TERM NOTE
$1,181,250.00 Dallas, Texas August 31, 1994
FOR VALUE RECEIVED, Edward R. Anderson, an individual, referred to
herein as "Borrower", promises to pay to the order of CompuCom Systems,
Inc., a Delaware corporation and referred to herein as "Lender", the
principal sum of One Million, One Hundred Eighty-one Thousand, Two
Hundred, Fifty Dollars ($1,181,250.00), together with interest on the
unpaid principal balance as set forth below. All sums hereunder are
payable to Lender at its principal office in Dallas, Dallas County,
Texas.
1. Definitions. Unless the context hereof otherwise requires
or provides, the terms used herein defined in that certain Pledge
Agreement between Borrower and Lender of even date herewith, as the same
has been or may be amended or supplemented from time to time (the
"Agreement") have the same meanings. In addition, the following terms
shall have the following meanings:
a. "Prime Rate" means that variable rate of interest per
annum established by NationsBank of Texas, N.A. (the "Bank") from time
to time as its "prime rate" (whether by that or any other name). The
Bank sets such rate as a general reference rate of interest and takes
into account such factors as the Bank may deem appropriate. Many of the
Bank's commercial or other loans are priced in relation to such rate,
but it is not necessarily the lowest or best rate actually charged to
any customer.
b. "Maximum Rate" means the higher of the maximum interest
rate allowed by applicable United States or Texas law as amended from
time to time and in effect on the date for which a determination of
interest accrued hereunder is made. The determination of the maximum
rate permitted by applicable Texas law shall be made pursuant to the
indicated rate ceiling as defined in Tex.Rev.Civ.Stat.Ann. art. 5069-
1.04, but Lender reserves the right to implement from time to time any
other rate ceiling permitted by such law.
2. Interest Rate.
a. The unpaid principal balance from the date hereof until
maturity (whether by acceleration or otherwise) shall bear interest at a
rate per annum equal to 6%.
b. All past-due payments of principal and interest under
this Note shall bear interest at the Maximum Rate (or if there is no
such Maximum Rate, then at the Prime Rate plus 3%) from maturity until
paid.
3. Payment of Principal and Interest.
a. Accrued interest only is payable on the earlier of the
date of repayment of all principal on this Note or each January 1
commencing on January 1, 1996. Principal is payable in two annual
installments of $590,625.00 each on August 31, 1996 and on August 31,
1997 and interest computed on the unpaid balance is payable annually as
it accrues on the same dates as and in addition to each of such
installments of principal.
b. Unless Lender in its sole discretion elects to apply
payments differently, each payment shall be first credited to the
discharge of interest accrued on the unpaid principal balance to the
date of the payment, and the remainder shall be credited to the
reduction of said principal.
c. The principal and interest due hereunder shall be
evidenced by Lender's records which, absent manifest error, shall be
conclusive evidence of the computation of principal and interest
balances owed by Borrower to Lender.
d. Notwithstanding anything contained in this Note or in
the Agreement to the contrary, in the event Borrower's employment with
Lender is terminated, whether such termination is voluntary or
involuntary, this Note shall be due and payable on the 30th day
immediately following the effective date of such termination. In the
event this Note becomes payable pursuant to the terms of this Section
3(d), Borrower at his option may elect to have Lender offset any amounts
owed to Lender by Borrower under this Note against any severance or
other payments to be made by Lender to Borrower as a result of
Borrower's termination of employment with Lender.
4. Default. Failure to pay this Note or any installment
hereunder as it becomes due, or failure of Borrower or any other person
to perform (after the expiration of any applicable cure period) any of
the terms or provisions set forth in, or the occurrence of any default
under the terms of the Agreement, or the occurrence of any default under
any other agreement between Borrower and Lender shall, at the election
of the holder hereof, without notice, demand or presentment, which are
hereby waived, mature the principal of this Note and all interest then
accrued, and the same shall at once become due and payable and subject
to those remedies of the holder hereof.
5. Prepayment. Borrower may at any time prepay in whole or in
part the unpaid principal of this Note without premium or penalty, and
the interest shall immediately cease on any amounts so prepaid.
