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EXHIBIT 10.26
PROMISSORY NOTE
$____________________ Tacoma, Washington
June 2, 1997
1. Promise To Pay. FOR VALUE RECEIVED, T&W FUNDING
COMPANY VI, L.L.C., a Delaware limited liability company (hereinafter "Maker")
promises to pay to
(the "Holder") or order at _________________, Kansas, ___________, or at such
other place as may be designated by the Holder hereof from time to time, the
principal sum of ___________00/100 DOLLARS ($___________), with interest from
___________, 1997, on the terms and conditions set forth herein.
Maker and Xxxxxx acknowledge and agree that the principal amount
of this Promissory Note, as finally adjusted, shall equal the deferred portion
of the purchase price set forth in the Asset Purchase Agreement dated as of June
2, 1997 entered into between Maker and Holder (the "Agreement"). The principal
amount of the Promissory Note set forth above is temporary only and is based on
the unaudited financial statements of Commercial Capital Corporation as of April
30, 1997. As soon as practicable, post-closing adjustments shall be made to the
purchase price under the Agreement in order to reflect the change in the total
shareholders' equity of Commercial Capital Corporation from April 30, 1997 to
the actual closing date of the Agreement. The principal amount of this
Promissory Note shall then be adjusted accordingly.
2. Interest Rate. The rate of interest on the unpaid
principal balance of this Promissory Note shall be eight percent (8%).
3. Payment. Maker shall make forty (40) equal quarterly
payments of ____________________________/100 ($________________) commencing
July 1, 1997 and continuing on the 1st day of each calendar quarter thereafter.
Xxxxx agrees to pay interest on the declining principal balance at the rate set
forth in Paragraph 2 hereof, which interest shall be deducted from each
quarterly installment and the balance applied in reduction of principal. On the
one-year anniversary date of the effective date of T&W Financial Corporation's
initial public offering, Maker shall make an additional payment to Holder equal
to fifteen percent (15%) of the original purchase price as set forth in the
Agreement. The parties shall then prepare a new amortization schedule in order
to reflect the additional principal
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payment.
4. Late Charge. If any quarterly payment is not made
within fifteen (15) days of the date it is due, Holder may assess a late charge
equal to FIVE HUNDRED AND 00/100 DOLLARS ($500) to defray the expenses incident
to such delay. Payment of the late charge shall be a condition to curing any
default. This provision for a late charge is not permission to make a late
payment.
5. Prepayment. This Promissory Note may be prepaid either
in whole or in part at any time without penalty.
6. Default Interest. This Promissory Note shall bear
interest at the rate of twelve percent (12%) per annum thirty (30) days after
any installment called for herein is not paid when due or after maturity.
7. Acceleration. In the event any payments required by
this Promissory Note are not paid when due, the whole sum of both principal and
interest shall become due and payable at once without further notice at the
option of Holder. In the event of the death of Xxxxx or Xxxx, a portion of the
principal balance and interest shall become due and payable at once without
further notice at the option of the holder as determined below:
a. Death of Xxxxx. Payable to or for the benefit
of the estate of Xxxxx: One-half of the amounts
payable to Commercial Capital Corporation and
all of the amounts payable to Xxxxx.
b. Death of Rice. Payable to or for the benefit of
the estate of Rice: One-half of the amounts
payable to Commercial Capital Corporation and
all of the amounts payable to Rice.
8. Attorneys' Fees. In the event this Promissory Note is
placed in the hands of an attorney for collection or if suit shall be brought to
collect any of the principal or interest of this Promissory Note, Maker shall
pay reasonable attorneys' fees in addition to all costs of collection and
expenses of suit.
9. Waiver of Presentment. Presentation for payment,
notice of dishonor, protest, and notice of protest are hereby waived.
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10. Nonwaiver. Failure to exercise any right or option
of Holder shall not constitute a waiver of the right to exercise such right or
option if Maker is in default hereunder.
11. Security of Promissory Note. This Promissory Note
shall be secured by an Unconditional Guaranty executed by T & W Financial
Corporation, Xxxxxxx X. Xxxxx and Xxxxxxxxx X. Xxxxx, husband and wife, Xxxxxx
X. Xxxxx and Xxxxxxxx X. Xxxxx, husband and wife, Xxxxxxx X. XxXxxxxx, Xx. and
Xxxxx X. XxXxxxxx, husband and wife and Xxxx X. Xxxx. Reference is made to such
Unconditional Guaranty for further rights of Holder.
12. Collection Expenses. Xxxxx agrees to reimburse Holder
on demand for all legal fees and other costs and expenses incurred in collecting
or enforcing this Note, together with interest at the default rate specified in
paragraph 6 above. Without limitation such shall include fees, costs and
expenses incurred with or without suit and in any appeal, any proceedings under
any present or future Federal Bankruptcy Act or state receivership, in any post
judgment collection proceedings. Payment of such fees, costs, expenses and
interest shall be a condition precedent to the curing of any default or the
satisfaction of this Promissory Note.
13. Governing Law, Venue and Jurisdiction. This Note shall
be construed, enforced and otherwise governed by the laws of the State of
Kansas. In the event any action shall be brought by any party to this Promissory
Note, such action shall be brought in the District Court of the State of Kansas
for Xxxxxxx County and all parties consent to the jurisdiction of such court as
to all such actions.
14. Notices. All notices, demands, requests, consents,
approvals, and other instruments required or permitted to be given pursuant to
the terms of this Promissory Note shall be in writing and shall be deemed to
have been properly given if sent by registered or certified mail, postage
prepaid, return receipt requested, to the addresses set forth below:
(a) To Maker: T&W Funding Company VI, L.L.C.
c/o Xxxxxxx X. Xxxxx
P.O. Box 0000
Xxxxxxx Xxx, XX 00000
(b) To Holder:
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Provided, however, that such address may be changed upon five (5) days' written
notice thereof similarly given to the other party. Such notice, demand, request,
consent, approval, and other instrument shall have been deemed to have been
served on the third (3rd) day following the date of mailing.
MAKER:
T & W FUNDING COMPANY VI, L.L.C.
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By: Xxxxxxx X. Xxxxx, Member
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