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EXHIBIT 10.21
SWING LINE NOTE
$2,000,000.00 June 14, 1996
FOR VALUE RECEIVED, on the Commitment Termination Date, the
undersigned, 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. The aggregate principal amount which Lender shall be committed to have
outstanding under this Note at any one time shall not exceed the sum of Two
Million Dollars ($2,000,000.00), which amount may be borrowed, paid, reborrowed
and repaid, in whole or in part, subject to the terms and conditions hereof and
of the Loan Agreement.
Xxxxxxxx further promises to pay to the order of Lender interest on
the from time to time outstanding principal balance of this Note at the rates
and on the dates set forth in the Loan Agreement. All payments under this Note
(other than prepayments) shall be allocated among the principal, interest, late
fees, collection costs and expenses and other amounts due under this Note in
such order and manner as Lender shall elect. All prepayments under this Note
shall be applied solely to the payment of principal.
If Borrower fails to make any payment of any principal of or interest
on this Note within ten (10) days after the date the same shall become due and
payable, whether by reason of maturity, acceleration or otherwise, in addition
to all of Lender's other rights and remedies under the Loan Documents and at
law or in equity, Borrower hereby promises to pay to the order of Lender on
demand with respect to each such late payment a late fee in an amount equal to
the greater of (a) Five Percent (5%) of the amount of such late payment or (b)
Fifty Dollars ($50.00). Borrower hereby authorizes Xxxxxx to automatically
xxxxx Xxxxxxxx's Operating Account (or any one of its other depository
accounts) with Lender for any late charge Xxxxxx is entitled to and Borrower
does not include it with its regularly scheduled payment(s) when paid.
The amount of interest accruing under this Note shall be computed on
an actual day, 360-day year basis. All payments of principal and interest
under this Note shall be made in lawful currency of the United States in
Federal or other immediately available funds at the office of Lender situated
at 000 Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the holder
hereof shall designate in writing.
Xxxxxx may record the date and amount of all loans and all payments of
principal and interest hereunder in the records it maintains with respect
thereto. Xxxxxx's books and records showing the account between Xxxxxx and
Xxxxxxxx shall be admissible in evidence in any action or proceeding and shall
constitute prima facie proof of the items therein set forth.
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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, and that
certain Second Amendment to Revolving Credit and Term Loan Agreement dated June
14, 1996 (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
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 Xxxxxxxx in favor of Xxxxxx (as the same may from time
to time be 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 Guarantors have executed that
certain Continuing Guaranty dated October 5, 1995, in favor of Xxxxxx, as
amended by that certain First Amendment to Continuing Guaranty dated January 5,
1996, and that certain Second Amendment to Continuing Guaranty dated June 14,
1996 (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.
If Borrower shall fail to make any payment of principal of or interest
on this Note as and when the same shall become due and payable, or if any
"Event of Default" (as defined therein) shall occur under or within the meaning
of the Loan Agreement or the Security Agreement, then Lender may, at its
option, terminate its obligation to make any additional loans under this Note
and Lender may further declare the entire outstanding principal balance of this
Note and all accrued and unpaid interest thereon to be immediately due and
payable.
Borrower and each surety, endorser, guarantor and other party ever
liable for payment of any sums of money payable on this Note jointly and
severally waive demand for payment, presentment, protest, notice of protest and
non-payment, or other notice of default, notice of acceleration and intention
to accelerate, and agree that their liability under this Note shall not be
affected by any renewal or extension in the time of payment hereof, or in any
indulgences, or by any release or change in any security for the payment of
this Note, and hereby consent to any and all renewals,
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extensions, indulgences, releases or changes, regardless of the number of such
renewals, extensions, indulgences, releases or changes.
No waiver by Lender of any of its rights or remedies hereunder or
under any other document evidencing or securing this Note or otherwise shall be
considered a waiver of any other subsequent right or remedy of Lender; no delay
or omission in the exercise or enforcement by Lender of any rights or remedies
shall ever be construed as a waiver of any right or remedy of Lender; and no
exercise or enforcement of any such rights or remedies shall ever be held to
exhaust any right or remedy of Lender.
This Note is being executed and delivered, and is intended to be
performed, in the Commonwealth of Kentucky. Except to the extent that the laws
of the United States of America may apply to the terms hereof, the substantive
laws of the Commonwealth of Kentucky shall govern the validity, construction,
enforcement and interpretation of this Note. In the event of a dispute
involving this Note or any other instruments executed in connection herewith,
Borrower irrevocably agrees that venue for such dispute shall lie in any court
of competent jurisdiction located in XxXxxxxxx County, Kentucky.
If this Note is placed in the hands of an attorney for collection or
for foreclosure of the Security Agreement securing payment hereof, or if this
Note is collected through any legal proceedings at law or in equity or in
bankruptcy, receivership or other court proceedings, Borrower promises to pay
all costs and expenses of such collection and/or foreclosure, including,
without limitation, court costs and the reasonable attorneys' fees and expenses
of the holder hereof.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO TRIAL BY JURY BORROWER MAY HAVE IN ANY LITIGATION ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE. BORROWER CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF LENDER OR XXXXXX'S COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES
THAT XXXXXX HAS BEEN INDUCED TO ACCEPT THIS NOTE IN PART BY THE PROVISIONS OF
THIS WAIVER.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Swing Line Note as of
the day and year first above written.
BORROWER:
FALCONITE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: President
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