THIRD AMENDMENT TO SECURED
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECURED CREDIT AGREEMENT (" Amendment") is
made and entered into as of the 25th day of June, 2003, by and among
Cycle Country Accessories Corporation, an Iowa corporation ("Cycle
Country Iowa"), Cycle Country Accessories Corp., a Nevada corporation
("Cycle Country Nevada") and Bank Midwest, Minnesota Iowa, N.A., a
national banking association ("Lender").
RECITALS
A. The Borrowers and the Lender are parties to that certain Secured
Credit Agreement dated as of August 21, 2001 as amended by the First
Amendment to Secured Credit Agreement dated 7/22 , 2002 and Second
Amendment to Secured Credit Agreement dated as of May 30 , 2003 (as
so amended, the "Credit Agreement"), whereby Lender extended certain
credit facilities to the Borrowers upon the terms and conditions set
forth in the Credit Agreement. Capitalized terms not otherwise
defined in this Amendment shall have the meanings given them in the
Credit Agreement.
B. The Borrowers have requested the Lender to amend the Credit
Agreement as set forth herein, and the Lender is willing to agree to
such amendment, all upon and subject to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the Recitals and the mutual
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to the Credit Agreement.
a. Section 1.3 of the Credit Agreement shall be amended in its
entirety and as so amended shall be restated to read as
follows:
Subject to the terms and conditions hereof, the Lender
agreed to extend a term loan (the "Original Term
Loan.") to the Borrowers on the date of the initial
advance of the Term Loan in the original principal
amount of $4,500,000, of which $3,013,545 remains
outstanding as of the date of the Third Amendment. The
Term Loan was made and evidenced against a Term Loan
Note of the Borrowers substantially in the form (with
appropriate insertions) as attached hereto as Exhibit
B (the "Original Term Note") payable to the order of
the Lender in the principal amount of $4,500,000.
Subject to the terms and conditions of this Agreement,
including without limitation the terms of the Third
Amendment, effective upon the date of the Third
Amendment, the Lender agrees to extend a term loan
(the "Term Loan") to the Borrowers in the principal
amount of $3,750,000. Portions of the Term Loan shall
be evidenced by term notes of the Borrower
substantially in the form (with appropriate
assertions) attached hereto as Exhibit B-1 (the "Term
Note One") and Exhibit B-2
(the "Term Note Two") each payable to order of the
Lender in the respective principal amounts of
$1,500,000 and $2,250,000 each. To the extent of the
principal amount outstanding under the Original Tern
Note, Tern Note One and Tern Note Two together amend
and restate in their entirety the Original Term Note
and are not a novation thereof. The aggregate proceeds
of Tern Note One and Tern Note Two in excess of the
outstanding balance of the Original Tern Loan shall be
used for the purpose of repaying Revolving Credit
Loans then outstanding. As used in this Agreement and
the other Loan Documents the term "Tern Note" shall
mean Tern Note One and Tern Note Two, individually or
collectively, as the context may require.
The Tern Note One shall be dated June 25,2003, bear
interest as set forth in Section 2 hereof, and be
payable as follows:
(i) equal monthly installments of principal and
interest of $11,472.78 shall be due and payable
commencing on July 25, 2003 and on the 25th day of
each month thereafter, to and including May 25,2018,
(ii) the entire unpaid principal balance of the Tern Loan evidenced
by Tern Note One and any unpaid interest thereon shall be due
and payable in full on June 25, 2018, the final maturity of
Tern Note One. Interest after maturity shall be due and payable
upon demand.
The Tern Note Two shall be dated June 25,2003, bear
interest as set forth in Section 2 hereof, and be
payable as follows:
(i) equal monthly installments of principal and
interest of $ 42,323.54 shall be due and payable
commencing on July 25, 2003, and ort the
25th day of each month thereafter, to and
including May 25, 2008,
(ii) the entire unpaid principal balance of the Term
Loan evidenced by Tern Note Two and any unpaid interest
thereon shall be due and payable in full on June 25,
2008, the final maturity of Tern Note Two.
Interest after maturity shall be due and payable
upon demand.
All repayments on the Tern Note shall be applied first
to interest owing there under and the balance, if any,
to the reduction of principal. The monthly payment
amount shall not be effected by changes in the Prime
Rate, but such changes will effect the final payment
due at maturity (whether by lapse of time,
acceleration, or otherwise). Principal payments made
by the Borrowers on the Tern Loan may not be
reborrowed.
