Exhibit 10.33
Revolving Business Note
RECONDITIONED SYSTEMS, INC. July 31, 2001 $1,000,000.00
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Customer Date Credit Limit
The undersigned ("Customer", whether one or more) promises to pay to the order
of M&I MARSHALL & ILSLEY BANK ("Lender") at 770 N. WATER STREET MILWAUKEE, WI
53202, the principal sum of $1,000,000.00 or, if less, the aggregate unpaid
principal amount of all loans made under this Note, plus interest, as set forth
below.
Lender will disburse loan proceeds to Customer's deposit account number
________________________ or by other means acceptable to Lender.
Interest is payable on August 31, 2001, and on the same date of each
CONSECUTIVE month thereafter and at maturity.
Principal is payable July 31, 2002 .
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This Note bears interest on the unpaid principal balance before maturity at a
rate equal to [Complete (a) or (b); only one shall apply]:
(a) N/A % per year.
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(b) -0- percentage points in excess of the prime rate of interest
adopted by Lender as its base rate for interest rate
determinations from time to time which may or may not be the
lowest rate charged by Lender (with the rate changing as and when
that prime rate changes). The initial rate is 6.75 % per year.
Interest is computed on the basis of a 360 day year on the actual number of days
principal is unpaid. Unpaid principal and interest bear interest after maturity
(whether by acceleration or lapse of time) until paid at the rate otherwise
applicable plus 3 percentage points computed on the same basis.
If any payment is not paid when due, if a default occurs under another
obligation of any Customer to Lender or if Lender deems itself insecure, the
unpaid balance shall, at the option of Lender, and without notice mature and
become immediately payable. The unpaid balance shall automatically mature and
become immediately payable in the event any Customer, surety, or guarantor
becomes the subject of bankruptcy or other insolvency proceedings. Lender's
receipt of any payment on this Note after the occurrence of an event of default
shall not constitute a waiver of the default or Lender's rights and remedies
upon such default.
The acceptance of this Note, the making of any loan, or any other action of
Lender does not constitute an obligation of commitment of Lender to make loans;
and any loans may be made solely in the discretion of Lender. This Note may be
prepaid in full or in part without penalty.
Lender is authorized to automatically charge payments due under this Note to
account number N/A at
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N/A .
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This Note includes additional provisions on reverse side.
RECONDITIONED SYSTEMS, INC. (SEAL) 444 W FAIRMONT
BY: /S/ Dirk D. Anderson ) TEMPE, AZ 85282
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DIRK D. ANDERSON, PRESIDENT & CEO
ADDITIONAL PROVISIONS
This Note is secured by all existing and future security agreements,
assignments, deeds of trust, and mortgages between Lender and Customer, between
Lender and any guarantor of this Note, and between Lender and any other person
providing collateral security for Customer's obligations, and payment may be
accelerated according to any of them. Unless a lien would be prohibited by law
or would render a nontaxable account taxable, Customer grants to Lender a
security interest and lien in any deposit account Customer may at any time have
with Lender. Lender may, at any time after an occurrence of an event of default,
without notice or demand, setoff against any deposit balances or other money now
or hereafter owed any Customer by Lender any amount unpaid under this Note.
Lender is authorized to make book entries evidencing loans and payments and the
aggregate of all loans as evidenced by those entries is presumptive evidence
that those amounts are outstanding and unpaid to Lender. Customer covenants that
all loans shall be used solely for business and not personal purposes.
Customer agrees to pay all costs of administration and collection before and
after judgment, including reasonable attorneys' fees (including those incurred
in successful defense or settlement of any counterclaim brought by Customer or
incident to any action or proceeding involving Customer brought pursuant to the
United States Bankruptcy Code), provided, however, that if Arizona law is
applicable to this Agreement and if the Credit Limit is $10,000 or less,
Customer agrees to pay court costs, expenses and reasonable attorneys' fees if
the Loans under this Note are referred for collection to an attorney other than
a salaried employee of Lender. Customer waives presentment, protest, demand and
notice of dishonor. To the extent permitted by law, Customer agrees to indemnify
and hold harmless Lender, its directors, officers, employees and agents, from
and against any and all claims, damages, judgments, penalties, and expenses,
including reasonable attorneys' fees, arising directly or indirectly from credit
extended under this Note or the activities of Customer. This indemnity shall
survive payment of this Note.
