EIGHTEENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDMENT AGREEMENT
This Eighteenth Amendment to Amended and Restated Credit Agreement and
Amendment Agreement (this "Amendment" or this "Eighteenth Amendment") is entered
into effective September 10, 2003 between Bank One, NA (successor by merger to
Bank One, Michigan), with its main office in Chicago, Illinois ("Bank One"), PNC
Bank, National Association (collectively with Bank One, the "Banks"), with Bank
One as agent for the Banks (the "Agent"), Owosso Corporation, Ahab Investment
Company, DWZM, Inc., SMX Liquidation Corp., Inc., f/k/a Snowmax Incorporated,
Stature Electric, Inc. ("Stature"), Owosso Motor Group, Inc., AAC Liquidation
Corp., Inc., f/k/a Astro Air Coils, Inc. and Owosso-Delaware, Inc., f/k/a Xxxxxx
Company (collectively, the "Borrowers").
RECITALS
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This Amendment is based on the following recitals ("Recitals"), which
are incorporated into and made a part of this Amendment:
1. The Banks and the Borrowers are parties to an Amended and Restated
Credit Agreement dated as of January 22, 1999, as amended by a First Amendment
to Amended and Restated Credit Agreement dated as of June 14, 2000, a Second
Amendment to Amended and Restated Credit Agreement dated as of September 28,
2000, a Third Amendment to Amended and Restated Credit Agreement, Revolving
Credit Note, Amended and Restated Pledge Agreement and Security Agreement dated
effective as of October 29, 2000, a Fourth Amendment to Amended and Restated
Credit Agreement, Revolving Credit Notes and Security Agreement dated as of
November 30, 2000, a Fifth Amendment to Amended and Restated Credit Agreement,
Revolving Credit Notes, Amended and Restated Pledge Agreement and Security
Agreement dated January 24, 2001, an Amendment Agreement dated February 12, 2001
(as amended, and as may be further amended, the "Amendment Agreement"), a
Seventh Amendment to Amended and Restated Credit Agreement dated as of May 9,
2001, an Eighth Amendment to Amended and Restated Credit Agreement and Amendment
Agreement dated as of July 31, 2001, a Ninth Amendment to Amended and Restated
Credit Agreement and Amendment Agreement dated January 7, 2002, a Tenth
Amendment to Amended and Restated Credit Agreement and Amendment Agreement dated
February 7, 2002, an Eleventh Amendment to Amended and Restated Credit Agreement
and Amendment Agreement dated May 16, 2002, a Twelfth Amendment to Amended and
Restated Credit Agreement and Amendment Agreement as of July 8, 2002, a
Thirteenth Amendment to Amended and Restated Credit Agreement, Amendment
Agreement, Amended and Restated Pledge Agreement and Security Agreement dated
July 30, 2002, a Fourteenth Amendment to Amended and Restated Credit Agreement
and Amendment Agreement dated effective as of September 30, 2002, a Fifteenth
Amendment to Amended and Restated Credit Agreement and Amendment Agreement dated
October 27, 2002, a Sixteenth Amendment to Amended and Restated Credit Agreement
and Amendment Agreement dated December 13, 2002, a Seventeenth Amendment to
Amended and Restated Credit Agreement and Amendment Agreement (the "Seventeenth
Amendment") dated on or about April 10, 2003 (as amended, including as amended
by the Amendment Agreement, and as may be further amended, the "Loan Agreement")
and two Revolving Credit Notes dated on or about December 13, 2002 each running
in favor of one of the Banks (the "Notes") as well as various other documents
executed previously, simultaneously therewith or subsequently pursuant to or in
connection with the Loan Agreement (all of the foregoing, including the Loan
Agreement, are collectively referred to as the "Loan Documents"). Capitalized
terms used but not defined in this Eighteenth Amendment have the same meanings
as in the Amendment Agreement.
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2. Each Party acknowledges and agrees that (i) the Amendment Agreement
is in full force and effect, as amended and supplemented by the Loan Documents;
(ii) the Banks have fully performed all of their obligations under the Loan
Documents (including the Amendment Agreement); (iii) the Banks have no
obligation to continue to lend to Borrowers or to forbear from enforcing their
rights and remedies beyond the Forbearance Period (as extended by the
Seventeenth Amendment); and (iv) the Banks have made no representations of any
nature or kind that funding in any amount will continue, or that the Forbearance
Period will be extended beyond the expiration thereof.
