Exhibit 99.2
SECOND AMENDMENT TO THIRD RESTATED
REVOLVING CREDIT LOAN AGREEMENT
This Second Amendment to Third Restated Revolving Credit Loan Agreement
("Amendment") is dated July 30, 2006 ("Effective Date"), by and between AAON,
INC., an Oklahoma corporation ("AAON") and AAON COIL PRODUCTS, INC., A Texas
corporation (formerly known as CP/AAON, INC. ("CP/AAON") (separately and
collectively, the "Borrower") and BANK OF OKLAHOMA, N.A. ("Lender").
RECITALS
A. Reference is made to the Third Restated Revolving Credit Loan Agreement
dated as of July 30, 2004, by and between Borrower and Lender (as amended July
30, 2005, the "Credit Agreement"), pursuant to which currently exists a
$15,150,000 Revolving Credit Loan.
B. Borrower has requested Lender to extend the $15,150,000 Revolving Credit
Loan, and Lender has agreed to such request, subject to the terms and conditions
set forth below.
AGREEMENT
For valuable consideration received, Borrower and Lender agree to the
following:
1. Definitions. Capitalized terms used in this Amendment (including
capitalized terms used in the Recitals) that are not otherwise defined herein
shall have the respective meanings ascribed to them in the Credit Agreement.
2. Amendments to Third Restated Revolving Credit Loan Agreement.
2.1. Section 1.41 (Termination date) is hereby amended to evidence the
date "July 30, 2006" shall now mean and read "July 30, 2007."
2.2. Section 6.5 (Dividends) is hereby deleted in its entirety.
3. Conditions Precedent. The modifications to the Credit Agreement set
forth in this Amendment shall be effective from and after the Effective Date,
subject to the Borrower's satisfaction of each of the following conditions
precedent:
3.1. Loan Documents. The Borrower shall have duly and validly
authorized, executed and delivered to the Lender the following documents,
each in form and substance satisfactory to the Lender:
3.1.1. This Amendment.
3.1.2. The Revolving Credit Note, in form and content as set
forth on Schedule "3.1.2" attached to this Amendment; and
3.1.3. Any other instruments, documents or agreements reasonably
requested by Lender in connection herewith.
3.2. No Default. No Initial Default or Matured Default shall have
occurred and be continuing.
(1)
3.3. Legal Matters. All legal matters incident to this Amendment and
the transactions contemplated hereby shall be satisfactory to the Lender
and its legal counsel.
3.4. Ratification of Guaranty. Guarantor, by execution of the
ratification following the signature page hereof, hereby agrees to this
Amendment and hereby ratifies and confirms the Guaranty; and further
confirms that, after giving effect to the amendments provided for herein,
the Guaranty shall continue in full force and effect, and that each
representation and warranty set forth therein remains true and correct as
of the date hereof.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Reaffirmation. The Borrower confirms that all representations and
warranties made by it in the Credit Agreement are and will be true and
correct on the Effective Date except to the extent such representations and
warrants specifically refer to an earlier date, and all of such
representations and warranties are hereby remade and restated as the date
hereof and shall survive the execution and delivery of this Amendment. The
Borrower further confirms that all information contained in the Schedules
attached to the Credit Agreement is and will continue to be complete an
accurate as of the Effective Date.
4.2. Additional Representations and Warranties. The Borrower further
represents and warrants to the Lender that:
4.2.1. The Borrower has all power and authority and has been duly
authorized to execute, deliver and perform its obligations under this
Amendment, the Credit Agreement (as amended by this Amendment), and
the other Loan Documents.
4.2.2. This Amendment, the Credit Agreement (as amended by this
Amendment), and other Loan Documents are valid and legally binding
obligations of the Borrower, enforceable in accordance with their
respective terms, except as limited by applicable bankruptcy,
insolvency or other laws affecting the enforcement of creditors'
rights generally.
