Exhibit 10.30
AGREEMENT TO MAKE SECURED LOAN
Agreement made January 31, 2002 between Featherlite, Inc., of Highways 63 & 9
P.O. Box 320 Cresco, IA 52136, a Minnesota corporation, in this agreement
referred to as Debtor, and Bulk Resources, Inc., of P.O. Box 50401 Henderson, NV
89106, a Nevada corporation, in this agreement referred to as secured party.
In consideration of the mutual covenants and promises in this agreement
contained, debtor and secured party agree:
SECTION ONE: Agreement For Loan; Terms
1.1. Secured party shall loan to debtor and debtor shall borrow from
secured party, on or before January 31, 2002, the sum of One Million Five
Hundred Thousand Dollars ($1,500,000). At the time the loan is made, debtor
shall execute, as evidence of the indebtedness hereunder, a Convertible
Promissory Note in a form similar to that attached to this agreement as Exhibit
A and made a part hereof by this reference. Such loan shall be subject to the
terms and conditions of this agreement and that certain Subordination Agreement
dated the date hereof by and between secured party and U.S. Bank National
Association, formerly known as Firstar Bank, N.A. ("U.S. Bank") (the
"Subordination Agreement").
1.2. Debtor shall issue to secured party 150,000 stock warrants
convertible to common stock at Two Dollars ($2.00) per share for the fee to
secured party to make this loan. The stock warrants must be issued to secured
party by the maturity date of the loan. If the secured party exercises any or
all of the warrants within the next five years, the debtor will file a
registration statement on Form S-3 within ninety days after the warrant is
exercised.
1.3. The indebtedness evidenced by the note shall be repaid by April
30, 2002 ("maturity date"), when the entire unpaid balance of principal and
interest shall be due and payable. In addition to the above required payment on
principal, debtor shall accrue interest on the unpaid principal balance of the
note outstanding at a rate of six and one half percent (6.5%). Interest shall be
computed on a daily basis using a year of 360 days.
1.4. The secured party upon the maturity date of the note, solely at
its option can chose to convert the note principle plus accrued interest into
common shares of stock in the debtor at Three Dollars ($3.00) per share. If the
secured party elects this option the debtor will file a registration statement
on Form S-3 for such stock within ninety days of the secured party's election
1.5. The debtor can request the secured party to convert the note
principle plus accrued interest into common shares of stock of the debtor for
Two Dollars ($2.00) per share. If the secured party at its sole option agrees to
this conversion the common stock, the debtor must file a registration statement
of Form S-3 for such stock within ninety days of the conversion
1.6. Subject to the terms and conditions of the Subordination
Agreement, the proceeds from the income tax refunds from the 2001 Federal income
tax return and amended returns for 1999 and 2000 when received by debtor and the
first security interest of U.S. Bank is satisfied from said proceeds, the
secured party at its sole discretion can demand the balance of said proceeds be
paid to secured party and applied to first the accrued interest and then to the
principle balance of loan.
1.7. The indebtedness may be prepaid at any time in whole or in part
without premium or penalty.
SECTION TWO: Security
As security for all indebtedness of debtor to secured party hereunder and
pursuant to the note as in this agreement provided, debtor shall execute and
deliver to secured party prior to or simultaneously with the initial making of
the loan hereunder, in a form satisfactory to secured party and supported by,
appropriate resolution authorizing the same, the following:
A. The following security agreements to be executed in accordance with
Article 9 of the Uniform Commercial Code in effect in Howard County, Iowa (the
"UCC").
(1) A security agreement pertaining to 2001 Federal income tax
returns and carryback income tax returns to tax years 1999 and 2000 in
a form satisfactory to secured party, granting to secured party a
second priority secured interest in all Federal income tax refunds in
the same manner and detail as the first secured party U.S. Bank. Debtor
represents that such refunds are currently estimated to be
approximately Two Million Six Hundred Thousand Dollars ($2,600,000) and
that said refund is estimated to be received by debtor on or about
March 15, 2002. Debtor also warrants that the first security interest
of US Bank will not exceed 60% of the total Federal income tax refund.
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(2) A security agreement pertaining to the real property owned
by debtor located in Cresco, Iowa granting to secured party a second
mortgage in the property subordinated in all respects to the first
mortgage of U.S. Bank. Secured party will release security of the
second mortgage when said mortgage is replaced with secured interest in
real property owned by the debtor located in the City of Stanford,
Seminole County, Florida.
(3) A future security agreement pertaining to the real
property owned by debtor located in the City of Sanford, Seminole
County, Florida, granting to secured party a second mortgage in the
property subordinated in all respects to the first mortgage. Debtor
represents that this property is expected to be refinanced with
SunTrust Bank of Florida with its expected sale of the Motorcoach
division. Debtor further represents that the appraised value of the
property is approximately Six Million One Hundred Thousand Dollars
($6,100,000) and that the first mortgage is expected to be 65% of the
appraised value. Secured party at the closing of this transaction will
replace the collateral in Sections Two A(1) and A(2) above with this
second mortgage as collateral for the full amount of the loan or for
the balance of the loan if the secured party has used the proceeds of
the Federal income tax refunds as referenced in Section One 1.6.
