AMENDED, RESTATED AND CONSOLIDATED
ACQUISITION TERM NOTE
$3,243,900 June 20, 2000
FOR VALUE RECEIVED, and intending to be legally bound,
JEH/Eagle Supply, Inc. and Eagle Supply, Inc. (collectively, the
"Borrowers") hereby jointly and severally promise to pay to the
order of Fleet Capital Corporation, a Rhode Island corporation
("Lender"), in such coin or currency of the United States which
shall be legal tender in payment of all debts and dues, public and
private, at the time of payment, the maximum principal sum of Three
Million Two Hundred Forty Three Thousand Nine Hundred Dollars
($3,243,900), or such lesser sum which represents the aggregate
unpaid principal balance hereunder, together with interest from and
after the date hereof on the unpaid principal balance outstanding
at the rates per annum set forth in the Loan Agreement (as defined
below). Interest shall be computed in the manner provided in
Section 2 of the Loan Agreement.
This Amended, Restated and Consolidated Acquisition Term Note
(the "Note") is the Amended, Restated and Consolidated Acquisition
Term Note referred to in, and is issued pursuant to, that certain
Amended, Restated and Consolidated Loan and Security Agreement
between Borrowers and Lender dated the date hereof (hereinafter, as
may be amended, supplemented or replaced from time to time, the
"Loan Agreement"), and is entitled to all of the benefits and
security of the Loan Agreement. All of the terms, covenants and
conditions of the Loan Agreement and the Security Documents are
hereby made a part of this Note and are deemed incorporated herein
in full. All capitalized terms used herein, unless otherwise
specifically defined in this Note, shall have the meanings ascribed
to them in the Loan Agreement.
The principal amount and accrued interest of this Note shall
be due and payable on the dates and in the manner hereinafter set
forth:
(i) Interest on the outstanding principal balance shall be
due and payable monthly, in arrears, on the first day of each
month, commencing on July 1, 2000, and continuing until such time
as the full principal balance, together with all other amounts
owing hereunder, shall have been paid in full.
(ii) The principal amount hereunder shall be due and payable
in consecutive monthly installments of principal as set forth on
Schedule A attached hereto and made a part hereof, on the first day
of each calendar month commencing on July 1, 2000, with a final
installment in an amount equal to the entire remaining principal
amount then outstanding under this Note, together with any and all
other amounts due hereunder due and payable as of the earlier to
occur of November 1, 2005, the end of the Original Term or Renewal
Term (as applicable), and termination of the Loan Agreement.
EX-10.40
Notwithstanding the foregoing, the entire unpaid principal balance
and accrued interest on this Note shall be due and payable
immediately upon acceleration of the Obligations following an Event
of Default under the Loan Agreement or termination of the Loan
Agreement pursuant to Section 4 thereof.
This Note shall be subject to mandatory prepayment (and
prepayment premium, if applicable) in accordance with the
provisions of Sections 3.2 and 3.3 of the Loan Agreement.
Borrowers may also terminate the Loan Agreement and, in connection
with such termination, prepay this Note in the manner and subject
to the conditions provided in Section 4 of the Loan Agreement.
Upon the occurrence of an Event of Default, Lender shall have
all of the rights and remedies set forth in Section 10 of the Loan
Agreement.
Time is of the essence under this Note. To the fullest extent
permitted by applicable law, each Borrower, for itself and its
legal representatives, successors and assigns, expressly waives
presentment, demand, protest, notice of dishonor, notice of non-
payment, notice of maturity, notice of protest, presentment for the
purpose of accelerating maturity, diligence in collection, and the
benefit of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be
prohibited 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 remaining
provisions of this Note. No delay or failure on the part of Lender
in the exercise of any right or remedy hereunder shall operate as
a waiver thereof, nor as an acquiescence in any default, nor shall
any single or partial exercise by Lender of any right or remedy
preclude any other right or remedy. Lender, at its option, may
enforce its rights against any Collateral securing this Note
without enforcing its rights against Borrowers or any other
property or indebtedness due or to become due to Borrowers.
Borrowers agree that, without releasing or impairing each
Borrower's liability hereunder, Xxxxxx may at any time release,
surrender, substitute or exchange any Collateral securing this Note
and may at any time release any party primarily or secondarily
liable for the indebtedness evidenced by this Note.
IN ANY LITIGATION ARISING OUT OF OR RELATING TO ANY OF THE
MATTERS CONTAINED IN THIS NOTE OR ANY OF THE DOCUMENTS DELIVERED IN
CONNECTION HEREWITH IN WHICH THE LENDER AND Borrowers ARE ADVERSE
PARTIES, THE LENDER AND Borrowers WAIVE TRIAL BY JURY.
This Note amends, restates and consolidates, but does not
extinguish the indebtedness evidenced by (i) that certain Term Note
given by JEH Acquisition Corp. n/k/a JEH/Eagle Supply, Inc. to
Lender dated July 8, 1997 in the principal amount of $3,000,000,
and (ii) that certain Term Note given by MSI/Eagle Supply, Inc. to
Lender dated October 22, 1998 in the principal amount of
$3,075,000, all as may have been amended, supplemented or replaced
from time to time.
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EX-10.40
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, each Borrower has caused this Note to be
duly executed and delivered on the date first above written.
JEH/Eagle Supply, Inc.
By:______________________________
Name:____________________________
Title:___________________________
Eagle Supply, Inc.
By:______________________________
Name:____________________________
Title:___________________________
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EX-10.40
