EXHIBIT 4.26
TERM LOAN PROMISSORY NOTE
GENCOR INDUSTRIES, INC.
GENERAL COMBUSTION CORPORATION
GENCOR SYSTEMS, INC.
THERMOTECH SYSTEMS CORPORATION
GENCO-SELLERS, INC.
BITUMA-STOR, INC.
BITUMA CORPORATION
DAVIS LINE, INC.
EQUIPMENT SERVICES GROUP, INC.
MIDWEST TANK & CONSTRUCTION HOLDING CORP.
THERMO TECH SYSTEMS CORPORATION OF FLORIDA
GENCOR FSC, LTD.
$3,714,000.00 as of August 3, 1995
1. PROMISE TO PAY. The undersigned corporations (collectively,
--------------
"Borrowers"), for value received, jointly and severally promise to pay to the
order of SOUTHTRUST BANK OF ALABAMA, NATIONAL ASSOCIATION ("Bank"), P.O. Box
2554, Birmingham, Alabama 35290, or at such other place as the holder of this
Note designates in writing to Borrower, the principal amount of THREE MILLION
SEVEN HUNDRED FOURTEEN THOUSAND AND 00/100 DOLLARS (U.S. $3,714,000.00).
Borrowers shall pay interest and principal on this Note from the date hereof
until paid in full at the times and interest rates set forth for the "Term Loan"
in the Loan and Security Agreement dated as of August 3, 1995, among Bank and
Borrowers (the "Credit Agreement").
1
2. APPLICATION AND FORM OF PAYMENTS. Payments will be applied first to
--------------------------------
accrued interest and then to principal, and all interest on this Note will be
computed on the basis of the actual number of days elapsed over a 360-day year.
Payments of interest and principal must be made in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts. Payments received after 2:00 p.m. will be
treated as being received on the next banking day.
3. FAULT AND REMEDIES. This Note is executed pursuant to the Credit
--------------------
Agreement and is secured by liens and security interests granted to Bank by
Borrowers as described in the Credit Agreement and in Real Estate Mortgages to
be executed by Borrowers in favor of Bank. The provisions of the Credit
Agreement are incorporated by reference in this Note, and reference is made to
the Credit Agreement, the Real Estate Mortgages, and other Loan Documents (as
defined in the Credit Agreement), for a description of the relative rights and
obligations of Borrowers and Banks concerning this Note, including prepayment,
events of default, and acceleration of maturity in the event of default. The
terms used in the Credit Agreement are used in this Note with the same meaning
set forth in the Credit Agreement.
2
4. DEFAULT; REMEDIES; PAYMENT OF COSTS. The provisions of the Credit
-----------------------------------
Agreement are incorporated by reference in this Note, and reference is made to
the Credit Agreement for a description of the relative rights and obligations of
Borrowers and Bank concerning this Note, including events of default,
acceleration of maturity in the event of default, and payment by Borrowers of
all costs and expenses incurred by the holder of this Note in enforcing or
collecting this Note. The terms used in the Credit Agreement are used in this
Note with the same meaning set forth in the Credit Agreement.
5. WAIVER AND CONSENTS. Borrowers and every other person liable at any
-------------------
time for payment of this Note waives presentment, protest, notice of protest,
and notice of dishonor. Borrowers expressly consent to all extensions and
renewals of this Note (as a whole or in part) and all delays in time of payment
or other performance under this Note that the holder of this Note grants at any
time and from time to time, without limitation and without any notice to or
further consent of Borrowers. Each Borrower agrees that its obligations under
this Note are independent of the obligations of any other Borrower or other
person or entity that now or later is obligated to pay this Note. Borrowers
also agree that Bank may release any security for or other obligor of this Note
or waive, extend, alter, amend, or modify the Note or otherwise take any action
that varies the risk of any Borrower without releasing or discharging any
Borrower from its obligation to repay this Note.
6. VENUE AND WAIVER OF JURY TRIAL. Borrowers further agree that venue for
------------------------------
each action, suit, or other legal proceeding arising under or relating to this
Note or any agreement securing or related to this Note shall be as set forth in
the Credit Agreement. BORROWERS AND BANK KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR OTHER LITIGATION ARISING UNDER OR RELATING TO THIS NOTE OR ANY
AGREEMENT SECURING OR RELATING TO THIS NOTE. BORROWERS AND BANK HAVE FULLY
DISCUSSED THIS PROVISION AND AGREE THAT THIS WAIVER IS SUBJECT TO NO EXCEPTIONS
AND WAS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOANS EVIDENCED BY THIS NOTE
TO BORROWERS.
7. MISCELLANEOUS. The headings preceding the text of the sections of this
-------------
Note have been inserted solely for convenience of reference and do not limit or
affect the meaning, interpretation, or effect of this Note or the sections. The
validity, construction, interpretation, and enforceability of this Note are
governed by the laws of the State of Florida, excluding its laws relating to the
resolution of conflicts of laws of different jurisdictions. All notices,
demands, and other communications required or permitted in connection with
3
this Note must be given in the manner, and will become effective at the time,
specified in the Credit Agreement.
