Exhibit 10.26
TERM NOTE
$3,075,000.00 October 22, 1998
FOR VALUE RECEIVED, and intending to be legally bound, MSI/EAGLE SUPPLY,
INC., a Delaware corporation ("Borrower") hereby promises 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 Seventy Five Thousand Dollars ($3,075,000), 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 Term Note (the "Note") is the Term Note referred to in, and is issued
pursuant to, that certain Loan and Security Agreement between Borrower and
Lender dated the date hereof (hereinafter, as amended 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:
(a) Interest on the outstanding principal balance shall be due and payable
monthly, in arrears, on the first day of each month, commencing on December
1, 1998, and continuing until such time as the full principal balance,
together with all other amounts owing hereunder, shall have been paid in
full.
(b) The principal amount hereunder shall be due and payable in
consecutive monthly installments of principal of $37,000 each, on the first
day of each calendar month commencing on December 1, 1998 ("Initial Payment
Date") and 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 on the earlier to occur of
the first day of the 84th month following the Initial Payment Date, the end
of the Original Term or Renewal Term (as applicable), or the termination of
this Agreement.
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. Borrower 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, 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 Borrower or any other property or indebtedness due or to become
due to Borrower. Xxxxxxxx agrees that, without releasing or impairing
Xxxxxxxx'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 BORROWER ARE ADVERSE PARTIES, THE LENDER AND BORROWER
WAIVE TRIAL BY JURY.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York.
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IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be duly executed and
delivered on the date first above written.
ATTEST: MSI/EAGLE SUPPLY, INC.
/s/ Illegible By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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