Exhibit
10.1


 





 


TERM
NOTE


 


(U.S.
Small Business Administration Paycheck Protection Program)


 


	SBA
    Loan #	4409517205
	 	 
	SBA
    Loan Name	DBA ShypDirect
	 	 
	Date	4/28/2020
	 	 
	Loan
    Amount	$504,940.00
	 	 
	Interest
    Rate	Fixed
    at 1.00% per year
	 	 
	Borrower	ShypDirect, LLC
	 	 
	Lender	M&T
        Bank

        One
        M& T Plaza (Attn: Office of General Counsel), Buffalo, New York 14203



 


	1.	PROMISE
    TO PAY:


 


In
return for the Loan, Borrower promises to pay to the order of Lender the amount of Five hundred four thousand nine hundred
forty dollars and 00/100 Dollars, interest on the unpaid principal balance, and all other amounts, fees, and costs,
required by this Note.


 


	2.	DEFINITIONS:


 


“Loan”
means the loan evidenced by this Note.


 


“Loan
Documents” means the documents related to this loan signed by Borrower, including, but not limited to, the Paycheck Protection
Program Application.


 


“Note”
means this Term Note executed by Borrower in favor of Lender of even date herewith.


 


“SBA” means the Small Business
Administration, an Agency of the United States of America.


 


“Paycheck
Protection Program” means the Paycheck Protection Program under the Coronavirus Aid, Relief, and Economic Security Act.


 




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	3.	PAYMENT
    TERMS:


 


Borrower
must make all payments at the place Lender designates. The payment terms for this Note are:


 




 





Maturity:
This is a term loan that will mature in 2 years (24 months) from the date of this Note (the “Maturity Date”). The
interest rate is fixed at 1.00% per year. The interest rate may not be changed during the life of the loan unless changed in accordance
with H.R. 748 Coronavirus Aid, Relief, and Economic Security Act or “CARES Act”.


 


The term of this loan is 24 months. During the first 6 months of
the loan term (referred to herein as the “Deferral Period”), required payments of principal and interest shall be deferred.
During the Deferral Period, interest on the outstanding principal balance will continue to accrue. After the Deferral Period, commencing
on the date which is seven (7) months from the date of this Note, this Note shall be repaid in consecutive level monthly installments
comprised of both principal and interest in amounts that would result in the outstanding principal balance as of the end of the
Deferral Period plus interest (including all interest accrued during the Deferral Period) being repaid in full over the course
of the amortization period. Lender will provide a letter to the Borrower prior to the end of the Deferral Period establishing the
terms for repayment of the Loan to Lender which shall set forth the total outstanding balance due under the Loan, including principal
and interest as of the end of the Deferral Period, the amount of each monthly payment and the payment due date (the "Repayment
Letter"), the terms of which shall be incorporated and made a part of this Note. Borrower promises, covenants, and agrees
with Lender to repay the Loan in accordance with the terms for repayment as set forth in the Repayment Letter, as same may be amended,
modified or restated from time to time by Lender in Lender's sole discretion. Absent manifest error, Lender’s determination
of any amount due in connection herewith shall be conclusive.


 


The
amortization period for this loan is 18 months, meaning that this is the approximate number of months that would be needed to
repay the principal amount in full, based on the installment amount and payment frequency stated above. Lender must adjust the
payment amount at least annually as needed to amortize principal over the remaining term of the Note. Principal and interest payment
amounts are subject to change, in accordance with any loan forgiveness or other adjustments made in connection with the Paycheck
Protection Program. 


 


Interest
shall be calculated on the basis of actual number of days elapsed in each year, from and including the date the proceeds of this
Note are disbursed to, but not including, the date all amounts hereunder are paid in full. Interest will continue to accrue on
the actual principal balance outstanding until the Loan is paid in full.


 


Lender
will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring principal
current, and will apply any remaining balance to reduce principal.


 


Loan
Prepayment: Borrower may prepay this Note at any time without notice or penalty.


 


All
remaining principal and accrued interest, and any other amounts due pursuant to this Note, shall be due and payable on the Maturity
Date.


 


Preauthorized
Transfers from Deposit Account. Borrower hereby authorizes Lender to debit Borrower’s deposit account #    ********** with
M&T Bank automatically for any amount which becomes due under this Note.


