FOURTH AMENDMENT TO SECURED
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECURED CREDIT AGREEMENT (" Amendment") is
made and entered into as of the 1st day of January, 2005, 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 _July _22 , 2002, Second Amendment to Secured Credit
Agreement dated as of May _30_, 2003 and the Third Amendment to Secured Credit
Agreement dated as of June _25_, 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 tenns 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 here in.
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. The second sentence appearing in Section 1.1 of the Credit
Agreement shall be amended in its entirety and as so
amended shall be restated to read as follows:
The maximum amount of Revolving Credit which the
Lender agrees to extend to Cycle Country Iowa shall
not exceed the lesser of (i) $1,000,000 ("Revolving
Credit Commitment"), or (ii) the Borrowing Base as
determined based on the most recent borrowing base
certificate.
b. The third sentence appearing in Section 1.2 of the Credit
Agreement shall be amended in its entirety and as so
amended shall be restated to read as follows:
Each advance made by the Lender of a Revolving Credit
Loan shall be made against and evidenced by the
Revolving Credit Note of the Borrowers in the form
(with appropriate insertions) attached to the Fourth
Amendment as Exhibit A (the "Revolving Credit Note")
payable to the order of the Lender in the principal
amount of the Revolving Credit Commitment.
c. The first 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 Revolving Credit Loans 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 three
quarters of one percent (0.75%) per annum; provided that the interest
rate on the Revolving Credit Loans shall not at any time: (i) except
if not paid when due, exceed ten percent (10%) per annum, or (ii) be
less than five and one-quarter percent (5.25%) per annum. If the
Revolving Credit Loans or any part thereof is not paid when due (whether
by lapse of time, acceleration or otherwise) the Revolving Credit Loans
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 ate which would otherwise be
applicable thereto from time to time; provided further, that in no event
would such rate of interest exceed nine percent (12%) per annum nor be
less than seven and one-quarter percent (7.25%) per annum.
d. Section 4.1 of the Credit Agreement is hereby amended to
add the following new definition thereto:
"Fourth Amendment" means the Fourth Amendment to
Secured Credit Agreement dated as of January 1, 2005,
by and between the Borrowers and the Lender.
e. The definition of "Revolving Credit Commitment" appearing
in Section 4.1 of the Credit Agreement shall be amended in
its entirety and as so amended shall re restated to read as
follows:
"Revolving Credit Commitment" is defined in Section
1.1 hereof.
f. The definition of "Termination Date" 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:
"Termination Date" means (i) December 31, 2006, if
such day is a Business Day, but if not then the
Business Day immediately proceeding such day, or (ii)
such earlier date on which the Revolving Credit is
terminated pursuant to Section 9 hereof.
g. Exhibit A to the Credit Agreement shall be amended in its
entirety and as so amended shall be restated to read in the
form attached to the Fourth Amendment as Exhibit A.
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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. Execution and delivery by the Borrowers of an Amended and
Restated Revolving Credit Note in a form and content
attached hereto as Exhibit A.
c. A Guarantor's Acknowledgment and Consent to this Amendment
in a form and content satisfactory to the Lender.
d. Delivery to the Lender of Resolutions adopted by each of
the Borrower's Board of Directors authorizing the
transactions contemplated by this Amendment.
4. Closing Fee. The Borrowers shall pay to the Lender a
nonrefundable closing fee of
$ 0.00
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 Fifteen Hundred Dollars
($1,500) 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.
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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.
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 Corp
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx, President
Cycle Country Accessories Corp.
By:/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx President
Bank Midwest, Minnesota Iowa, N.A.
