Exhibit 10.48
PROMISSORY NOTE
References in the boxes above are
for Lender’s use only and do not limit the applicability of
this document to any particular loan or item. Any item above
containing ‘ I I - has been omitted due to text
length limitations .
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Borrower:
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ADA-ES,
INC.
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tender:
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COLORADO
BUSINESS BANK
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8100 SOUTHPARK
WY UNIT 82
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NORTHEAST
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LITTLETON, CO
80120
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4695 QUEBEC
ST.
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DENVER, CO
80216
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Principal
Amount: 84,000,000.00
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Date of Note: August 15,
2008
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PROMISE TO PAY. ADA-ES, INC.
1”Borrower’) promises to pay to COLORADO BUSINESS BANK
(‘Lender”), or order, in lawful money of the United
States of America, on demand, the principal amount of Four
Million & 001100 Dollars ($4,000,000.00) or so much as may
be outstanding, together with Interest on the unpaid outstanding
principal balance of each advance. Interest shall be calculated
from the date of each advance until repayment of each
advance.
PAYMENT. Borrower will pay this loan
in full immediately upon Lender’s demand. Unless otherwise
agreed or required by applicable law, payments will be applied
first to any accrued unpaid Interest; then to principal; and then
to any unpaid collection costs. Borrower will pay Lender at
Lender’s address shown above or at such other place as Lender
may designate in writing.
VARIABLE INTEREST RATE. The interest
rate on this Note Is subject to change from time to time based on
changes In an index which is the WALL STREET JOURNAL PRIME RATE
(the ‘Index’). Lender will tell Borrower the current
Index rate upon Borrower’s request. The interest rate change
will not occur more often than each DAY. Borrower understands that
Lender may make loans based on other rates as well. The Index
currently is 5.000% per annum. The interest rate to be applied
to the unpaid principal balance of this Note will be calculated as
described in the ‘INTEREST CALCULATION METHOD”
paragraph using a rate equal to the Index, resulting in an initial
rate of 5.000% per annum based on a year of 360 days. NOTICE:
Under no circumstances will the Interest rate on this Note be more
than the maximum rate allowed by applicable law.
INTEREST CALCULATION METHOD.
Interest on this Note is computed on a 365/360 basis: that is. by
applying the ratio of the Interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance 1s outstanding. AR
interest payable under this Note Is computed using this
method.
INTEREST AFTER DEFAULT. Upon
default, including failure to pay upon final maturity, the interest
rate on this Note shall be increased by adding a 5.000 percentage
point margin (“Default Rate Margin’). The Default Rate
Margin shall also apply to each succeeding interest rate change
that would have applied had there been no default. However, in no
event will the interest rate exceed the maximum Interest rate
limitations under applicable law.
LENDER’S RIGHTS. Upon
Lender’s demand, Lender may declare the entire unpaid
principal balance under this Note and all accrued unpaid interest
immediately due, and then Borrower will pay that amount.
ATTORNEYS’ FEES; EXPENSES.
Lender may hire or pay someone else to help collect this Note If
Borrower does not pay. Borrower will pay Lender the reasonable
costs of such collection. This includes, subject to any limits
under applicable law, Lender’s attorneys’ fees and
Lender’s legal expenses, whether or not there is a lawsuit,
including without limitation attorneys’ fees and legal
expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or Injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower
hereby waive the right to any jury trial in any action. proceeding,
or counterclaim brought by either Lander or Borrower against the
other.
GOVERNING LAW. This Note will be
governed by federal law applicable to Lander and, to the extent not
preempted by federal law, the laws of the State of Colorado without
regard to Its conflicts of law provisions. This Note has been
accepted by Lender in the State of Colorado.
DISHONORED ITEM FEE. Borrower will
pay a fee to Lender of $25.00 If Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF, To the extant
permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking,
savings, or some other account). This Includes all accounts
Borrower holds jointly with someone else and all accounts Borrower
may open In the future. However, this does not Include any IRA or
Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge OF setoff all sums owing on
the indebtedness against any and all such accounts,
LINE OF CREDIT. This Note evidences
a straight line of credit. Once the total amount of principal has
been advanced, Borrower Is not entitled to further loan advances.