 


Default
Rate. Upon the occurrence of a default, but at all times subject to the restrictions and requirements of the Paycheck Protection
Program and all other applicable laws, Lender, in Lender’s sole discretion and without notice or demand, may raise the rate
of interest accruing on the principal balance outstanding under this Note by the lesser of (i) 5% above the rate otherwise applicable
or (ii) such amount as permitted under the Paycheck Protection Program or otherwise under applicable law, independent of whether
the Lender elects to accelerate the principal balance under this Note. Interest shall continue to accrue at the default rate set
forth in this Note on any judgment Lender may obtain against Borrower, to the extent permitted under the Paycheck Protection Program
or otherwise under applicable law.


 





 




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	4.	DEFAULT:


 


Borrower
is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower:


 


	 	A.	Fails
    to do anything required by this Note and other Loan Documents;
	 	B.	Defaults
    on any other loan, liability, covenant, or agreement with Lender;
	 	C.	Does
    not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;
	 	D.	Makes,
    or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA;
	 	E.	Defaults
    on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower’s ability
    to pay this Note;
	 	F.	Fails
    to pay any taxes when due;
	 	G.	Becomes
    the subject of a proceeding under any bankruptcy or insolvency law;
	 	H.	Has
    a receiver or liquidator appointed for any part of their business or property;
	 	I.	Makes
    an assignment for the benefit of creditors;
	 	J.	Has
    any adverse change in financial condition or business operation that Lender believes may materially affect Borrower’s
    ability to pay or perform any obligation of Borrower to Lender ;
	 	K.	Reorganizes,
    merges, consolidates, or otherwise changes ownership or business structure without Lender’s prior written consent; or
	 	L.	Becomes
    the subject of a civil or criminal action that Lender believes may materially affect Borrower’s ability to pay this
    Note.


 


	5.	LENDER’S
    RIGHTS IF THERE IS A DEFAULT:


 


Without
notice or demand and without giving up any of its rights, Lender may:


 


	 	A.	Cancel this Note if Loan proceeds have not been disbursed;
	 	B.	Require immediate payment of all amounts owing under this Note;
	 	C.	Collect
    all amounts owing from any Borrower; or
	 	D.	File
    suit and obtain judgment.


 


	6.	LENDER’S
    GENERAL POWERS:


 


Without
notice and without Borrower’s consent, Lender may:


 


	 	A.	Incur
    expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document. Among other things,
    the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs,
    and reasonable attorney’s fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower
    or add the expenses to the principal balance.  Borrower understands and agrees that upon an event of default, Lender may
    incur costs of collection, including attorneys’ fees, after the date of any judgment that Lender may obtain against
    Borrower. Borrower agrees to pay all of such costs and fees. Borrower further agrees that Borrower’s obligation to pay
    such costs and fees, which are incurred by Lender after the date of any judgment obtained by Lender, shall survive the entry
    of, and shall not be merged into, any such judgment;
	 	B.	Release
    anyone obligated to pay this Note; and
	 	C.	Take
    any action necessary to collect amounts owing on this Note.


 




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	7.	WHEN
    FEDERAL LAW APPLIES:


 


When
SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may
use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By
using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to
this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA,
or preempt federal law.


 


	8.	SUCCESSORS
    AND ASSIGNS:


 


Under
this Note, Borrower includes its successors, and Lender includes its successors and assigns.


 


	9.	GENERAL
    PROVISIONS:


 


	 	A.	Borrower
    waives all suretyship defenses.
	 	B.	Borrower
    must sign all documents necessary at any time to comply with the Loan Documents.
	 	C.	Lender
    may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo
    enforcing any of its rights without giving up any of them.
	 	D.	Borrower
    may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note.
	 	E.	If
    any part of this Note is unenforceable, all other parts remain in effect.
	 	F.	To
    the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand,
    protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee.
	 	G.	Collateral
    Exclusion. Any indebtedness and related obligations evidenced herein shall not be collateralized by any security interest
    or lien granted to Lender by Borrower or other obligor, if any, in any real property or tangible personal property, notwithstanding
    any provisions to the contrary in any other agreements (including any unrelated lien instrument) now or hereafter existing
    between Lender and Borrower or other obligor. It is acknowledged and understood by Borrower that the preceding sentence shall
    be at all times subject to, and shall not in any way compromise or impair, any other rights and remedies of Lender, including,
    without limitation, rights of setoff, rights to enforce judgment liens and rights related to judgment execution against applicable
    assets of any judgment debtor.
	 	H.	Business
    Purpose. The Loan proceeds shall be used only for a business purpose and pursuant to, and in accordance with, the terms of
    the Paycheck Protection Program. Borrower acknowledges that at least 75 percent of the Loan proceeds must be used for payroll
    costs.
	 	I.	Further
                                         Assurances. The Borrower shall take such action and execute and deliver to Lender such
                                         additional documents, instruments, certificates, and agreements as Lender may reasonably
                                         request to effectuate the terms and purposes of this Note, and as may otherwise be required
                                         for Lender to comply with terms and conditions of the Paycheck Protection Program Loan
                                         Authorization. Any inadvertent or clerical error or omission made herein shall not relieve
                                         Borrower of its obligations set forth in this Note, provided that such error does not
                                         impose a greater liability than as agreed upon herein. Any such inadvertent or clerical
                                         error or omission may be rectified by notice to Borrower.