EXECUTED: August 3, 1995, in Atlanta, Georgia.
GENCOR INDUSTRIES, INC.,
a Delaware corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
GENERAL COMBUSTION CORPORATION,
a Florida corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
Chairman
GENCOR SYSTEMS, INC.,
a Florida corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
THERMOTECH SYSTEMS CORPORATION,
a Florida corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
4
GENCO-SELLERS, INC.,
a Pennsylvania corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
BITUMA-STOR, INC.,
an Iowa corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
5
BITUMA CORPORATION,
a Washington corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
DAVIS LINE, INC.,
an Indiana corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
EQUIPMENT SERVICES GROUP, INC.,
a Florida corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
MIDWEST TANK & CONSTRUCTION
HOLDING CORP., a Florida
corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
THERMO TECH SYSTEMS CORPORATION
OF FLORIDA, a Florida
corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
GENCOR FSC, LTD.,
a Jamaica corporation
By: /s/ E. J. Elliott
----------------------------
E. J. Elliott
President
6
STATE OF GEORGIA )
COUNTY OF _________ )
The foregoing instrument was executed and acknowledged before me this _____
day of August, 1995, by E. J. Elliott as Chairman of General Combustion
Corporation, a Florida corporation, and as President of Gencor Industries, Inc.,
a Delaware corporation, Gencor Systems, Inc., a Florida corporation, Thermotech
Systems Corporation, a Florida corporation, Genco-Sellers, Inc., a Pennsylvania
corporation, Bituma-Stor, Inc., an Iowa corporation, Bituma Corporation, a
Washington corporation, Davis Line, Inc., an Indiana corporation, Equipment
Services Group, Inc., a Florida corporation, Midwest Tank & Construction Holding
Corp., an Indiana corporation, Thermo Tech Systems Corp., a Florida
corporation, and Gencor FSC, Ltd., a Jamaica corporation. He has produced
_______________ as identification.
--------------------------------
Print Name:
---------------------
Notary Public, State at Large
My commission expires:
AFFIDAVIT OF ACCEPTANCE
-----------------------
The undersigned certifies that he today accepted delivery of this promissory
note in Atlanta, Georgia.
SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
7
REVOLVING CREDIT PROMISSORY NOTE
GENCOR INDUSTRIES, INC.
GENERAL COMBUSTION CORPORATION
GENCOR SYSTEMS, INC.
THERMOTECH SYSTEMS CORPORATION
GENCO-SELLERS, INC.
BITUMA-STOR, INC.
BITUMA CORPORATION
DAVIS LINE, INC.
EQUIPMENT SERVICES GROUP, INC.
MIDWEST TANK & CONSTRUCTION HOLDING CORP.
THERMO TECH SYSTEMS CORPORATION OF FLORIDA
GENCOR FSC, LTD.
$16,000,000.00 as of August 3, 1995
1. PROMISE TO PAY. The undersigned corporations (collectively,
--------------
"Borrowers"), for value received, jointly and severally promise to pay to the
order of SOUTHTRUST BANK OF ALABAMA, NATIONAL ASSOCIATION ("Bank"), P.O. Box
2554, Birmingham, Alabama 35290, or at such other place as the holder of this
Note designates in writing to Borrower, the principal amount of SIXTEEN MILLION
AND NO/100 DOLLARS (U.S. $16,000,000.00), or, if less, the aggregate unpaid
Revolving Loan (as defined in the Credit Agreement described below) made to
Borrowers pursuant to the Loan and Security Agreement dated as of August 3,
1995, among Bank and Borrowers (the "Credit Agreement"). Borrowers shall pay
interest and principal on this Note from the date hereof until paid in full at
the times and interest rates set forth for the "Revolving Loan" in the Credit
Agreement.
2. APPLICATION AND FORM OF PAYMENTS. Payments will be applied first to
--------------------------------
accrued interest and then to principal, and all interest on this Note will be
computed on the basis of the actual number of days elapsed over a 360-day year.
Payments of interest and principal must be made in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts. Payments received after 2:00 p.m. will be
treated as being received on the next banking day.
3. DEFAULT AND REMEDIES. This Note is executed pursuant to the Credit
--------------------
Agreement and is secured by liens and security interests granted by Borrowers to
Bank as described in the Credit Agreement. The provisions of the Credit
Agreement are incorporated by reference in this Note, and reference is made to
the Credit Agreement for a description of the relative rights and obligations of
Borrowers and Bank concerning this Note, including prepayment, events of
default, and acceleration of maturity in the event of default. The terms used
in the Credit Agreement are used in this Note with the same meaning set forth in
the Credit Agreement.
