EXHIBIT 99.4
REVOLVING NOTE
Amount: $1,000,000. Date: January 27, 1999
Chicago, Illinois
ON DEMAND, BPI PACKAGING TECHNOLOGIES, INC., a Delaware corporation
("Borrower"), having its office located at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxxxxxxxx 00000, promises to pay to the order of FRANKLIN CAPITAL
CORPORATION ("Lender"), 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, the
principal sum of One Million and no/l00 ($1,000,000.00) Dollars (U.S.), or if
less, the aggregate unpaid principal amount of all loans and advances made by
the Lender to the Borrower under this Note together with interest on the unpaid
principal balances hereof from time to time unpaid calculated at a variable rate
per annum equal to five percent (5.0%) above the prime rate of interest
announced from time to time by Bank of America National Trust and Savings
Association, or its successor in interest ("Bank of America"). Notwithstanding
anything contained in this Note to the contrary, the annual interest rate
charged on this Note shall not be less than a minimum annual fixed rate of
twelve and three-quarters percent (12-3/4%) per annum. Interest shall be payable
on the first (lst) day of each and every month hereafter and shall be based upon
a 360-day year and charged on the outstanding daily balances. After demand,
interest shall accrue on the entire unpaid principal balances hereof calculated
at a variable rate per annum equal to ten percent (10%) above Bank of America's
prime rate. Any change in the interest rate shall be effective on the first day
of the month following Bank of America's announcement of a change in its prime
rate. All advances and all payments made on account of the principal and
interest hereof shall be evidenced by entries on the books and records of the
Lender and shall be rebuttable presumptive evidence of the principal amount and
interest owing hereon. In addition, Xxxxxxxx agrees to pay Lender a late charge
on all payments made on this Note received more than ten (10) days after the due
date thereof in an amount equal to five percent (5.00%) of the late payment.
Notwithstanding anything contained in this Note to the contrary, Xxxxxxxx agrees
to pay Lender a minimum monthly interest payment on this Note calculated on the
principal sum of Five Hundred Thousand ($500,000.00) Dollars, whether such
principal sum is drawn (borrowed) by Borrower or not under this Note.
Unless otherwise agreed, all payments shall be first applied to accrued interest
to the date of payment, then to unpaid principal, and any remaining amount to
any unpaid Collection Costs (as hereinafter defined).
This Note is secured by a Security Agreement of even date herewith between
Borrower as debtor and Xxxxxx as secured party (such agreement, as amended or
restated from time to time, the "Security Agreement"). In the event of
nonpayment when due of any amount payable on this Note or an Event of Default
(as defined in the Security Agreement) shall occur, then this Note and all other
indebtedness of the Borrower to the Lender, at the option of Lender, shall
immediately become due and payable, without notice or demand on the Borrower,
together with all expenses, costs and attorneys' fees incurred or expended by
the Lender in enforcing its rights
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hereunder which shall become additional indebtedness immediately due and payable
hereon, and Xxxxxx may exercise any of the remedies provided by the Security
Agreement, any other loan document executed by Xxxxxxxx, or under applicable
Illinois law.
Borrower acknowledges that this Note is an obligation which is payable on demand
and that notwithstanding anything to the contrary contained herein or in any
other instrument, agreement, or other document to which Borrower and/or Lender
is a party, the enumeration in any such document of specific events of default,
conditions and/or covenants relating to the loan evidenced by this Note or to
any other obligation of the Borrower to Lender, shall not be construed to
qualify, define, or otherwise limit in any way Xxxxxx's right, power, or
ability, at any time, to make demand for payment of the principal of and
interest on this Note, and Xxxxxxxx agrees that the occurrence of any event of
default or breach of any condition or covenant in any such document is not the
only basis for demand to be made on this Note.