Customer acknowledges that Lender has not made any representations or warranties
with respect to, and that Lender does not assume any responsibility to Customer
for, the collectability or enforceability of this Note or the financial
condition of any Customer. Customer authorizes Lender to disclose financial and
other information about Customer to others. Each Customer has independently
determined the collectability and enforceability of this Note.
Without affecting the liability of any Customer, surety, or guarantor, Lender
may, without notice, accept partial payments, release or impair any collateral
security for the payment of this Note or agree not to sue any party liable on
it. Without affecting the liability of any surety or guarantor, Lender may from
time to time, without notice, renew or extend the time for payment. The
obligations of all Customers under this Note are joint and several.
To the extent not prohibited by law, Customer consents that venue for any legal
proceeding relating to collection of this Note shall be, at Lender's option, the
county in which Lender has its principal office in this state, the county in
which any Customer resides or the county in which this Note was executed. This
Note shall be construed and enforced in accordance with the state in which your
bank is chartered or has its main office.
This Note is intended by Customer and Lender as a final expression of this Note
and as a complete and exclusive statement of its terms, there being no
conditions to the enforceability of this Note. This Note may not be supplemented
or modified except in writing.
PREAUTHORIZED TRANSFER DISCLOSURE
When Customer authorizes Lender to obtain payment of amounts becoming due Lender
by initiating charges to Customer's account, Customer also requests and
authorizes remitting financial institution to alert and honor same and to charge
same to Customer's account. This authorization will remain in effect until
Customer notifies Lender and the remitting financial institution in writing to
terminate this authorization and Lender and remitting financial institution have
a reasonable time to act on the termination. NOTICE OF TRANSFERS VARYING IN
AMOUNT: If Lender and remitting financial institution are not the same, Customer
is an individual, the account was established primarily for personal, family or
household purposes and the regular payments may vary in amount, Customer has the
right to receive a notice from Lender 10 days before each payment of how much
the payment will be; however, by signing this Note, Customer elects to receive
notice only when current payment would differ by more than 100% from previous
payment.
AMENDMENT NO. 1
This is Amendment No. 1 to a Loan Agreement between Reconditioned
Systems, Inc. ("Borrower") and M&I Marshall & Ilsley Bank f/k/a M&I Thunderbird
Bank, an Arizona corporation ("Lender") dated July 31, 2000 (the "Agreement").
The Agreement is amended as follows:
1. Tangible Net Worth. This section of the Agreement is amended and restated
in its entirety to read as follows:
Tangible Net Worth. Maintain a minimum Tangible Net Worth of not less than
$2,250,000.00
2. Collateral Schedules. This section of the Agreement is amended and restated
in its entirety to read as follows:
Collateral Schedules. Concurrently with the execution and
delivery of this Agreement, Borrower shall execute and deliver
to Lender schedules of Accounts and Inventory and Eligible
Accounts and Eligible Inventory and such other matters and
information relating to the Accounts and Inventory as Lender
may request. Supplemental schedules shall be delivered
according to the following schedule: within thirty (30) days
after each third month end to include accounts receivable and
accounts payable agings and Borrower's Certification and
Reconciliation form when no usage occurs and within fifteen
(15) days after each month end to include accounts receivable
and accounts payable agings and Borrower's Certification and
Reconciliation form when usage occurs.
These are the only changes in the Agreement and all other terms and
conditions are hereby ratified and confirmed.
Dated as of July 31, 2001
M&I Marshall & Ilsley (SEAL) Reconditioned Systems, Inc. (SEAL)
By: /S/ Matthew M. McNeff By: /S/ Dirk D. Anderson
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Title: V.P. Title: President & CEO
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By: _____________________ By: __________________
Title: ____________________ Title: _________________
770 North Water Street 444 W. Fairmont
Milwaukee, Wisconsin 53202 Tempe, AZ 85282