Advances under this Note, as well as directions for payment from
Borrower’s accounts, may be requested orally or In writing by
Borrower or by an authorized person. Lender may, but need not,
require that all oral requests be confirmed In writing. Borrower
agrees to be liable for all sums either: (A) advanced in
accordance with the instructions of an authorized person or (B)
credited to any of Borrower’s accounts with Lender. The
unpaid principal balance owing on this Note at any time may be
evidenced by endorsements on this Note or by Lender’s
internal records, including daily computer print-outs.
ADDITIONAL PROVISION. THIS
PROMISSORY NOTE IS MADE IN CONJUNCTION WITH LETTER OF CREDIT
NO.
1436, OR AS MAY BE
AMENDED, EXTENDED OR RENEWED.
SUCCESSOR INTERESTS. The terms of
this Note shall be binding upon Borrower, and upon Borrower’s
heirs, personal representatives, successors and assigns, and shall
inure to the benefit of Lender and its successors and
assigns.
NOTIFY US OF INACCURATE INFORMATION
WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us If we
report any Inaccurate information about your account(s) to a
consumer reporting agency. Your written notice describing the
specific ineccurecy(ies) should be sent to us at the following
address: COLORADO BUSINESS BANK ATTN: LOAN OPERATIONS 821 17TH
STREET DENVER, CO 80202.
GENERAL PROVISIONS. If any part of
this Note cannot be enforced, this fact will not affect the rest of
the Note. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any
other person who signs, guarantees or endorses this Note, to the
extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Note, and
unless otherwise expressly stated in writing, no party who signs
this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree
that Lender may renew or extend (repeatedly and for any length of
time) this loan or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender’s security
Interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All
such parties also agree that Lender may modify this loan without
the consent of or notice to anyone other than the party with whom
the modification is made. The obligations under this Note are joint
and several.
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Loan No:
582956
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PROMISSORY NOTE
(Continued)
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PRIOR TO SIGNING THIS NOTE, BORROWER
READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE
VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF
THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THIS PROMISSORY NOTE.
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BORROWER:
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ADA-ES,
INC.
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By:
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/s/ Mark H.
McKinnies
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MARK H.
McKINNIES, Chief Financial Officer of ADA-ES, INC.
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CHANGE IN TERMS AGREEMENT
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Loan Date
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Maturity
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Loan No
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call i con
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Account
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Officer
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Initials
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$
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6,600.000.00
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08-22-2008
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582956
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106
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Any item above containing
“•’ •” has been omitted due to text
length limitations.
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Borrower:
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ADA-ES,
INC.
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Lender:
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COLORADO
BUSINESS BANK
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8100 SOUTHPARK
WY., UNIT B2
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NORTHEAST
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LITTLETON, CO
80120
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4695 QUEBEC
ST.
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DENVER, CO
80216
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Principal
Amount: $6,600,000.00
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Date of Agreement: August 22,
2008
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$4,000,000.00 WITH AN ORIGINAL
MATURITY DATE OF PURE DEMAND AND INCLUDING ANY AND ALL SUBSEQUENT
EXTENSIONS OR MODIFICATIONS THEREFROM.
DESCRIPTION OF CHANGE IN TERMS. THE
MATURITY DATE WILL REMAIN PURE DEMAND. THE PURPOSE OF THIS CHANGE
IN TERMS IS TO HEREBY INCREASE THE PRINCIPAL AMOUNT FROM
$4,000,000.00 TO $6,600,000.00. ALL OTHER TERMS AND CONDITIONS WILL
REMAIN THE SAME.
PROMISE TO PAY. ADA-ES, INC.
(“Borrower”) promises to pay to COLORADO BUSINESS BANK
(“Lender”), or order. In lawful money of the United
States of America, on demand, the principal amount of Six Million
Six Hundred Thousand & 00/100 Dollars 1$6,600,000.00) or
so much as may be outstanding, together with interest on the unpaid
outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each
advance.
