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EXHIBIT 10.41
FIRST AMENDMENT TO SWING LINE NOTE
THIS FIRST AMENDMENT TO SWING LINE NOTE (this "Amendment") is
made this 19th day of February, 1997, by FALCONITE EQUIPMENT, INC. (formerly
known as Falconite, Inc.), an Illinois corporation ("Borrower"), and is accepted
by CITIZENS BANK & TRUST COMPANY OF PADUCAH ("Lender").
WITNESSETH:
WHEREAS, Borrower has heretofore executed and delivered to
Lender its Swing Line Note dated June 14, 1996, and payable to the order of
Lender in the maximum principal amount of Two Million Dollars ($2,000,000.00)
(the "Note"); and
WHEREAS, Borrower desires to amend the Note to in the manner
hereinafter set forth and Lender is willing to consent thereto on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower hereby amends the Note as follows:
1. The first sentence of the first full paragraph on page
1 of the Note is hereby deleted in its entirety and the following substituted in
lieu thereof:
"FOR VALUE RECEIVED, on the Commitment Termination
Date, the undersigned, FALCONITE EQUIPMENT, INC. (formerly known
as Falconite, Inc.), an Illinois corporation (the "Borrower"),
hereby unconditionally promises to pay to the order of CITIZENS
BANK & TRUST COMPANY OF PADUCAH (the "Lender"), the principal
sum of Two Million Dollars ($2,000,000.00), or such lesser
amount as may then be outstanding under this Note."
2. The first, second and third full paragraphs on page 2
of the Note are hereby deleted in their entirety and the following substituted
in lieu thereof:
"This Note has been executed and delivered pursuant to
the terms of that certain Revolving Credit and Term Loan
Agreement dated October 5, 1995, by and between Borrower and
Lender, as amended by that certain First Amendment to Revolving
Credit and Term Loan Agreement dated January 5, 1996, that
certain Second Amendment to Revolving Credit and Term Loan
Agreement dated June 14, 1996, and that certain Third Amendment
to Revolving Credit and Term Loan Agreement dated February 19,
1997 (as so amended and as the same may from time to time
be further amended, modified, extended or renewed, the "Loan
Agreement") and is the "Swing Line Note" referred to therein.
Reference is hereby made to the Loan Agreement
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for a statement of (i) the obligations of Lender to advance
funds hereunder, (ii) the events upon which the maturity of this
Note may be accelerated and (iii) other terms and conditions,
including prepayment, which may affect this Note. All
capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to them in the Loan
Agreement.
This Note is secured by that certain Security Agreement
dated October 5, 1995, and executed by Borrower in favor of
Lender, as amended by that certain First Amendment to Security
Agreement dated February 19, 1997 (as so amended and as the
same may from time to time be further amended, modified,
extended or renewed, the "Security Agreement"). Reference is
hereby made to the Security Agreement for (i) a description of
the security and (ii) a statement of the terms and conditions
upon which this Note is secured.
As consideration for this Note, the Shareholder
Guarantors have executed that certain Continuing Guaranty dated
October 5, 1995, in favor of Lender, as amended by that certain
First Amendment to Continuing Guaranty dated January 5, 1996,
that certain Second Amendment to Continuing Guaranty dated June
14, 1996, and that certain Third Amendment to Continuing
Guaranty dated February 19, 1997 (as so amended and as the same
may from time to time be further amended, modified, extended or
renewed, the "Continuing Guaranty"). Reference is hereby made to
the Continuing Guaranty for (i) a description of the guaranty
and (ii) a statement of the terms and conditions upon which this
Note is guaranteed.
As consideration for this Note, the Parent Guarantor
has executed that certain Continuing Guaranty dated February
19, 1997, in favor of Lender (as the same may from time to
time be amended, modified, extended or renewed, the "Parent
Guaranty"). Reference is hereby made to the Parent Guaranty for
(i) a description of the guaranty and (ii) a statement of the
terms and conditions upon which this Note is guaranteed."
3. Except to the extent specifically amended by this
Amendment, all of the terms, provisions and conditions contained in the Note
shall be and remain in full force and effect and the same are hereby ratified
and confirmed.
4. All references in the Note to "this Note" and any other
references of similar import shall henceforth mean the Note as amended by this
Amendment.
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5. Borrower hereby represents and warrants to Lender that:
(a) the execution, delivery and performance by
Borrower of this Amendment are within the corporate powers of
Borrower, have been duly authorized by all necessary corporate
action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official or
any other third party;
(b) the execution, delivery and performance by
Borrower of this Amendment do not conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute
a default under or result in any violation of, the terms of the
Articles of Incorporation or By-Laws of Borrower, any applicable
law, rule, regulation, order, writ, judgment or decree of any
court or governmental or regulatory agency or instrumentality or
any agreement, document or instrument to which Borrower is a
party or by which it is bound or to which it is subject;
(c) this Amendment has been duly executed and
delivered by Borrower and constitutes the legal, valid and
binding obligation of Borrower enforceable against Borrower in
accordance with its terms; and
(d) as of the date hereof, all of the
representations, warranties and covenants of Borrower set forth
in the Note are true and correct and no default or event of
default under or within the meaning of the Note has occurred and
is continuing.
6. This Amendment shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower may not assign or delegate any of its rights or obligations
hereunder.
7. This Amendment shall be governed by and construed in
accordance with the substantive laws of the Commonwealth of Kentucky (without
reference to conflict of law principles).
8. In the event of any inconsistency or conflict between
the Note and this Amendment, the terms, provisions and conditions contained in
this Amendment shall govern and control.
9. Lender is hereby authorized to attach this Amendment to
the Note as a part thereof.
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IN WITNESS WHEREOF, Borrower has executed this First Amendment
to Swing Line Note this 19th day of February, 1997.
FALCONITE EQUIPMENT, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: President
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Accepted this 19th day of February, 1997.
CITIZENS BANK & TRUST COMPANY OF
PADUCAH
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Senior Vice President
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