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b. The second unlettered paragraph appearing in Section 2.1 of
the Credit Agreement shall be amended in its entirety and
as so amended shall be restated to read as follows:
The portion of the Term Loan evidenced by Term Note
One shall bear interest (which the Borrowers jointly
and severally promise to pay at the times herein
provided) at the rate per annum equal to the Prime
Rate as in effect from time to time plus one-quarter
of one percent (0.25%) per annum; provided that the
interest rate on the portion of the Term Loan
evidenced by Term Note One shall not at any time,
except if not paid when due, exceed nine and one-half
percent (9.50%) per annum, or be less than four and
one-half percent (4.50%) per annum. If the portion of
the Term Loan evidenced by Term Note One or any part
thereof is not paid when due (whether by lapse of
time, acceleration or otherwise) the portion of the
Term Loan evidenced by Term Note One shall bear
interest (which the Borrowers jointly and severally
promise to pay at the times herein provided), whether
before or after judgment, until payment in full
thereof at the rate per annum determined by adding two
percent (2%) per annum to the interest rate which
would otherwise be applicable thereto from time to
time; provided further, that in no event would such
rate of interest exceed eleven and one-half percent
(11.50%) per annum nor be less than six and one-half
percent (6.50%) per annum.
The portion of the Term Loan evidenced by Term Note
Two shall bear interest (which the Borrowers jointly
and severally promise to pay at the times herein
evidenced by Term Note Two provided) at the rate per
annum equal to the Prime Rate as in effect from time
to time plus five-eighths of one percent (0.625%) per
annum; provided that the interest rate on the portion
of the Term Loan evidenced by Term Note Two shall not
at any time, except if not paid when due, exceed eight
and one-half percent (8.50%) per annum, or be less
than four and one-half percent (4.50%) per annum. If
the portion of the Term Loan evidenced by Term Note
Two or any part thereof is not paid when due (whether
by lapse of time, acceleration or otherwise) the
portion of the Term Loan evidenced by Term Note Two
shall bear interest (which the Borrowers jointly and
severally promise to pay at the times herein
provided), whether before or after judgment, until
payment in full thereof at the rate per annum
determined by adding two percent (2%) per annum to the
interest rate which would otherwise be applicable
thereto from time to time; provided further, that in
no event would such rate of interest exceed ten and
one-half percent (10.50%) per annum nor be less than
six and one-half percent (6.50%) per annum.
c. Section 4.1 of the Credit Agreement shall be amended to add
the following new definitions thereto:
"Term Note One" and "Term Note Two" are defined in
Section 1.3 hereof.
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"Third Amendment" means the Third Amendment to Secured
Credit Agreement dated as of June 25 2003 between the
Borrowers and the Lender.
d. The definition of "Notes" appearing in Section 4.1 of the
Credit Agreement shall be amended in its entirety and as so
amended shall be restated to read as follows:
"Notes" means the Revolving Credit Note, Term Note One
and Term Note Two, collectively.
e. The Credit Agreement shall be amended to add Exhibits B-1
and B-2 attached to this Amendment as Exhibits B-1 and B-2
to the Credit Agreement.
2. Representations. Without limiting the generality of Section 10.6
of the Credit Agreement or any other term or provision thereof
and in addition thereto to the extent necessary, the Borrowers
represent and warrant to the Lender as follows: (i) the
covenants, representations and warranties of the Borrowers as
set forth in the Credit Agreement are hereby made again as of
the date hereof and are true and correct in all respects as of
the date hereof, (ii) as of the date hereof, there is no Event
of Default in existence, or any other act, omission, matter or
other occurrence whatsoever which, with the giving of notice or
the passage of time, or both, would give rise to or constitute
an Event of Default; (iii) each of the Borrowers has (i) full
power, authority and legal right to own and operate all of its
properties and assets and to carry on its respective business as
now conducted and as proposed to be conducted; and (ii) all
requisite corporate power and authority to execute, deliver and
fully perform all of the terms and conditions of this Amendment
and all other agreements, documents and instruments contemplated
hereby. All representations and warranties contained in this.
Amendment shall survive the execution and delivery hereof and
any investigation made by the Lender or its agents or
representatives.
3. Conditions to Effectiveness of Amendment. This Amendment shall
become effective only upon the satisfaction of each of the
following conditions precedent:
a. Execution and delivery by the Borrowers and the Lender of
this Amendment.
b. Delivery to the Lender of Resolutions adopted by each of
the Borrower's Board of Directors authorizing the
transactions contemplated by this Amendment.
c. Term Note One in a form and substance satisfactory to the
Lender;
d. Term Note Two in a form and substance satisfactory to the
Lender;
e. An Opinion of Counsel to the Borrowers regarding this
Amendment and the transactions contemplated hereby or
referred to herein, in a form and substance
satisfactory to the Lender and its Counsel.
f. A Guarantor's acknowledgment and consent to this Amendment
in a form and substance satisfactory to the Lender.
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g. A Second Amendment to Mortgage in a form and substance
satisfactory to the Lender.