SECTION THREE: Representations and Warranties of Debtor
3.1. Debtor represents and warrants as follows, such representations
and warranties to be deemed continuing representations and warranties during the
entire term of this agreement:
(a) This agreement, the security agreements and other
documents and instruments required hereunder, and the note provided for
in this agreement, when issued and delivered, will all be valid and
binding in accordance with their terms. Debtor is a corporation duly
organized and existing and in good standing under the laws of Minnesota
, having its principal place of business at Highways 63 & 9 Cresco, IA
52136. Execution, delivery and performance of this agreement, the
security agreements and other documents and instruments required
hereunder, and the issuance of the note provided for in this agreement
are within its corporate powers, have been duly authorized, and are not
in contravention of law or the terms of the articles of incorporation
or bylaws of debtor, and do not require the consent or approval of any
governmental body, agency, or authority.
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(b) Except for the defaults on debt facilities with U.S. Bank
and Deutsche Financial Services Corporation as described in Item 3 of
the September 30, 2001 Quarterly on Form 10-Q report, the execution,
delivery and performance of this agreement, the security agreements and
other documents and instruments required hereunder, and the issuance of
the note required in this agreement is not in contravention of the
unwaived terms of any indenture, agreement or undertaking to which
debtor is a party or by which debtor is bound.
(c) No litigation or other proceeding before any court or
administrative agency is pending, or to the knowledge of the officers
of debtor, is threatened against debtor, the outcome of which could
materially impair the financial condition of debtor or the ability of
debtor to carry on business.
(d) The financial and other information included in the Form
10-Q Quarterly Report for the quarterly period ended September 30,
2001, previously furnished secured party, is complete and correct and
fairly presents the financial condition of debtor. Since the date of
such balance sheet, there has been no material adverse change in the
financial condition of debtor except as may be recorded in connection
with providing for the disposition of the Motorcoach Division. To the
knowledge of the officers of debtor, debtor has no contingent
obligations, including any liability for taxes, not disclosed by or
reserved against in such balance sheet and, at the time of execution of
this agreement, there are no material unrealized or anticipated losses
from any known commitment of debtor.
SECTION FOUR: Affirmative Covenants of Debtor
Debtor covenants and agrees that debtor will so long as any indebtedness remains
outstanding under this agreement:
4.1. Furnish secured party with the following:
(a) Within thirty days of the end of each month a balance
sheet, statement of profit and loss and statement of cash flows.
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(b) Provide secured party a copy of 2001 Federal income tax
return and amended returns for 1999 and 2000 as soon as returns are
filed with the Internal Revenue Service as referenced in SECTION TWO.
(c) Such information as is required by the terms and
conditions of the security agreements or other documents or instruments
of security referred to in this agreement.
(d) If in default, promptly, and in a form satisfactory to
secured party, such other information as secured party may request.
4.2. Pay and discharge all taxes and other governmental charges, and
all contractual obligations requiring the payment of money, before such become
overdue, unless and to the extent only that such payment is being contested in
good faith.
4.3. Maintain insurance coverage on the physical assets of debtor and
against other business risks in such amounts and of such types as are
customarily carried by companies similar in size and nature to that of debtor,
and in the event of acquisition of additional property, real or personal, or of
incurring additional risks of any nature, increase such insurance coverage in
such manner and to such extent as prudent business judgment and present practice
dictate. In the case of all policies of insurance covering property mortgaged or
pledged to secured party or property in which secured party shall have a
security interest of any kind whatsoever, other than those policies of insurance
protecting against casualty liabilities to strangers, all such policies of
insurance shall provide that the loss payable thereunder shall be payable to
secured party and debtor as their respective interests may appear (as permitted
by senior lender, as applicable). All such policies of insurance or copies
thereof, including all endorsements thereon and those required hereunder, shall
be deposited with secured party (if not already deposited with senior lender, if
applicable).
4.4. If in default, permit secured party through its authorized
attorneys, accountants and representatives, to examine the books, accounts,
records, ledgers and assets of every kind and description of debtor at all
reasonable times on oral or written request of secured party.
4.5. Promptly notify secured party of any condition or event that
constitutes, or with the running of time or the giving of notice will
constitute, a default under this agreement, and promptly inform secured party of
any material adverse changes in the financial condition of debtor.
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4.6. Maintain in good standing all licenses required by Florida and
Iowa or any agency thereof, or other governmental authority that may be
necessary or required for debtor to carry on its general business objects and
purposes.