4. DEFAULT; REMEDIES; PAYMENT OF COSTS. The provisions of the Credit
-----------------------------------
Agreement are incorporated by reference in this Note, and reference is made to
the Credit Agreement for a description of the relative rights and obligations of
Borrowers and Bank concerning this Note, including events of default,
acceleration of maturity in the event of default, and payment by Borrowers of
all costs and expenses incurred by the holder of this Note in enforcing or
collecting this Note. The terms used in the Credit Agreement are used in this
Note with the same meaning set forth in the Credit Agreement.
5. WAIVER AND CONSENTS. Borrowers and every other person liable at any
-------------------
time for payment of this Note waives presentment, protest, notice of protest,
and notice of dishonor. Borrowers expressly consent to all extensions and
renewals of this Note (as a whole or in part) and all delays in time of payment
or other performance under this Note that the holder of this Note grants at any
time and from time to time, without limitation and without any notice to or
further consent of Borrowers. Each Borrower agrees that its obligations under
this Note are independent of the obligations of any other Borrower or other
person or entity that now or later is obligated to pay this Note. Borrowers
also agree that Bank may release any security for or other obligor of this Note
or waive, extend, alter, amend, or modify the Note or otherwise take any action
that varies the risk of any Borrower without releasing or discharging any
Borrower from its obligation to repay this Note.
6. VENUE AND WAIVER OF JURY TRIAL. Borrowers further agree that venue for
------------------------------
each action, suit, or other legal proceeding arising under or relating to this
Note or any agreement securing or related to this Note shall be as set forth in
the Credit Agreement. BORROWERS AND BANK KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR OTHER LITIGATION ARISING UNDER OR RELATING TO THIS NOTE OR ANY
AGREEMENT SECURING OR RELATING TO THIS NOTE. BORROWERS AND BANK HAVE FULLY
DISCUSSED THIS PROVISION AND AGREE THAT THIS WAIVER IS SUBJECT TO NO EXCEPTIONS
AND WAS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE LOANS EVIDENCED BY THIS NOTE
TO BORROWERS.
7. MISCELLANEOUS. The headings preceding the text of the sections of this
-------------
Note have been inserted solely for convenience of reference and do not limit or
affect the meaning, interpretation, or effect of this Note or the sections. The
validity, construction, interpretation, and enforceability of this Note are
governed by the laws of the State of Florida, excluding its laws relating to the
resolution of conflicts of laws of different jurisdictions. All notices,
demands, and other communications required or permitted in connection with
this Note must be given in the manner, and will become effective at the time,
specified in the Credit Agreement.
EXECUTED: August 3, 1995, in Atlanta, Georgia.
GENCOR INDUSTRIES, INC.,
a Delaware corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
GENERAL COMBUSTION CORPORATION,
a Florida corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
Chairman
GENCOR SYSTEMS, INC.,
a Florida corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
THERMOTECH SYSTEMS CORPORATION,
a Florida corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
GENCO-SELLERS, INC.,
a Pennsylvania corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
BITUMA-STOR, INC.,
an Iowa corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
BITUMA CORPORATION,
a Washington corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
DAVIS LINE, INC.,
an Indiana corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
EQUIPMENT SERVICES GROUP, INC.,
a Florida corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
MIDWEST TANK & CONSTRUCTION
HOLDING CORP., a Florida
corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
THERMO TECH SYSTEMS CORPORATION
OF FLORIDA, a Florida
corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
GENCOR FSC, LTD.,
a Florida corporation
By: /s/ E. J. Elliott
----------------------
E. J. Elliott
President
STATE OF GEORGIA )
COUNTY OF _________ )
The foregoing instrument was executed and acknowledged before me this _____
day of August, 1995, by E. J. Elliott as Chairman of General Combustion
Corporation, a Florida corporation, and as President of Gencor Industries, Inc.,
a Delaware corporation, Gencor Systems, Inc., a Florida corporation, Thermotech
Systems Corporation, a Florida corporation, Genco-Sellers, Inc., a Pennsylvania
corporation, Bituma-Stor, Inc., an Iowa corporation, Bituma Corporation, a
Washington corporation, Davis Line, Inc., an Indiana corporation, Equipment
Services Group, Inc., a Florida corporation, Midwest Tank & Construction Holding
Corp., an Indiana corporation, Thermo Tech Systems Corp., a Florida
corporation, and Gencor FSC, Ltd., a Jamaica corporation. He has produced
___________ as identification.
--------------------------------
Print Name:
---------------------
Notary Public, State at Large
My commission expires:
AFFIDAVIT OF ACCEPTANCE
-----------------------
The undersigned certifies that he today accepted delivery of this promissory
note in Atlanta, Georgia.
SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
By:
----------------------------------
Fred Elliott
Title:
-----------------------------