4. Closing Fee. The Borrowers shall pay to the Lender a
nonrefundable closing fee of $25,000.
5. Expenses. The Borrower agrees to pay to the Lenders, as
additional consideration for this Amendment, all costs and
expenses incurred by the Lender (including, without limitation,
attorneys' fees not in excess of Two Thousand Five Hundred
Dollars ($2,500)) in connection with the preparation, execution
and delivery of this Amendment and all matters related hereto.
6. Effective Time. This Amendment shall be effective as of the
date hereof upon satisfaction of the conditions set forth in
paragraphs 3 and 4.
7. Continuing Effect. All of the terms and conditions of the
Credit Agreement and the other Loan Documents remain in full
force and effect, as amended hereby.
8. No Waiver. Nothing herein is intended or shall be construed as
a waiver by the Lender of any breach, default or other
nonfulfillment by the Borrowers under the Credit Agreement or
any of the other Loan Documents.
9. No Future Obligation to Amend. The Borrowers hereby expressly
recognize and agree that the Lender was in no way obligated or
required to enter into this Amendment, and that the Lender has
not agreed to and is not obligated or required to, in the
future, waive, revise, alter or amend any of the terms or
conditions of the Credit Agreement or any of the other Loan
Documents.
10. Receipt. The Borrowers hereby acknowledges receipt of a true
and correct copy of this Amendment.
11. Headings and Captions. The titles or captions of sections and
paragraphs in this Amendment are provided for convenience of
reference only, and shall not be considered a part hereof for
purposes of interpreting or applying this Amendment, and such
titles or captions do not define, limit, extend, explain or
describe the scope or extent of this Amendment or any of its
terms or conditions.
12. Further Documents and Actions. Each of the Borrowers agrees to
execute and deliver to the Lender such additional documents and
to take all such further actions as the Lender may reasonable
require in order to reflect the amendments to the Credit
Agreement effected by this Amendment.
13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall constitute one and the same
instrument.
14. Recitals. The Recitals set forth in the forepart of this
Amendment are true and correct and are an integral part of this
Amendment.
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15. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the state of
Iowa.
16. Entire Understanding. This Amendment, together with the Credit
Agreement, as amended, and other Loan Documents, constitutes
the entire understanding of the parties with respect to the
subject matters hereof and any prior agreements, whether
written or oral, with respect thereto are superseded hereby.
This Amendment shall be deemed to be part of the Credit
Agreement.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN
THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE
TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first set forth above.
Cycle Country Accessories Corporation Bank Midwest, Minnesota Iowa, N.A.
By: /s/ Xxxxxx X Xxxxxxx /s/ Xxxx Xxxxxxx
-------------------------- -------------------
Xxxxxx X. Xxxxxxx, President Xxxx Xxxxxxx, Sr. Vice President
Cycle Country Accessories Corp.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx, President
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BMW NOTE # 5002160
CYCLE COUNTRY ACCESSORIES CORPORATION
TERM NOTE ONE
$1,500,000 June 25, 2003
For value received, the undersigned, Cycle Country Accessories
Corp., a Nevada corporation, and Cycle Country Accessories Corporation,
an Iowa corporation (collectively, the "Borrowers"), jointly and
severally promise to pay to the order of Bank Midwest, Minnesota Iowa,
N.A. (the "Lender"), at the principal office of the Lender, in Okoboji,
Iowa, or at such other place as the Lender may from time to time in
writing designate, the principal sum of One Million Five Hundred
Thousand Dollars ($1,500,000), on the dates and in the amounts
specified in Section 1.3 of the Credit Agreem~nt described below.
This Note evidences a portion of the Term Loan made to the
Borrowers by the Lender under that certain Secured Credit Agreement
dated as of this same date, as amended by the First Amendment to
Secured Credit Agreement dated as of 7/22, 2002, the Second Amendment
to Secured Credit Agreement dated as of May 30 , 20 3 and the Third
Amendment to Secured Credit Agreement dated as of June 25, 2003 (as so
amended and as may be hereafter amended, restated or otherwise modified
from time to time, the "Credit Agreement"). The Borrowers hereby
jointly and severally promise to pay principal and interest payments at
the office specified above on the portion of the Term Loan evidenced
hereby in the amounts and at the rates and times specified there for in
the Credit Agreement. All capitalized terms not defined herein shall
have the meanings given them in the Credit Agreement.
The Term Loan provided for in the Credit Agreement by the Lender
to the Borrowers evidenced in part by this Note, any repayment of
principal hereon and the interest rates applicable thereto shall be
endorsed by the holder hereof on the reverse side of this Note or
recorded on the books and records of the holder hereof (provided that
such entries shall be endorsed on the reverse side hereof prior to any
negotiations or transfers hereof) and the Borrowers agree that in any
action or proceeding instituted to collect or enforce collection of
this Note, the entries so endorsed on the reverse side hereof or
recorded on the books and records of the Lender shall be prima facie
evidence of the unpaid balance of this Note and the interest rates
applicable thereto.
