TWENTY FIFTH AMENDMENT TO GENERAL CREDIT AND SECURITY AGREEMENT AND WAIVER (A Fifteenth Amendment does not exist)
Exhibit 10.47
TWENTY FIFTH AMENDMENT TO
GENERAL CREDIT AND SECURITY AGREEMENT
AND WAIVER
(A Fifteenth Amendment does not exist)
THIS AGREEMENT, dated and effective as of August 11, 2009, between SPECTRUM Commercial Services Company, a Minnesota Corporation, having its mailing address and principal place of business at Xxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000 (herein called “Lender” or “SCS”), and Appliance Recycling Centers of America, Inc., a Minnesota corporation, having the mailing address and principal place of business at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, XX 00000, (herein called “Borrower”), amends that certain General Credit and Security Agreement dated August 30, 1996, (“Credit Agreement”) as amended. Where the provisions of this Agreement conflict with the Credit Agreement, the intent of this Agreement shall control.
1. Paragraph 5 entitled “Interest” is hereby deleted and replaced with the following:
Interest. Borrower agrees to pay interest on the outstanding principal amount of the Note, at the close of each day at a fluctuating rate per annum (computed on the basis of actual number of days elapsed and a year of 360 days) which is at all times equal to Three Percent (3.0%) in excess of the Prime Rate; each change in such fluctuating rate caused by a change in the Prime Rate to occur simultaneously with the change in the Prime Rate (the “Initial Rate”); provided, however, that (i) in no event shall the Initial Rate, the Adjusted Rate or the Re-adjusted rate in effect hereunder at any time be less than 6.25% per annum; (ii) interest payable hereunder with respect to each calendar month shall not be less than $58,000.00 regardless of the amount of loans, Advances or other credit extensions that actually may have been outstanding during the month, and (iii) interest shall continue to accrue hereunder until all Obligations have been paid in full.. Interest accrued through the last day of each month will be due and payable to Lender on the next Monthly Payment Date. Interest shall also be payable on the Maturity Date or on any earlier Termination Date. Interest accrued after the Maturity Date or earlier Termination Date shall be payable on Demand. Interest may be charged to Borrower’s loan account as an Advance at Lender’s option, whether or not Borrower then has the right to obtain an Advance pursuant to the terms of this Agreement.
Notwithstanding the foregoing, after an Event of Default, the Note shall bear interest until paid at 5% per annum in excess of the rate otherwise then in effect, which rate shall continue to vary based on further changes in the Prime Rate; provided, however, that after an Event of Default, (i) in no event shall the interest rate in effect under the Note at any time be less than 11.0% per annum; (ii) interest payable under the Note with respect to each calendar month shall not be less than $86,000.00 regardless of the amount of loans, Advances or other credit extensions that actually may have been outstanding during the month, and (iii) interest shall continue to accrue hereunder until all Obligations have been paid in full.. (The Initial Rate, the Adjusted Rate and the Re-adjusted Rate in effect either before or after an Event of Default is referred to herein collectively as the “Interest Rate”). The undersigned shall also pay a late fee equal to 10% of any payment under the Note that is more than 10 days past due.