4.7. At any time on the request of secured party to execute and deliver
to secured party, in form satisfactory to secured party, such additional
documentation in respect of the indebtedness and liability of debtor to secured
party contemplated under the terms of this agreement as secured party shall deem
necessary or desirable to comply with the provisions or requirements of the UCC,
including, without limiting the generality of the foregoing, appropriate
security agreements and financing statements.
SECTION FIVE: Negative Covenants of Debtor
Debtor covenants and agrees that so long as any indebtedness remains outstanding
under this agreement that debtor will not, without the prior written consent of
secured party:
5.1. Make any material change in the general business objects or
purpose of debtor or in its corporate structure or purchase, acquire, or redeem
any of its capital stock.
5.2. With respect to 2001 Federal income tax refund and carryback
refunds from 1999 and 2000 debtor cannot receive advances from U.S. Bank in
excess of 60% of total expected refund.
5.3. Sell, lease, transfer or dispose of all, substantially all, or any
material part of the assets of debtor or enter into any merger or consolidation
except in the ordinary course of business, and except for the sale of the
Motorcoach division referred to in SECTION TWO subject to payment to secured
party as required by such section.
5.4. Guarantee, indorse or otherwise become secondarily liable for or
on the obligations of others, except by endorsement for deposit in the ordinary
course of business.
5.5. Purchase or otherwise acquire, or become obligated for the
purchase of all or substantially all of the assets or business interests of any
person, firm or corporation, or any shares of stock of any corporation, trust or
association, or in any other manner effectuate or attempt to effectuate an
expansion of present business by acquisition without written approval of secured
party.
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5.6. Declare or pay any dividends to stockholders.
SECTION SIX: Default
6.1. On nonpayment, when due in accordance with the maturity date
referenced in SECTION ONE.
6.2. On occurrence of any of the following events of default, or at any
time thereafter unless such default is remedied, secured party may give notice
to debtor declaring all outstanding indebtedness hereunder to be due and
payable, whereupon all indebtedness then outstanding hereunder shall immediately
become due and payable:
(a) Default in observing or performing any of the covenants or
agreements of debtor set forth in SECTIONS FOUR and FIVE. and
continuance thereof for five days after notice to debtor of such
default by secured party
(b) Default in observing or performing any of the covenants or
agreements of debtor set forth in any collateral document of security
given to secure indebtedness hereunder, and the continuation of such
default beyond any period of grace specified in any such document.
(c) Default in the payment of any other obligation of debtor
for money loaned, or in observing or performing any covenants or
agreements given with respect thereto.
(d) Any change, for any reason whatsoever, in the management,
ownership or control of debtor that shall in the sole judgment of
secured party adversely affect future prospects for the successful
operation of debtor.
(e) If a committee of creditors is appointed for the business
of debtor; debtor makes a general assignment for the benefit of
creditors, is adjudicated bankrupt, or files a voluntary petition in
bankruptcy or for reorganization or to effect a plan or arrangement
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with creditors; debtor files an answer to a petition by creditors or
other petition filed against debtor, admitting the material allegations
thereof for an adjudication in bankruptcy or for a reorganization;
debtor applies for or permits the appointment of a receiver or trustee
or custodian for any of the property or assets of debtor; such
receiver, trustee or custodian is appointed for any of the property or
assets of debtor, otherwise than on application or consent of debtor,
and such receiver, trustee or custodian so appointed is not discharged
within three days after the date of appointment; or an order is
entered, and is not dismissed or stayed within five days from entry,
approving any petition for reorganization of debtor.
SECTION SEVEN: Remedies
On any default hereunder, and at any time thereafter, secured party shall have
the rights and remedies of a secured party under the UCC in addition to the
rights and remedies provided in this agreement or in any other instrument or
paper executed by debtor.
SECTION EIGHT: Waiver; Rights of Secured Party Cumulative
No delay or failure of secured party in exercising any right, power or privilege
hereunder shall affect such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other power, right or privilege. The rights of secured party under this
agreement are cumulative and not exclusive of any right or remedy that secured
party would otherwise have.
SECTION NINE: Notice
All notices to secured party with respect to this agreement shall be deemed to
be completed on mailing to Bulk Resources, Inc. P.O. Box 50401, Henderson, NV
89016 (by certified mail) to offices of debtor at Highways 63 & 9 P.O. Box 320
Cresco, IA 52136.
SECTION TEN: Effect of Agreement
This agreement shall become effective on the execution hereof by secured party
and debtor and shall be binding on and shall inure to the benefit of secured
party and debtor and their respective successors and assigns.
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SECTION ELEVEN: Governing Law
This agreement shall be construed in accordance with the UCC and other
applicable laws of Minnesota.
In witness whereof, the parties have executed this agreement on the day and year
first above written.
Debtor
/s/ Tracy J. Clement
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Tracy J. Clement, Executive Vice President
Secured Party
/s/ Terrance N. Taylor
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Terrance N. Taylor, President
Signature
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