3. Each Party represents and warrants to the Banks that it has received
direct and substantial economic benefit from all of the Obligations and that it
will continue to receive direct and substantial economic benefit from such loans
from the Agent and/or any of the Banks, and from any other loans made or which
may be made in the future to any of the Borrowers by the Agent, the Banks or any
of them.
4. Under the terms of the Seventeenth Amendment, the Parties set
various financial covenants and required reductions of the Commitments based on
Stature's projected performance for 2003. The Parties have advised the Banks
that they anticipate that they will be in default of a financial covenant as of
August 31, 2003 and will be unable to meet the September 30, 2003 stepdown in
the Commitment and therefore in default under the Amendment Agreement, the Loan
Agreement and the Loan Documents, but that they still believe that they will be
able to satisfy the Obligations in full on or before December 31, 2003. The
Parties have asked the Banks to waive the forgoing defaults on the terms and
conditions described in this Amendment.
5. Subject to the terms and conditions of this Eighteenth Amendment,
and in reliance on the Parties' agreements, acknowledgments, representations,
and warranties in this Eighteenth Amendment, the Banks have agreed to waives
certain defaults for a limited time, and forbear from enforcing their rights and
remedies on account of the Specified Defaults, the New Defaults and the
Additional Defaults under the Loan Documents and applicable law, as set forth
below.
AGREEMENT
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Based on the foregoing Recitals (which are incorporated herein as
representations, warranties, acknowledgments and agreements of the parties, as
the case may be) and for other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged by the parties hereto, Borrowers and
Banks agree as follows:
A. For the period from the date of this Amendment through the earlier
of (i) October 28, 2003 or (ii) the occurrence of a default or an Event of
Default under the Loan Documents (the "Waiver Period") the Banks waive
Borrowers' compliance with the EBITDA covenant contained in Section 7(f) of the
Amendment Agreement and the Borrowers' failure to make the $350,000 Mandatory
Reduction to the Commitments on September 30, 2003, (collectively, the "Second
Additional Defaults"). The Waiver Period may be extended or expanded by the
Banks at any time in their sole discretion by providing written notice to
Borrowers. The fact that the Banks have waived the Second Additional Defaults
during the Waiver Period is not an agreement by the Banks to waive any other
defaults or to waive the Second Additional Defaults during any other time
periods.
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B. Simultaneously with the execution of this Amendment Borrowers must
pay a $7,500 amendment fee to the Agent for the ratable benefit of the Banks,
which fee is fully earned by the Banks when they execute this Amendment.
C. From and after the date of this Amendment, references in the Loan
Documents (i) to the Loan Agreement are to be treated as referring to the Loan
Agreement, as amended by this Amendment, (ii) to the Amendment Agreement are to
be treated as referring to the Amendment Agreement, as amended by this
Amendment; and (iii) to "obligations", "Obligations" and "liabilities" are to be
treated as referring to all indebtedness and obligations referred to in this
Eighteenth Amendment or the Loan Documents.
D. Subsequent to execution and delivery of this Amendment, Borrowers
must cause to be executed and delivered to the Banks such financing statements,
resolutions and other agreements that the Banks may reasonably require to
effectuate the transactions contemplated by this Amendment. Borrowers must
continue to pay all costs and expenses (including reasonable attorneys' fees)
incurred by the Banks in accordance with the terms of the Loan Documents,
including the Amendment Agreement. Additionally, on or before September 15,
2003, the Borrowers will provide to Bank One evidence of insurance covering all
of the assets of the Borrowers naming the Agent, for the benefit of the Banks,
as lender loss payee and mortgagee payee, as appropriate, and otherwise in form
and substance acceptable to the Agent in its sole discretion.
E. Each Borrower expressly acknowledges and agrees that (i) each
Borrower, jointly, jointly and severally, and severally remains liable for any
and all obligations and indebtedness under the Loan Documents and (ii) except to
the extent heretofore released, all collateral security and security interests,
liens, pledges, and mortgages heretofore or hereafter granted the Banks
including, without limitation, such collateral, security interests, liens,
pledges, and mortgages granted under the Loan Documents, extend to and cover all
of each Borrower's obligations to the Banks, now existing or hereafter arising
including, without limitation, those arising in connection with this Amendment
and under all guaranty agreements now or in the future given by any Borrower in
either Bank's favor, each Borrower's present and future obligations to the Banks
under foreign exchange contracts, derivatives or hedging transactions, including
but not limited to interest rate, commodity, currency, or credit swaps or
options that may be provided from time to time by the Banks to the Borrowers,
all of which security interests, liens, pledges, and mortgages are ratified,
reaffirmed, confirmed and approved.
