Exhibit 10.48
SECOND AMENDMENT TO
BUSINESS LOAN AGREEMENT
This Second Amendment ("Amendment") is made as of the 25th day of
February, 2003, by and among FIRST AMERICAN BANK ("Bank") and XXXXXXXX
TECHNOLOGIES OF IOWA, INC. ("Borrower") and XXXXXXXX TECHNOLOGIES, INC.
("Guarantor") pursuant to the Business Loan Agreement dated April 4, 2002 by and
among the parties ("Agreement"). Defined terms used herein and not otherwise
defined herein shall have the meaning as set forth in the Agreement or the First
Amendment.
RECITALS:
WHEREAS, the Bank, Borrower and Guarantor previously executed the
Agreement dated April 4, 2002 for the purpose of the Borrower to acquire the
assets of the Des Moines, Iowa tire shredding operations of Utah Tire Recyclers,
Inc.;
WHEREAS, the Bank, Borrower and Guarantor previously executed a First
Amendment to the Agreement dated October 9, 2002 ("First Amendment") for the
purpose of the Borrower to facilitate the acquisition of equipment, including
installation expenses for its new tire shredding line; and
WHEREAS, the Borrower desires to combine the outstanding and unpaid
balance of the $1,185,000 Term Note with the outstanding and unpaid balance of
the Draw Note to create a $1,760,857 Term Note with a fully amortized term of
five years; and
WHEREAS, Bank is willing to combine the outstanding and unpaid balance of
the Draw Note and the outstanding and unpaid balance of the $1,185,000 Term Note
together to create a $1,760,857 Term Note to Borrower subject to the terms and
conditions hereinafter set forth; and
WHEREAS, Borrower desires to increase the Revolving Line of Credit for the
purpose of providing Borrower with short-term working capital to fund account
receivables and inventory of finished goods, and pay operating expenses; and
WHEREAS, Bank is willing to increase the Revolving Line of Credit for the
purpose of providing Borrower with short-term working capital to fund account
receivables and inventory of finished goods, and any operating expenses subject
to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
I. Loan
A. $1,760,857 Term Loan.
Subject to the terms and conditions of this Amendment, the Bank
agrees to lend to the Borrower a Term Loan in the amount of One Million Seven
Hundred Sixty Thousand Eight Hundred Fifty-seven Dollars ($1,760,857) (the
"$1,760,857 Term Loan"), under which Borrower may borrow a term loan from Bank
to be made in a single drawing on the date hereof. The Borrower shall execute a
promissory note (the "$1,760,857 Term Note") dated as of the date of this
Amendment in the principal amount of $1,760,857 to be fully amortized on a
monthly basis (principal and interest) over a five-year (60 month) period as set
forth in the $1,760,857 Term Note. Absent error, Bank's determination as to the
outstanding principal balance owed by Borrower thereunder shall be conclusive on
all parties, whomsoever and Bank's documentation to support said outstanding
principal balance will be sufficient to establish and sustain Borrower's
obligations hereunder.
B. Revolving Line of Credit.
Subject to the terms and conditions of this Amendment, the Bank
agrees to increase the Maximum Revolving Credit amount of borrowing under the
Revolving Line of Credit from Three Hundred Thousand Dollars ($300,000) to Five
Hundred Thousand Dollars ($500,000) ("Maximum Revolving Credit") for the purpose
of providing Borrower with short-term working capital to fund account
receivables and inventory of finished goods, and pay operating expenses.
Borrower may borrow, repay and re-borrow hereunder during the term of the Line
of Credit Note so long as all provisions of this Amendment are met to Bank's
satisfaction and the total unpaid principal balance which may be outstanding at
any one time does not exceed the Maximum Revolving Credit. The Borrower agrees
to immediately repay any borrowings in excess of the Maximum Revolving Credit.
Borrower shall execute a promissory note ("Line of Credit Note") dated as of the
date of this Amendment in the amount of $500,000. Interest and principal
payments shall be payable on the dates and in the manner set forth in the Line
of Credit Note. The entire outstanding balance of the Revolving Line of Credit
shall be due one year (12 months) from closing ("Maturity") with interest only
monthly payments until Maturity. Absent error, Bank's determination as to the
outstanding principal balance owed by Borrower hereunder shall be conclusive on
all parties whomsoever and Bank's documentation to support said outstanding
principal balance will be sufficient to establish and sustain Borrower's
obligation hereunder.