This Note is issued by the Borrowers under the terms and
provisions of the Credit Agreement, and this Note and the holder hereof
are entitled to all of the benefits and security provided for thereby
or referred to therein, including the Security Documents, equally and
ratably with all other Obligations of the Borrowers thereby secured, to
which reference is hereby made for a statement of such benefits and
security. This Note may be declared to be, or be and become, due prior
to its expressed maturity upon the occurrence of an event of default
specified in the Credit Agreement or any Security Document, voluntary
prepayments may be made hereon, and certain prepayments are required to
be made hereon, all in the events, on the terms and with the effects
provided in the Credit Agreement and the Security Documents.
This Note and other Obligations of the Borrowers is secured by,
among other things, security interests and mortgage liens granted to
the Lender pursuant to the Security Agreements, the Mortgage, and the
Pledge Agreement referred to and defined in the Credit Agreement.
This Note shall be construed in accordance with, and governed by,
the internal laws of the State of Iowa without regard to principles of
conflict of law.
The Borrowers hereby waive presentment for payment and demand.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
CYCLE COUNTRY ACCESSORIES CORP.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
President
CYCLE COUNTRY ACCESSORIES
CORPORATION
By:/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
BMW NOTE # 5002161
CYCLE COUNTRY ACCESSORIES CORPORATION
TERM NOTE TWO
$2,250,000 June 25, 2003
For value received, the undersigned, Cycle Country Accessories
Corp., a Nevada corporation, and Cycle Country Accessories Corporation,
an Iowa corporation (collectively, the "Borrowers"), jointly and
severally promise to pay to the order of Bank Midwest, Minnesota Iowa,
N.A. (the "Lender"), at the principal office of the Lender, in Okoboji,
Iowa, or at such other place as the Lender may from time to time in
writing designate, the principal sum of Two Million Two Hundred Fifty
Thousand Dollars ($2,250,000), on the dates and in the amounts
specified in Section 1.3 of the Credit Agreement described below.
This Note evidences a portion of the Term Loan made to the
Borrowers by the Lender under that certain Secured Credit Agreement
dated as of this same date, as amended by the First Amendment to
Secured Credit Agreement dated as of 7/22 , 2002, the Second Amendment
to Secured Credit Agreement dated as of May 30 , 20 and the Third
Amendment to Secured Credit Agreement dated as of June 25, 2003 (as so
amended and as may be hereafter amended, restated or otherwise modified
from time to time, the "Credit Agreement"). The Borrowers hereby
jointly and severally promise to pay principal and interest payments at
the office specified above on the portion of the Term Loan evidenced
hereby in the amounts and at the rates and times specified there for in
the Credit Agreement. All capitalized terms not defined herein shall
have the meanings given them in the Credit Agreement.
The Term Loan provided for in the Credit Agreement by the Lender
to the Borrowers evidenced in part by this Note, any repayment of
principal hereon and the interest rates applicable thereto shall be
endorsed by the holder hereof on the reverse side of this Note or
recorded on the books and records of the holder hereof (provided that
such entries shall be endorsed on the reverse side hereof prior to any
negotiations or transfers hereof) and the Borrowers agree that in any
action or proceeding instituted to collect or enforce collection of
this Note, the entries so endorsed on the reverse side hereof or
recorded on the books and records of the Lender shall be prima facie
evidence of the unpaid balance of this Note and the interest rates
applicable thereto.
This Note is issued by the Borrowers under the terms and
provisions of the Credit Agreement, and this Note and the holder hereof
are entitled to all of the benefits and security provided for thereby
or referred to therein, including the Security Documents, equally and
ratably with all other Obligations of the Borrowers thereby secured, to
which reference is hereby made for a statement of such benefits and
security. This Note may be declared to be, or be and become, due prior
to its expressed maturity upon the occurrence of an event of default
specified in the Credit Agreement or any Security Document, voluntary
prepayments may be made hereon, and certain prepayments are required to
be made hereon, all in the events, on the terms and with the effects
provided in the Credit Agreement and the Security Documents.
This Note and other Obligations of the Borrowers is secured by,
among other things, security interests and mortgage liens granted to
the Lender pursuant to the Security Agreements, the Mortgage, and the
Pledge Agreement referred to and defined in the Credit Agreement.
This Note shall be construed in accordance with, and governed by,
the internal laws of the State ofIowa without regard to principles of
conflict of law.
The Borrowers hereby waive presentment for payment and demand.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY
BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
CYCLE COUNTRY ACCESSORIES CORP.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, President
CYCLE COUNTRY ACCESSORIES
CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