Prepayments of principal shall be applied in the inverse order of
maturity.
6. Waiver. Each surety, endorser, guarantor and any other
party now or hereafter liable for the payment of this Note in whole or
in part ("Surety") and Borrower hereby severally (a) waive grace,
demand, presentment for payment, notice of nonpayment, protest, notice
of protest, non-payment or dishonor, notice of intent to accelerate,
notice of acceleration and all other notices (except as provided in the
Agreement), filing of suit and diligence in collecting this Note or
enforcing any other security with respect to same, (b) agree to any
substitution, surrender, subordination, waiver, modification, change,
exchange or release of any security or the release of the liability of
any parties primarily or secondarily liable hereon, (c) agree that
Lender is not required first to institute suit or exhaust its remedies
hereon against Borrower, any Surety or others liable or to become liable
hereon or to enforce its rights against them or any security with
respect to same or to join any of them in any suit against any others of
them, and (d) consent to any extension or postponement of time of
payment of this Note and to any other indulgence with respect hereto
without notice thereof to any of them. No failure or delay on the part
of Lender in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
7. Attorneys' Fees. If this Note is not paid at maturity,
regardless of how such maturity may be brought about, or is collected or
attempted to be collected through the initiation or prosecution of any
suit or through any probate, bankruptcy or any other judicial
proceedings, or is placed in the hands of an attorney for collection,
Borrower shall pay, in addition to all other amounts owing hereunder,
all actual expenses of collection, all court costs and reasonable
attorney's fees incurred by the holder hereof.
8. Limitation on Agreements. All agreements between Borrower
and Lender, whether now existing or hereafter arising, are hereby
limited so that in no event shall the amount paid, or agreed to be paid
to Lender for the use, forbearance, or detention of money or for the
payment or performance of any covenant or obligation contained herein or
in any other document evidencing, securing or pertaining to this Note,
exceed the Maximum Rate. If any circumstance otherwise would cause the
amount paid to exceed the Maximum Rate, the amount paid or agreed to be
paid to Lender shall be reduced to the Maximum Rate, and if Lender ever
receives interest which otherwise would exceed the Maximum Rate, such
amount which would be excessive interest shall be applied to the
reduction of the principal of this Note and not to the payment of
interest, or if such excessive interest otherwise would exceed the
unpaid balance of principal of this Note such excess shall be applied
first to other indebtedness of Borrower to Lender, and the balance, if
any, shall be refunded to Borrower. In determining whether the interest
paid or agreed to be paid hereunder exceeds the highest amount permitted
by applicable law, all sums paid or agreed to be paid to Lender for the
use, forbearance or detention of the indebtedness of Borrower to Lender
shall, to the extent permitted by applicable law, (i) be amortized,
prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of interest
on account of such indebtedness is uniform throughout such term, (ii) be
characterized as a fee, expense or other charge other than interest, and
(iii) exclude any voluntary prepayments and the effects thereof. The
terms and provisions of this paragraph shall control and supersede every
other provision of all agreements between Lender and Borrower in
conflict herewith.
9. Governing Law and Venue. This Note and the rights and
obligations of the parties hereunder shall be governed by the laws of
the United States of America and by the laws of the State of Texas, and
is performable in Dallas, Dallas County, Texas. Chapter 15 of the Texas
Credit Code (Tex. Rev. Civ. Stat. Ann. art 5069.1501 et seq.) does not
apply to this Note.
10. Business Day. If any action is required or permitted to be
taken hereunder on a Sunday, legal holiday or other day on which banking
institutions in the State of Texas are authorized or required to close
(a "Non-Business Day"), such action shall be taken on the next
succeeding day which is not a Non-Business Day, and, to the extent
applicable, interest on the unpaid principal balance shall continue to
accrue at the applicable rate.
11. Agreement. This Note is the Note referred to in the
Agreement, and is entitled to the benefits thereof and the security as
provided for therein. Reference is made to the Agreement for a
statement of the rights and obligations of Borrower, a description of
the nature and extent of the security and the rights of the parties in
respect to such security, and a statement of the terms and conditions
under which the due date of this Note may be accelerated.
Address:
Edward R. Anderson