F. There are no promises or inducements which have been made to any
signatory hereto to cause such signatory to enter into this Eighteenth Amendment
other than those which are set forth in this Eighteenth Amendment.
G. Reservation of Rights.
(a) The Amendment Agreement grants a limited forbearance until the
expiration of the Forbearance Period on the terms and conditions set
forth in the Amendment Agreement (as amended by this Eighteenth
Amendment) and a limited waiver of the Second Additional Defaults
through the Waiver Period. Except as provided in the immediately
preceding sentence and notwithstanding anything to the contrary in
this Eighteenth Amendment or the Amendment Agreement, all of the
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Banks' rights and remedies with respect to the Parties are expressly
reserved. Likewise, except for the waiver of the Second Additional
Defaults during the Waiver Period, nothing herein shall be deemed to
constitute a waiver of any default existing as of the date hereof or
new Events of Default or defaults or shall in any way prejudice the
rights and remedies of the Banks under the Loan Documents (including
the Amendment Agreement) or applicable law. Further, the Banks shall
have the right to waive any conditions set forth in this Eighteenth
Amendment or the Loan Documents, in their sole discretion, and any
waiver shall not prejudice, waive or reduce any other right or
remedy which the Banks may have against the Parties or any of them.
However, the Parties agree that no waiver by the Banks of any right
or condition of this Eighteenth Amendment or the Loan Documents
shall be effective unless contained in a writing signed by an
authorized agent of the Agent or each of the Banks, as appropriate.
(b) ANYTHING CONTAINED IN THIS EIGHTEENTH AMENDMENT OR IN ANY OTHER
AGREEMENT TO THE CONTRARY NOTWITHSTANDING, NOTHING CONTAINED IN THIS
SEVENTEENTH AMENDMENT OR IN ANY OTHER AGREEMENT SHALL IN ANY WAY
RESTRICT OR PROHIBIT THE BANKS' RIGHT TO BLOCK, STOP OR PROHIBIT
PAYMENTS TO ANY SUBORDINATED CREDITOR
H. Each Borrower represents and warrants to the Banks that:
(1) (a) The execution, delivery and performance of this Amendment
by the Borrowers and all agreements and documents delivered by
Borrowers in connection with this Amendment have been duly authorized
by all necessary corporate or other organizational action and does not
and will not require any consent or approval of its stockholders or
members, violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in
effect having applicability to it or of its articles of incorporation,
articles of organization, or bylaws, or result in a breach of or
constitute a default under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which any Borrower is a
party or by which it or its properties may be bound or affected.
(b) No authorization, consent, approval, license, exemption of
or filing a registration with any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary to the valid
execution, delivery or performance by Borrowers of this Amendment
and all agreements and documents delivered in connection with this
Amendment.
(c) This Amendment and all agreements and documents delivered
by Borrowers in connection with this Amendment are the legal,
valid and binding obligations of each Borrower enforceable against
it in accordance with the terms thereof.
(2) After giving effect to the amendments contained in this
Amendment, all of the representations and warranties contained in the
Loan Documents other than those set forth in Section 4.6 thereof are
true and correct in all material respects on and as of the date hereof
with the same force and effect as if made on and as of the date hereof.
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(3) Each Borrower's interim financial statements furnished to the
Banks, which have been provided through June 30, 2003, fairly present
such Borrower's financial condition as of such dates and the results of
such Borrower's operations for the periods indicated. The Borrowers'
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis,
and since the date of the last such financial statement there has been
no material adverse change in such financial condition.
(4) Except for the Specified Defaults, the New Defaults, the
Additional Defaults, and the Second Additional Defaults, such Borrower
has duly and properly performed, complied with and observed each of its
covenants, agreements, and obligations contained in the Loan Documents.
(5) Any party executing this Eighteenth Amendment in a
representative capacity on behalf of such Borrower has the authority to
execute this Eighteenth Amendment and legally bind such Borrower.
(6) Such Borrower has not assigned any claim, set off or defense
to any individual or entity.
I. This Eighteenth Amendment and all of the Exhibits and other written
material delivered by any one or more of the Parties to the Banks in connection
with the transactions contemplated hereby do not contain any statement that is
false or misleading with respect to any material fact and do not omit to state a
material fact necessary in order to make the statements therein not false or
misleading. There is no additional fact of which any Party is aware that has not
been disclosed in writing to the Banks that materially affects adversely or, so
far as each Party can reasonably foresee, will materially affect adversely, any
Party's financial condition or business prospects.