C. Closing Fees.
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None.
II. Definitions.
Subordinated Debt" shall mean the promissory note executed between
Borrower and Utah Tire Recyclers, Inc. dated April 1, 2002 and all amounts
due from Borrower to Guarantor (excluding the amounts due by Borrower to
Xxxxxxxx Technologies of Wisconsin, Inc. and Xxxxxxxx Technologies of
Minnesota, Inc.). The Subordinated Debt and Tangible Net Worth of Borrower
was $725,530 at September 30, 2002.
"Tangible Net Worth" shall mean that number calculated by subtracting from
the sum of the Borrower's stockholders' equity, all sums relating to
goodwill, patents, copyrights, trademarks, licenses, franchises, advances
or loans by the Borrower to any Affiliate, director or shareholder, all
intercompany transactions between Borrower and any Affiliate, or any other
asset normally considered an intangible asset under Generally Accepted
Accounting Principles (GAAP).
"Borrowing Base Formula" shall mean seventy-five percent (75%) of the
eligible accounts receivable balance plus sixty percent (60%) of the
finished goods inventory of packaged crumb rubber. Eligible account
receivables shall exclude any receivables not paid within ninety (90) days
of invoice and any Affiliate, contra (offset) or employee account
receivables.
III. Affirmative Covenants
From the date of this Amendment and thereafter until all Indebtedness of
the Borrower to the Bank is paid in full, Borrower agrees it will and
Guarantor shall cause Borrower to:
A. Minimum Tangible Net Worth and Subordinated Debt. Maintain a minimum
Tangible Net Worth and Subordinated Debt of at least $500,000.
B. Payment on $1,760,857 Term Loan. Upon sale of the used tire
shredding equipment to be replaced, as contemplated in the First
Amendment, whether in a single or several transactions, Borrower
shall immediately pay Bank the entire sale proceeds to be applied to
the $1,760,857 Term Loan in accordance with its terms and
conditions.
IV. Events of Default
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A. Cross Default. Any event of default under the Agreement or the First
Amendment shall constitute a default hereunder. Further, any event
of default under this Amendment, $1,760,857 Term Loan, $1,760,857
Term Note, Line of Credit Note or Security Documents shall
constitute a default under the Agreement and First Amendment.
V. Miscellaneous
A. Costs. Borrower shall be responsible for all "out-of-pocket" costs.
"Out-of-pocket" costs shall include UCC-1 searches and filing fees.
Out-of-pocket costs shall not exceed $250. In addition, Borrower
shall be responsible for all reasonable attorney fees and costs
incurred by Bank in the preparation and review of all loan
documents.
B. Notice. Any notice to Borrower or Guarantor shall be in writing and
addressed as follows:
Xxxx X. Xxxxx, President
XxxxxXxx Technologies of Iowa, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
C. Incorporation, Ratification. Except as modified by this Amendment,
all terms of the Agreement and First Amendment are incorporated
herein by this reference and remain the same. The Agreement and
First Amendment are hereby in all respects ratified and affirmed and
shall remain in full force and effect.
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 AMENDMENT MAY BE LEGALLY ENFORCED. YOU
MAY CHANGE THE TERMS OF THIS AMENDMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
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Borrower and Guarantor warrant that they have received a copy of this Amendment
and further state that Borrower and Guarantor understand fully the terms and
conditions described herein.
BANK: BORROWER:
FIRST AMERICAN BANK
00000 Xxxxxxxxxx Xxxxxx XXXXXXXX TECHNOLOGIES OF IOWA, INC.
X.X. Xxx 00000 0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000 Xxx Xxxxxx, XX 00000
By: By:
-------------------------------- -----------------------------
Xxxxx Xxxxxxxxxx, Vice President Xxxx X. Xxxxx, President
GUARANTOR:
XXXXXXXX TECHNOLOGIES, INC.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, XX 00000
By:
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Xxxx X. Xxxxx, Vice President
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