4.2.3. The execution, delivery and performance of this Amendment,
the Credit Agreement (as amended by this Amendment), and the other
Loan Documents by the Borrower do not and will not (a) conflict with,
result in a breach of the terms, conditions or provisions of,
constitute a default under, or result in any violation of the
organizational and operating agreements and documents, of the
Borrower, or any agreement, instrument, undertaking, judgment, decree,
order, writ, injunction, statute, law, rule or regulation to which
Borrower is subject or by which the assets and property of the
Borrower are bound or affected, (b) result in the creation or
imposition of any lien on any assets or property now or hereafter
owned by the Borrower pursuant to the provisions of any mortgage,
indenture, security agreement, contract, undertaking or other
agreement to which Borrower is a party, other than the obligations of
the Borrower in favor of the Lender, (c) require any authorization,
consent, license, approval or authorization of, or other action by,
notice or declaration to, registration with, any governmental agency
or authority or, to the extent any such consent or other action may be
required, it has been validly procured or duly taken, or (d) result in
the occurrence of an event materially adversely affecting the validity
or enforceability of any rights or remedies of the Lender or the
Borrower's ability to perform its obligations under the Credit
Agreement and other Loan Documents.
(2)
5. MISCELLANEOUS.
I.
5.1. Effect of Amendment. The terms of this Amendment shall be
incorporated into and form a part of the Credit Agreement. Except as
amended, modified and supplemented by this Amendment, the Credit Agreement
shall continue in full force and effect in accordance with its stated
terms, all of which are hereby reaffirmed in every respect as of the date
hereof. In the event of any irreconcilable inconsistency between the terms
of this Amendment and the terms of the Credit Agreement, the terms of this
Amendment shall control and govern, and the agreements shall be interpreted
so as to carry out and give full effect to the intent of this Amendment.
All references to the "Third Restated Revolving Credit Loan Agreement "
appearing in any of the Loan Documents shall hereafter be deemed references
to the Third Restated Revolving Credit Loan Agreement as amended, modified
and supplemented by this Amendment.
II.
5.2. Descriptive Headings. The descriptive headings of the several
paragraphs of this Amendment are inserted for convenience only and shall
not be used in the construction of the content of this Amendment.
III.
5.3. Governing Law. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the
laws of the State of Oklahoma.
IV.
5.4. Reimbursement of Expenses. The Borrower agrees to pay the
reasonable fees and out-of-pocket expenses of Riggs, Abney, Neal, Turpen,
Orbison & Xxxxx, counsel to the Lender, incurred in connection with the
preparation of this Amendment and the consummation of the transactions
contemplated hereby and thereby.
V.
5.5. Release of Lender. The Borrower hereby releases the Lender from
any and all claims, known or unknown, which may have arisen in connection
with the Credit Agreement on or prior to the Effective Date.
VI.
5.6. No Course of Dealing. This Amendment shall not establish a course
of dealing or be construed as evidence of any willingness on the Lender's
part to grant other or future amendments, should any be requested.
VII.
5.7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any
such counterpart.
VIII.
5.8. USA Patriot Act Notification. IMPORTANT INFORMATION ABOUT
PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the
funding of terrorism and money laundering activities, Federal law requires
all financial institutions to obtain, verify, and record information that
identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of
credit, or other financial services product. What this means for Borrower:
When Borrower opens an account, if Borrower is an individual, Lender will
ask for Borrower's name, taxpayer identification number, residential
address, date of birth, and other information that will allow Lender to
identify Borrower, and, if Borrower is not an individual, Lender will ask
for Borrower's name, taxpayer identification number, business address, and
other information that will allow Lender to identify Borrower. Lender may
also ask, if Borrower is an individual, to see Borrower's driver's license
or other identifying documents, and, if Borrower is not an individual, to
see borrower's legal organizational documents or other identifying
documents.
(3)
IX.
X.
XI. [SIGNATURE PAGE FOLLOWS]
(4)
"Borrower"
AAON, INC., an Oklahoma corporation
By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
AAON COIL PRODUCTS, INC., a Texas
corporation (formerly known as CP/AAON, Inc.)
By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
"Lender"
BANK OF OKLAHOMA, N.A.
By /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx, Vice President
(5)
RATIFICATION OF GUARANTY
As inducement for the Lender to enter into the Second Amendment to
Third Restated Revolving Credit Loan Agreement ("Amendment") dated effective
July 30, 2006 to which this Ratification is affixed, the undersigned Guarantor
hereby agrees to such Amendment and further hereby ratifies and confirms the
Guaranty.
