to be liable in such suit or action) hereby promises and agrees to pay all
costs of collection, including reasonable attorneys' fees and court costs.
Borrower and each endorser, guarantor and surety of this Term Note
hereby waives presentment for payment, protest and demand, and notice of demand,
protest, dishonor and nonpayment of this Term Note. Except as otherwise required
pursuant to the Credit Agreement or applicable law, Borrower also waives all
rights to notice and hearing of any kind upon the occurrence of an Event of
Default and prior to the exercise by Agent of its rights to repossess the
Collateral without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
THIS TERM NOTE HAS BEEN DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN
MADE AT CHICAGO, ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS WITHOUT REGARD TO CONFLICTS
OF LAW PROVISIONS. Whenever possible each provision of this Term Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Term Note shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Term Note. Whenever in this Term Note
reference is made to Agent, Lender or Borrower, such reference shall be deemed
to include, as applicable, a reference to their respective successors and
assigns (as and to the extent permitted under the Credit Agreement). The
provisions of this Term Note shall be binding upon and shall inure to the
benefit of such successors and assigns. Xxxxxxxx's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for Borrower.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
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IN WITNESS WHEREOF, Xxxxxxxx has executed this Term Note as of the day
and year first written above.
MCG FINANCE CORPORATION, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Pres/CEO
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