 




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	9.	GENERAL
    PROVISIONS CONT.


 




 


J.
Good Standing. Borrower represents and warrants that it is an entity or sole proprietor (i) duly organized and existing and in
good standing under the laws of the jurisdiction in which it was formed, (ii) duly qualified, in good standing and authorized
to do business in every jurisdiction in which failure to be so qualified might have a material adverse effect on its business
or assets and (iii) has the power and authority to own each of its assets and to use them as contemplated now or in the future.


 


K.
Sale of Interest. There shall not be any sale or transfer of ownership of any interest in Borrower without the Lender’s
prior written consent.


 


L.
Change of Name. Borrower shall not change its legal name or the State or the type of its formation, without giving the Lender
at least 30 days prior written notice thereof.


 


M.
Borrower will furnish to Lender from time to time, such financial data and information about Borrower as Lender may reasonably
request and Borrower represents and warrants the accuracy of any information contained therein.


 


N.
Electronic Signatures. The individual executing this Note agrees that electronic signatures, whether pdf, scanned, digital, encrypted,
captured or otherwise attached or imposed hereto, are intended to authenticate this Note and to have the same effect, validity,
and enforceability as manually executed signatures. For purposes hereof, electronic signature means any electronic sound, symbol
or process attached to or logically associated with a record and executed and adopted by an individual with the intent to sign
such record.


 


O.
Loan Forgiveness under the Paycheck Protection Program. The Loan amount may be eligible for forgiveness pursuant to the Paycheck
Protection Program, which minimally requires (1) at least 75% of the loan proceeds are used to cover payroll costs and the remainder
is used for mortgage interest, rent and utility costs over the 8 week period after the loan is made, and (2) the number of employees
and compensation levels are generally maintained. Additional requirements may apply. Further details on how to request loan forgiveness
shall be made available to you upon further guidance from the SBA.


 


P.
Indemnification. Borrower shall indemnify, defend and hold Lender and Lender Affiliates and their directors, officers, employees,
agents and attorneys (each an “Indemnitee”) harmless against any claim brought or threatened against any Indemnitee
by Borrower or by any other person (as well as from attorneys’ reasonable fees and expenses in connection therewith) on
account of Lender’s relationship with Borrower (each of which may be defended, compromised, settled or pursued by Lender
with counsel of Lender’s selection, but at the expense of the Borrower), except for any claim arising out of the gross negligence
or willful misconduct of Lender.


 


Q.
Representations and Warranties. Borrower represents and warrants to, and with regard to item (a) the individual executing this
Note also represents and warrants, in his/her individual capacity, to, and covenants with Lender as follows: (a) the individual
executing this Note is duly authorized to do so and to bind Borrower and Borrower’s heirs, successors and/or assigns to
the terms hereof; (b) each of the Loan Documents is a valid and legal binding obligation of Borrower, enforceable in accordance
with its terms, and is not subject to any defenses, counterclaims, or offsets of any kind; (c) there exists no action, suit, proceeding
or investigation, at law or in equity, before any court board, administrative body or other entity, pending or threatened, affecting
Borrower’s property, wherein an unfavorable decision, ruling or finding would materially adversely affect the business operations,
property or financial condition of Borrower; (d) Borrower shall advise Lender if there is an adverse change in Borrower’s
financial condition, organization, operations or fixed assets since the date this Note is signed; (e) Borrower attests to the
accuracy of and reaffirms each certification made in the Paycheck Protection Program Application as if fully set forth herein.