PAYMENT. Borrower will pay this loan
in full immediately upon Lender’s demand. Unless otherwise
agreed or required by applicable law, payments will be applied
first to any accrued unpaid interest; then to principal; and then
to any unpaid collection costs. Borrower will pay Lender at
Lender’s address shown above or at such other place as Lender
may designate in writing.
VARIABLE INTEREST RATE. The interest
rate on this loan is subject to change from time to time based on
changes in an index which is the WALL STREET JOURNAL PRIME RATE
(the “Index”). Lender will tell Borrower the current
Index rate upon Borrower’s request. The interest rate change
will not occur more often than each DAY. Borrower understands that
Lender may make loans based on other rates as well. The Index
currently is 5.000% per annum. The interest rate to be applied
to the unpaid principal balance of this loan will be calculated as
described in the “INTEREST CALCULATION METHOD”
paragraph using a rate equal to the Index, resulting in an initial
rate of 5.000% per annum based on a year of 360 days. NOTICE:
Under no circumstances will the interest rate on this loan be more
than the maximum rate allowed by applicable law.
INTEREST CALCULATION METHOD.
Interest on this loan is computed on a 365/360 basis; that is, by
applying the ratio of the interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. All
Interest payable under this loan is computed using this
method.
INTEREST AFTER DEFAULT. Upon
default, including failure to pay upon final maturity, the interest
rate on this loan shall be increased by adding a 5.000 percentage
point margin (“Default Rate Margin”). The Default Rate
Margin shall also apply to each succeeding interest rate change
that would have applied had there been no default. However, in no
event will the interest rate exceed the maximum interest rate
limitations under applicable law.
LENDER’S RIGHTS. Upon
Lender’s demand, Lender may declare the entire unpaid
principal balance under this Agreement and all accrued unpaid
interest immediately due, and then Borrower will pay that
amount.
ATTORNEYS’ FEES; EXPENSES.
Lender may hire or pay someone else to help collect this Agreement
if Borrower does not pay. Borrower will pay Lender the reasonable
costs of such collection. This includes, subject to any limits
under applicable law, Lender’s attorneys’ fees and
Lender’s legal expenses, whether or not there is a lawsuit,
including without limitation attorneys’ fees and legal
expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court
costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower
hereby waive the right to any jury trial in any action, proceeding,
or counterclaim brought by either Lender or Borrower against the
other.
GOVERNING LAW. This Agreement will
be governed by federal law applicable to Lender and, to the extent
not preempted by federal law, the laws of the State of Colorado
without regard to its conflicts of law provisions. This Agreement
has been accepted by Lender in the State of Colorado.
DISHONORED ITEM FEE. Borrower will
pay a fee to Lender of $25.00 if Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent
permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking,
savings, or some other account). This includes all accounts
Borrower holds jointly with someone else and all accounts Borrower
may open in the future. However, this does not include any IRA or
Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on
the debt against any and all such accounts.
LINE OF CREDIT. This Agreement
evidences a straight line of credit. Once the total amount of
principal has been advanced, Borrower is not entitled to further
loan advances. Advances under this Agreement, as well as directions
for payment from Borrower’s accounts, may be requested orally
or in writing by Borrower or by an authorized person. Lender may,
but need not, require that all oral requests be confirmed in
writing. Borrower agrees to be liable for all sums either:
(A) advanced in accordance with the instructions of an
authorized person or (B) credited to any of Borrower’s
accounts with Lender. The unpaid principal balance owing on this
Agreement at any time may be evidenced by endorsements on this
Agreement or by Lender’s internal records, including daily
computer print-outs.
CONTINUING VALIDITY. Except as
expressly changed by this Agreement, the terms of the original
obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and in full force and
effect. Consent by Lender to this Agreement does not waive
Lender’s right to strict performance of the obligation(s) as
changed, nor obligate Lender to make any future change in terms.
Nothing in this Agreement will constitute a satisfaction of the
obligation(s). It is the intention of Lender to retain as liable
parties all makers and endorsers of the original obligationls),
including accommodation parties, unless a party is expressly
released by Lender in writing. Any maker or endorser, including
accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does
not sign this Agreement below, then all persons signing below
acknowledge that this Agreement is given conditionally, based on
the representation to Lender that the non-signing party consents to
the changes and provisions of this Agreement or otherwise will not
be released by it. This waiver applies not only to any initial
extension, modification or release, but also to all such subsequent
actions.