BY/s/ Xxxx Xxxxxxx
------------------
Xxxx Xxxxxxx, Sr. Vice President
GUARANTOR'S ACKNOWLEDGEMENT AND CONSENT
Except as defined below, all capitalized terms used herein shall have
the meanings given them in that certain Secured Credit Agreement by
and between Cycle Country Accessories Corporation and Cycle Country
Accessories Corp. as Borrowers and Bank Midwest Minnesota Iowa, N.A.
as Lender, dated as of August _21_, 2001 as amended by the First
Amendment to Secured Credit Agreement dated as of _July 22 , 2002, a
Second Amendment to Secured Credit Agreement dated as of May _30_,
2003, a Third Amendment to Secured Credit Agreement dated as of June
_25 __ ,2003 and a Fourth Amendment to Secured Credit Agreement dated
as of January 1, 2005 (the "Fourth Amendment").
The undersigned have heretofore executed and delivered to the Lender a
Guaranty Agreement. The undersigned hereby consents to the Fourth
Amendment to the Secured Credit Agreement and confirms that the
Guaranty Agreement executed and delivered by it and all of the
undersigned's obligations there under remain in full force and effect
and, without limiting the foregoing, the undersigned acknowledges and
agrees that notwithstanding the execution and delivery of the Fourth
Amendment, the Guaranty Agreement executed and delivered by the
undersigned to the Lender remains in full force and effect and the
rights and remedies of the Lender, the obligations by the undersigned
there under remain in full force and effect and shall not be effected,
impaired or discharged by reason of the Fourth Amendment. The
undersigned further agrees that the consent of the undersigned to any
further amendments to the Secured Credit Agreement shall not be
required as a result of this consent having been obtained.
CYCLE COUNTRY ACCESSORIES SUBSIDIARY CORP.
By:
Title:
$1,000,000
AMENDED AND RESTATED REVOLVING CREDIT NOTE
January 1, 2005
For value received, the undersigned, Cycle Country Accessories
Corporation, an Iowa corporation, and Cycle Country Accessories Corp.,
a Nevada 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 (i) One Million
Dollars ($1,000,000) or (ii) such lesser amount as shall constitute
the aggregate unpaid principal amount of all Revolving Credit Loans
owing from the Borrowers to the Lender under the Revolving Credit
provided for in the Credit Agreement hereinafter mentioned.
The entire principal balance of this Note shall be due and
payable on the Termination Date; provided that if (i) the principal
balance of this Note at any time exceeds the Borrowing Base, the
Borrowers shall immediately, without notice or demand, pay the
principal amount necessary so that the principal balance does not
exceed the Borrowing Base, and (ii) if the principal balance of this
Note at any time exceeds the Revolving Credit Commitment then in
effect, the Borrowers shall immediately, without notice or demand, pay
the principal amount necessary so that the principal balance does not
exceed the Revolving Credit Commitment then in effect.
This Note evidences Revolving Credit Loans made and to be made to
Cycle Country Accessories Corporation by the Lender under the
Revolving Credit provided for under that certain Secured Credit
Agreement dated August _21_, 2001, by and between the Borrowers and
Lender, as amended by a First Amendment to Credit Agreement dated as
of_July 22 __ , 2002, a Second Amendment to Secured Credit Agreement
dated as of May _30_,2003, a Third Amendment to Secured Credit
Agreement dated as of June _25_, 2003 and a Fourth Amendment to
Secured Credit Agreement dated as of this same date (as so amended,
and as may be further amended, restated or otherwise modified from
time to time, the "Credit Agreement"), and the Borrowers hereby
jointly and severally promise to pay principal and interest payments
at the office specified above on the Revolving Credit Loans 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.
Each Revolving Credit Loan made under the Revolving Credit
provided for in the Credit Agreement by the Lender to Cycle Country
Accessories Corporation against 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 the 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 and any other notices.
This Note amends and restates in its entirety that certain
Amended and Restated Revolving Credit Note dated July _22_,2002 made
by the Borrowers, payable to the order of Lender, and is not a
novation thereof.
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, President
CYCLE COUNTRY ACCESSORIES CORPORATION
BY. /s/ Xxxxxx X. Xxxxxxx, President
