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EXHIBIT 10.39
SECOND AMENDMENT TO REVOLVING CREDIT NOTE
THIS SECOND AMENDMENT TO REVOLVING CREDIT 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 Revolving Credit Note dated October 5, 1995, and payable to the
order of Lender in the maximum principal amount of Seven Million Dollars
($7,000,000.00), as amended by that certain First Amendment to Revolving Credit
Note dated June 14, 1996 (the "Note"); and
WHEREAS, Borrower desires to amend the Note to, among other
things, increase the maximum principal amount of the Note from Thirteen Million
Dollars ($13,000,000.00) to Thirty-Eight Million Five Hundred Thousand Dollars
($38,500,000.00), 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 reference at the top of the Note to the number
"$13,000,000.00" is hereby deleted in its entirety and the number
"$38,500,000.00" is substituted in lieu thereof.
2. 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 Thirty-Eight Million Five
Hundred Thousand Dollars ($38,500,000.00), 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 Thirty-Eight Million Five Hundred Thousand
Dollars ($38,500,000.00), 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."
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3. 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 "Revolving Credit
Note" referred to therein. Reference is hereby made to the
Loan Agreement for a statement of (i) the obligations of the
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
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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."
4. 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.
5. 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.
6. 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.
7. 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.
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8. 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).
9. 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.
10. Lender is hereby authorized to attach this Amendment
to the Note as a part thereof.
IN WITNESS WHEREOF, Borrower has executed this Second
Amendment to Revolving Credit 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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