ADDITIONAL PROVISION. THIS CHANGE IN
TERMS AGREEMENT IS MADE IN CONJUNCTION WITH LETTER OF CREDIT NO.
1436, OR AS MAY BE AMENDED, EXTENDED OR RENEWED.
SUCCESSORS AND ASSIGNS. Subject to
any limitations stated in this Agreement on transfer of
Borrower’s interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
If ownership of the Collateral becomes vested in a person other
than Borrower, Lender, without notice to Borrower, may deal with
Borrower’s successors with reference to this Agreement and
the Indebtedness by way of forbearance or extension without
releasing Borrower from the obligations of this Agreement or
liability under the Indebtedness.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO
CONSUMER REPORTING AGENCIES. Please notify us if we report any
inaccurate information about your accountlsi to a consumer
reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address:
COLORADO BUSINESS BANK ATTN: LOAN OPERATIONS 821 17TH STREET
DENVER, CO 80202.
MISCELLANEOUS PROVISIONS. If any
part of this Agreement cannot be enforced, this fact will not
affect the rest of the Agreement. Lender may delay or forgo
enforcing any of its rights or remedies under this Agreement
without losing them. Borrower and any other person who signs,
guarantees or endorses this Agreement, to the extent allowed by
law, waive presentment, demand for payment, and notice of dishonor.
Upon any change in the terms of this Agreement, and unless
otherwise expressly stated in writing, no party who signs this
Agreement, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree
that Lender may renew or extend
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Loan No:
582956
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CHANGE IN TERMS AGREEMENT
(Continued)
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parties also agree that Lender may
modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made. The obligations
under this Agreement are joint and several.
PRIOR TO SIGNING THIS AGREEMENT,
BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT,
INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE AGREEMENT.
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BORROWER:
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ADA-ES,
INC.
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By:
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/s/ Richard
Schlager
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RICHARD
SCHLAGER, Vice President of ADA-ES, INC.
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ASSIGNMENT OF DEPOSIT ACCOUNT
References in the boxes above are
for Lender’s use only and do not limit the applicability of
this document to any particular loan or Item.
Any item above containing “
• •” h as been o mitted due to text length
limitations.
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Borrower:
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ADA-ES,
INC.
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Lender:
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COLORADO
BUSINESS BANK
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8100 SOUTHPARK
WY., UNIT B2
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NORTHEAST
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LITTLETON, CO
80120
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4695 QUEBEC
ST.
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DENVER, CO
80216
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Grantor;
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ADA
ENVIRONMENTAL SOLUTIONS LLC
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8100 SOUTHPARK WY., UNIT 82
LITTLETON, CO 80120
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THIS ASSIGNMENT OF DEPOSIT ACCOUNT
dated August 15, 2008, Is tried* and executed among ADA
ENVIRONMENTAL SOLUTIONS LLC (“Grantor”); ADA-ES, INC.
(“Borrower”); and COLORADO BUSINESS BANK
(“Lender”).
ASSIGNMENT. For valuable
consideration, Grantor assigns and grants to Lender a security
Interest in the Collateral, including without limitation the
deposit accounts described below, to secure the Indebtedness and
agrees that Lender shall have the rights stated in this Agreement
with respect to the Collateral, in addition to all other rights
which tender may have by law.
COLLATERAL DESCRIPTION. The word
‘Collateral’ means the following described deposit
account [‘Account”):
COLORADO BUSINESS BANK MONEY MARKET
ACCOUNT NO. 7100701 with Lender with an approximate balance of
$4,086,595.49
together with (A) all interest,
whether now accrued or hereafter accruing; (B) all additional
deposits hereafter made to the Account; (C) any and all
proceeds from the Account; and (D) all renewals, replacements
and substitutions for any of the foregoing.
In addition, the word
“Collateral’ includes all of Grantor’s property
(however owned if owned by more that one person or entity), In
Lender’s possession (or in the possession of a third party
subject to Lander’