2. Paragraph 17(a) is hereby deleted and replaced with the following:
(a) Furnish to Lender in form satisfactory to Lender:
(i) Within 90 days after the end of each fiscal year of Borrower, a complete audited financial report prepared and certified without qualification or explanatory language by Independent Public Accountants on a Consolidated and consolidating basis for Borrower and any Consolidated Subsidiaries of Borrower; together with a copy of the management letter or memorandum, if any, delivered by such independent certified public accountant to Borrower and Borrower’s response thereto. If Borrower shall fail to supply the report within such time limit, Lender shall have the right (but not the duty) to employ certified public accountants acceptable to Lender to prepare such report at Borrower’s expense;
(ii) Within 30 days after the end of each fiscal month, a balance sheet with operating figures as to that month, including detailed operating figures for each geographic region and division, and monthly projections for the next twelve months, certified as correct by the chief financial officer or treasurer of Borrower but subject to adjustments as to inventories or other items to which an officer of Borrower directs attention in writing, together with a reconciliation of any variances between the information provided on such balance sheet and the information for that day previously delivered to Lender pursuant to Paragraph 17(a)(iv) and 17(a)(v);
(iii) With the financial statements described in Paragraph 17(a)(i) and (ii), a compliance certificate in the form attached as Exhibit A certified as true and accurate by the chief financial officer or treasurer of Borrower;
(iv) At the end of each calendar week, an aging of accounts receivable together with a reconciliation in a form satisfactory to Lender and an aging of accounts payable in form acceptable to Lender and certified as true and accurate by an officer of Borrower;
(v) At the end of each calendar week, or more frequently as requested, an inventory certification report for all Inventory locations in form acceptable to Lender and certified as true and accurate by an officer of Borrower;
(vi) If and when filed by Borrower:
· Form 10-Q quarterly reports,
· Form 10-K annual reports, and Form 8-K current reports,
· Any other filings made by Borrower with the SEC,
· Copies of Borrower’s federal income tax returns, and any amendments thereto, filed with the Internal Revenue Service,
· Copies of Borrower’s applicable state tax returns, and any amendments thereto, filed with the respective state tax authorities, and
· Any information that is provided by Borrower to its shareholders generally; and;
(vii) From time to time, at Lender’s request, any and all other material, reports, information, or figures reasonably required by Lender.
3. As of the date hereof, Borrower will pay to SPECTRUM the sum of $10,000.00.
4. Representations and Warranties. The person signing below on behalf of Borrower represents that he or she is authorized to make the agreements set forth herein and to legally bind Borrower to this Agreement. Borrower hereby represents and warrants to SPECTRUM as follows:
The Credit Agreement, this Amendment, and each Loan Document (as amended or modified hereby) is the legal, valid and binding obligation of Borrower, enforceable against it in accordance with its terms, and is in full force and effect. No event has occurred and is continuing that constitutes an Event of Default under the Loan Documents. The representations and warranties contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date hereof and are hereby reaffirmed.
5. Counterparts; Telefacsimile Execution. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
6. Effect on Loan Documents.
a. The Credit Agreement shall be amended as set forth herein effective as of the date hereof. The Credit Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and effect in accordance with its respective terms and each are hereby ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment shall not operate as a waiver or an amendment of any right, power, or remedy of SPECTRUM under the Credit Agreement, as in effect prior to the date hereof unless expressly stated herein. The waivers, consents and modifications herein are limited to the specifics hereof, shall not apply with respect to any facts or occurrences other than those on which the same are based, shall not excuse future non-compliance with the Credit Agreement, and shall not operate as a consent to any further or other matter under the Loan Documents.
b. To the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby. To the extent that any terms or conditions of the Credit Agreement conflict with the terms or conditions of this Amendment, the terms and conditions of this Amendment, as well as the intent of this Amendment, shall control.
7. Entire Agreement. This Amendment, together with all other instruments, agreements, and certificates executed by the parties in connection herewith, embody the entire
understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings and inducements, whether express or implied, oral or written.
8. Estoppel. To induce SPECTRUM to enter into this Amendment, Borrower hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no default or Event of Default and no right of offset, defense, counterclaim or objection in favor of Borrower as against SPECTRUM with respect to the Credit Agreement, any of the Loan Documents, or any of the Obligations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
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SPECTRUM COMMERCIAL SERVICES COMPANY |
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APPLIANCE RECYCLING CENTERS OF AMERICA, INC. |
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By |
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By |
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Xxxxxx X. Xxxxxxxxx, Co-CEO |
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Xxxxxx X. Xxxxxxx, CEO |
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REAFFIRMATION
Of Xxxxxx X. Xxxxxxx
The undersigned, Xxxxxx X. “Xxxx” Xxxxxxx, hereby reaffirms all of the terms of the Support Agreement issued by him in favor of SPECTRUM Commercial Services Company (including its participants and assigns) and dated as of December 29, 2004, and acknowledges that such agreement is in full force and effect according to its terms. The undersigned understands and acknowledges that this Reaffirmation is required by SPECTRUM Commercial Services Company as a condition to the execution of the Twenty Third Amendment to the General Credit and Security Agreement between Appliance Recycling Centers of America, Inc. and SPECTRUM Commercial Services Company.
Dated as of: August 11, 2009
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Xxxxxx X. Xxxxxxx |
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