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Exhibit 10.40
EXECUTION COPY
REVOLVING NOTE
EXECUTED AS OF THE 7TH DAY OF APRIL, 1997 $3,000,000.00
FOR VALUE RECEIVED, GRAFALLOY CORPORATION, a Delaware corporation
(the "Borrower"), promises to pay to the order of LASALLE BUSINESS CREDIT, INC.
("LaSalle"), at its offices located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, the principal sum of THREE MILLION DOLLARS ($3,000,000) on the
last day of the Term (the "Maturity Date"), or so much of such principal sum as
shall be outstanding and unpaid on the Maturity Date, all as more fully set
forth in the Loan and Security Agreement dated as of April 7, 1997 (as the same
may be amended, modified, restated on supplemented from time to time, the "Loan
Agreement") by and between the Borrower and LaSalle, as Lender. Terms which
are capitalized in this Revolving Note ("Revolving Note") but are not otherwise
defined shall have the meanings ascribed to them in the Loan Agreement. The
Borrower further promises to (a) make mandatory prepayments of principal of
this Revolving Note as set forth in paragraphs 2(a) and 12(c) of the Loan
Agreement and (c) pay interest on the outstanding principal amount hereof on
the dates and at the rate provided in the Loan Agreement from the date hereof
until payment in full hereof. This Revolving Note is referred to in and was
delivered pursuant to the Loan Agreement and is subject to and entitled to all
provisions and benefits thereof.
The Borrower hereby authorizes XxXxxxx to charge any account of the
Borrower for all sums payable hereunder as and when such sums become due. If
payment hereunder becomes due and payable on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day, and
interest shall be payable thereon at the rate specified during such extension.
Credit shall be given for payments made in the manner and at the times provided
in the Loan Agreement. It is the intent of the parties that the rate of
interest and other charges to the Borrower under this Revolving Note shall be
lawful; therefore, if for any reason the interest or other charges payable
hereunder are found by a court of competent jurisdiction, in a final
determination, to exceed the limit which LaSalle may lawfully charge the
Borrower, then the obligation to pay interest or other charges shall
automatically be reduced to such limit and, if any amount in excess of such
limit shall have been paid, then such amount shall be refunded to the Borrower.
The principal and all accrued interest hereunder may be prepaid by
the Borrower, in part or in full, at any time; provided, however, that if the
Borrower prepays all of the Liabilities prior to the end of the Term, the
Borrower may be required to pay a prepayment fee as provided in paragraph 12(b)
of the Loan Agreement.
The Borrower waives the benefit of any law that would otherwise
restrict or limit LaSalle in the exercise of its right, which is hereby
acknowledged, to set-off against the Liabilities, without notice and at any
time hereafter, owing from LaSalle to the Borrower.
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The Borrower, any other party liable with respect to the
Liabilities and any and all endorsers and accommodation parties, and each one
of them, if more than one, waives any and all presentment, demand, notice of
dishonor, protest, and all other notices and demands in connection with the
enforcement of XxXxxxx's rights hereunder.
The loans evidenced hereby have been and will be made and this
Revolving Note has been delivered at Chicago, Illinois. THIS REVOLVING NOTE
SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL
OTHER RESPECTS, INCLUDING WITHOUT LIMITATION THE LEGALITY OF THE INTEREST RATE
AND OTHER CHARGES, and shall be binding upon the Borrower and each of the
Borrower's legal representatives, successors and assigns. If this Revolving
Note contains any blanks when executed by the Borrower, XxXxxxx is hereby
authorized, without notice to the Borrower, to complete any such blanks
according to the terms upon which the loan or loans were granted. Wherever
possible, each provision of this Revolving Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Revolving Note shall be prohibited by or be invalid under such law,
such provision shall be severable, and be ineffective to the extent of such
prohibition or invalidity, without invalidating the remaining provisions of
this Revolving Note.
To induce LaSalle to make the loans evidenced by this Revolving
Note, the Borrower (i) irrevocably agrees that, subject to XxXxxxx's sole and
absolute election, all actions arising directly or indirectly as a result of or
in consequence of this Revolving Note or any other agreement with LaSalle, or
the Collateral, shall be instituted and litigated only in courts having situs
in the City of Chicago, Illinois, (ii) hereby consents to the exclusive
jurisdiction and venue of any State or Federal Court located and having its
situs in said city, and (iii) waives any objection based on forum
non-conveniens. IN ADDITION, THE BORROWER HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS REVOLVING
NOTE, THE LIABILITIES, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY THE
BORROWER OR LASALLE OR WHICH IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF
OR RELATES TO THE RELATIONSHIP BETWEEN THE BORROWER AND LASALLE, waives
personal service of any and all process, and consents that all such service of
process may be made by certified mail, return receipt requested, directed to
the Borrower at the address indicated in LaSalle's records; and service so made
shall be complete five (5) days after the same has been deposited in the U.S.
mails as aforesaid.
IN WITNESS WHEREOF, the Borrower has executed this Revolving Note on
the date above set forth.
GRAFALLOY CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Wm. Xxxxxxxxx
Title: Director
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