AAON, INC., A Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
(6)
PROMISSORY NOTE
$15,150,000 Effective July 30, 2006
Tulsa, Oklahoma
FOR VALUE RECEIVED, the undersigned, AAON, INC., an Oklahoma corporation
and AAON COIL PRODUCTS, INC., a Texas corporation (formerly known as CP/AAON,
Inc.) (separately and collectively "Maker"), jointly and severally promise to
pay to the order of BANK OF OKLAHOMA, N.A. ("Lender"), at its offices in Tulsa,
Oklahoma, the principal sum of FIFTEEN MILLION ONE HUNDRED FIFTY THOUSAND and
no/100 DOLLARS ($15,150,000.00), or, if less, the aggregate sum of advances made
by Lender to Maker under the Third Restated Revolving Credit Agreement dated
July 30, 2004, between Maker and Lender (as amended, the "Credit Agreement"), as
follows:
a. Principal. Principal shall be payable on July 30, 2007.
b. Interest. Interest shall be payable on the last day of each month
(except for interest on LIBOR Loans which shall be payable on the last
day of the applicable Interest Period) and at maturity, commencing
July 31, 2006, based upon the type of loan and interest rate related
thereto as more specifically described in the Credit Agreement, which
terms are incorporated herein by reference.
This Note is the "Revolving Credit Note" referred to in the Credit
Agreement. Reference is made to the Credit Agreement for provisions for interest
accrual, the interest rate, the payment and prepayment hereof and for the
acceleration of the maturity hereof, all of which are incorporated herein and
made a part hereof. Terms defined in said Credit Agreement are used herein as
therein defined.
All payments under this Note shall be made in legal tender of the United
States of America or in other immediately available funds at Lender's office
described above, and no credit shall be given for any payment received by check,
draft or other instrument or item until such time as the holder hereof shall
have received credit therefor from the holder's collecting agent or, in the
event no collecting agent is used, from the bank or other financial institution
upon which said check, draft or other instrument or item is drawn.
From time to time the maturity date of this Note may be extended or this
Note may be renewed, in whole or in part, or a new note of different form may be
substituted for this Note and/or the rate of interest may be changed, or changes
may be made in consideration of loan extensions, and the holder, from time to
time, may waive or surrender, either in whole or in part, any rights,
guarantees, security interests or liens given for the benefit of the holder in
connection herewith; but no such occurrences shall in any manner affect, limit,
modify or otherwise impair any rights, guarantees or security of the holder not
specifically waived, released or surrendered in writing, nor shall any maker,
guarantor, endorser or any person who is or might be liable hereon, either
primarily or contingently, be released from such liability by reason of the
occurrence of any such event. The holder hereof, from time to time, shall have
the unlimited right to release any person who might be liable hereon; and such
release shall not affect or discharge the liability of any other person who is
or might be liable hereon.
(7)
The Maker and any endorsers, guarantors and sureties hereby severally waive
protest, presentment, demand, and notice of protest and nonpayment in case this
Note or any payment due hereunder is not paid when due; and they agree to any
renewal, extension, acceleration, postponement of the time of payment,
substitution, exchange or release of collateral and to the release of any party
or person primarily or contingently liable without prejudice to the holder and
without notice to the Maker or any endorser, guarantor or surety. Maker and any
guarantor, endorser, surety or any other person who is or may become liable
hereon will, on demand, pay all costs of collection, including reasonable
attorney fees of the holder hereof in attempting to enforce payment of this Note
and reasonable attorney fees for defending the validity of any document securing
this Note as a valid first and prior lien.
This Note is given for an actual loan of money for business purposes and
not for personal, agricultural or residential purposes, and is executed and
delivered in the State of Oklahoma and shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
This Note is an extension and renewal of the $15,150,000.00 Promissory Note
dated effective July 30, 2004 between Maker and Lender and shall be deemed
effective as of the date set forth as the date such Promissory Note would have
matured if not otherwise renewed or extended hereby.
AAON, INC., an Oklahoma corporation
By /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
AAON COIL PRODUCTS, INC.,
a Texas corporation (formerly known as
CP/AAON, Inc.)
By /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
(8)