Lender may, at any time or times hereafter, after demand or default, appropriate
and apply toward the payment of this Note any moneys, credits, deposits, checks,
accounts, drafts, securities, certificates of deposit or other property
belonging to the Borrower, in the possession of or under the control of the
Lender, as well as any indebtedness of the Lender to the Borrower, then due or
to become due.
Borrower hereby waives presentment, demand, notice of dishonor and all other
notices and demands in connection with the enforcement of the Lender's rights
hereunder. Any failure of the Lender to exercise any right hereunder shall not
be construed as a waiver of the right to exercise the same or any other right at
any other time.
Advances under this Note may be made by the Lender upon the oral or written
request of any person whose authority to so act by corporate resolution or other
instruments lodged with the Lender has not been revoked by a writing theretofore
received by the Lender at its office. Any such advance shall be conclusively
presumed to have been made by the Lender to or for the benefit of the Borrower.
The Borrower does hereby irrevocably confirm, ratify, and approve all such
advances by the Lender and does hereby indemnify the Lender against losses and
expenses (including attorneys' costs, and reasonable attorneys' fees) and shall
hold the Lender harmless with respect thereto.
Xxxxxxxx agrees to reimburse the Lender upon demand for any and all costs and
expenses (including, without limit, court costs, legal expenses and reasonable
attorneys' fees, whether or not suit is instituted, and, if suit is instituted,
whether at the trial court level, appellate level, in a bankruptcy, probate or
administrative proceeding or otherwise) incurred in collecting or attempting to
collect this Note or incurred in any other matter or proceeding relating to this
Note (all of the foregoing collectively "Collection Costs").
Borrower hereby represents that the principal amount of the loan (including all
advances hereafter made hereunder) is a business loan, that the proceeds thereof
shall be used for business purposes only and that the same is exempt from
limitations upon lawful interest, pursuant to the terms of Section 205/4 of
Chapter 8l5 of the Illinois Compiled Statutes.
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This Note may not be amended, modified or changed nor shall any waiver of any of
the provisions hereof be effective, except only by an instrument in writing,
signed by the party against whom enforcement of any waiver, amendment, change,
modification or discharge is sought.
To further secure the payment of this Note, Xxxxxxxx hereby irrevocably
authorizes any attorney of any court of record to appear for the Borrower in
such court in term, time or vacation, at any time hereafter and confess a
judgment without process against Xxxxxxxx, in favor of the holder of this Note
for such sums as may appear to be unpaid and owing thereon together with
interest, costs and attorneys' fees, and to waive and release all errors which
may intervene in such proceeding and consent to immediate execution upon such
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
The provisions of this Note shall be binding upon Borrower, its successors and
assigns, and shall inure to the benefit of and extend to the Lender and any
holder hereof.
THIS NOTE HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY LENDER IN THE STATE OF
ILLINOIS, IN WHICH STATE IT SHALL BE PERFORMED BY BORROWER. ALL ACTIONS ARISING
DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF THIS NOTE OR THE
SECURITY AGREEMENT SHALL, AT XXXXXX'S OPTION, BE INSTITUTED AND LITIGATED ONLY
IN COURTS HAVING SITUS IN COOK COUNTY, ILLINOIS, AND BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
AND HAVING ITS SITUS IN COOK COUNTY, ILLINOIS. THE VALIDITY AND CONSTRUCTION OF
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS (AS
OPPOSED TO THE CONFLICTS OF LAW PROVISIONS).
WAIVER OF JURY TRIAL: THE BORROWER ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY
IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. THE BORROWER, AFTER
CONSULTING COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION,
WAIVES ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES BETWEEN THE BORROWER AND
THE LENDER. THE LENDER SHALL NOT BE DEEMED TO HAVE GIVEN UP THIS WAIVER OF JURY
TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN INSTRUMENT SIGNED BY THE
LENDER.
BORROWER:
BPI PACKAGING TECHNOLOGIES, INC.
By: /s/ X. Xxxx Xxxxxxxxx
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Title: Chairman & Chief Executive Officer
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