 


R.
Credit Reporting. The undersigned authorizes Lender and its affiliates to request and review all data it deems appropriate about
Borrower and the undersigned, including credit reports from agencies, now and for all future reviews, extensions, or renewals
of credit extended to Borrower, or for collection of loans. The undersigned may inquire whether a credit report was requested
and if so, obtain the name and address of the credit reporting agency furnishing the credit report.


 


S.
Reproductions. A photographic or other reproduction of this Note may be made by Lender, and any such reproduction shall be admissible
in evidence with the same effect as the original itself in any judicial or administrative proceeding, whether or not the original
is in existence.


 


T.
Right of Setoff. The Lender shall have the right to set-off against the amounts owing under this Note any property held in a deposit
or other account with the Lender or any affiliates or otherwise owing by the Lender or any affiliates in any capacity to Borrower.
Such set-off shall be deemed to have been exercised immediately at the time the Lender or such affiliate elects to do so.


 





 




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U.
Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing and duly given if delivered
to Borrower (at its address on the Lender’s records) or to the Lender (at the address on page one and separately to the
Lender officer responsible for Borrower’s relationship with the Lender). Such notice or demand shall be deemed sufficiently
given for all purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (ii) by mail or
courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United
States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier
service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement between Borrower and the
Lender.


 


V.
Complete Agreement. This Note, together with any related Loan Documents, contains the entire agreement between Borrower and Lender
with respect to the Note, and supersedes every course of dealing, other conduct, oral agreement and representation previously
made by Lender. No waiver or amendment of any provision of this Note shall be effective unless made specifically in writing by
the Lender. No course of dealing or other conduct, no oral agreement or representation made by the Lender, and no usage of trade,
shall operate as a waiver of any right or remedy of the Lender. No waiver of any right or remedy of the Lender shall be effective
unless made specifically in writing by the Lender.


 


W.
Governing Law/Jurisdiction. This Note has been delivered to and accepted by the Lender and will be deemed to be made in the State
of New York. Except as otherwise provided under federal law, this Note will be interpreted in accordance with the laws of the
State of New York excluding its conflict of laws rules. Borrower hereby irrevocably consents to the exclusive jurisdiction of
any State or Federal Court in New York State in a county or judicial district where Lender maintains a branch and consents that
Lender may effect any service of process in the manner and at Borrower’s address set forth in Lender’s records for
providing notice or demand; provided that nothing contained in this note will prevent Lender from bringing any action, enforcing
any award or judgment or exercising any rights against Borrower individually, against any security or against any property of
Borrower within any county, state, or other foreign or domestic jurisdiction.


 


Borrower
acknowledges and agrees that the venue provided above is the most convenient forum for both Lender and Borrower. Borrower waives
any objection to venue and any objection based on a more convenient forum in any action instituted under this Note.


 


X.
Waiver of Jury Trial. Borrower and Lender hereby knowingly, voluntarily, and intentionally waive any right to trial by jury Borrower
and Lender may have in any action or proceeding, in law or in equity, in connection with this Note or the transactions related
hereto. Borrower represents and warrants that no representative or agent of Lender has represented, expressly or otherwise, that
Lender will not, in the event of litigation, seek to enforce this jury trial waiver. Borrower acknowledges that Lender has been
induced to enter into this Note by, among other things, the provisions of this section.


 





Y. If prior to disbursing the Loan proceeds Lender makes a good
faith determination that Borrower made untrue, misleading or false representations or statements to Lender or in connection with
its Paycheck Protection Program Application and supporting documents, or Lender otherwise determines in good faith that disbursing
the loan proceeds will cause Lender to violate any duty or obligation under any law, rule or regulation, Lender shall have no obligation
to disburse any funds and this Note shall be deemed cancelled.




 





 




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	10.	BORROWER’S
    NAME(S) AND SIGNATURE(S):


 


By
signing below, each individual or entity becomes obligated under this Note as Borrower.


 


Borrower
acknowledges that it has read and understands all the provisions of this Note, and has been advised by counsel as necessary or
appropriate.


 


Executed
effective as of the date first written above.


 


	 	Borrower: ShypDirect, LLC
	 	





	 	By:	/s/
John Mercadante
	 	 	Signature
    4/28/2020
	 	 	 
	 	John
    Mercadante
	 	Printed
    Name
	 	 
	 	Authorized
    Representative of Borrower
	 	Title


 




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