J. The terms and provisions of this Amendment amend, add to and
constitute a part of the Loan Agreement, the Amendment Agreement and the other
Loan Documents. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Loan Agreement, the
Amendment Agreement and the other Loan Documents remain in full force and effect
and are ratified, reaffirmed, confirmed, and approved.
K. No failure or delay on the part of the Agent or either of the Banks
in the exercise of any power or right, and no course of dealing between any one
or more of the Parties and the Agent or either of the Banks, operates as a
waiver of such power or right, nor shall any single or partial exercise of any
power or right preclude other or further exercise thereof or the exercise of any
other power or right. The remedies provided for herein are cumulative and not
exclusive of any remedies which may be available to the Agent or either of the
Banks at law or in equity. No notice to or demand on any Party not required
hereunder or under the Loan Documents entitles any such Party to any other or
further notice or demand in similar or other circumstances, or waives the right
of the Agent or either of the Banks to any other or further action in any
circumstances without notice or demand. Any waiver of any provision of this
Eighteenth Amendment or the Loan Documents and any consent to any departure by
any one or more of the Parties from the terms of any provision of this
Eighteenth Amendment or the Loan Documents is effective only if in writing
signed by an authorized officer of the Agent or the Banks, as appropriate, and
only in the specific instance and for the specific purpose for which given.
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L. All agreements, representations and warranties made in this
Eighteenth Amendment (and all agreements referred to or incorporated herein)
survive the execution of this Eighteenth Amendment (and all documents and
agreements referred to or incorporated herein). Notwithstanding anything in this
Eighteenth Amendment (or any documents or agreements referred to or incorporated
herein) to the contrary, no investigation or inquiry by the Agent or the Banks
(including by their agents) with respect to any matter which is the subject of
any representation, warranty, covenant or other agreement set forth herein or
therein is intended, nor shall it be interpreted, to limit, diminish or
otherwise affect the full scope and effect of any such representation, warranty,
covenant or other agreement. All terms, covenants, agreements, representations
and warranties of each Party made herein (or in any documents or agreements
referred to or incorporated herein), or in any certificate or other document
delivered or to be delivered pursuant hereto, are deemed to be material and to
have been relied upon by the Agent and the Banks, notwithstanding any
investigation heretofore or hereafter made by the Agent or the Banks or their
agents.
M. The execution and delivery of this Eighteenth Amendment (and all
agreements and documents referred to herein) does not impair or affect any other
security (by endorsement or otherwise) for the Obligations, or any one or more
of the Parties' other obligations to the Banks. No security taken before or
after as security for the Obligations impairs or affects this Eighteenth
Amendment (or any agreement or document referred to herein). All present and
future additional security is to be considered as cumulative security.
N. This Eighteenth Amendment and the Exhibits and Schedules hereto
constitute the Parties' and the Banks' entire understanding with respect to the
subject matter hereof. Modifications or amendments to this Eighteenth Amendment
must be in writing and signed by the party to be charged in order to be
effective. This Eighteenth Amendment is governed by the internal laws of the
State of Michigan (without regard to conflicts of law principles). This
Eighteenth Amendment is binding on each Party and their respective successors,
assigns, heirs, and personal representatives and shall inure to the Banks'
benefit and the benefit of their successors and assigns. If any provision of
this Eighteenth Amendment conflicts with any applicable statute or law, or is
otherwise unenforceable, such offending provision is null and void only to the
extent of such conflict or unenforceability, and is deemed separate from and
does not invalidate any other provision of this Eighteenth Amendment.
O. This Eighteenth Amendment is being entered into among competent
persons, who are experienced in business and represented by counsel, and has
been reviewed by the Parties and their counsel, if any. Therefore, any ambiguous
language in this Eighteenth Amendment will not necessarily be construed against
any particular party as the drafter of such language.
P. If there is an express conflict between the terms of this Amendment
and the terms of the Loan Agreement or the other Loan Documents, the terms of
this Amendment govern and control.
Q. This Amendment may be executed in any number of counterparts with
the same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one instrument.
R. STATUTE OF FRAUDS. THIS EIGHTEENTH AMENDMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE BANKS AND THE PARTIES WITH REGARD TO THE SUBJECT MATTER
HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
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SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. ALL PRIOR AND CONTEMPORANEOUS ORAL
AGREEMENTS, IF ANY, BETWEEN EITHER OF THE BANKS OR THE AGENT, ON THE ONE HAND,
AND ANY ONE OR MORE OF THE PARTIES, ON THE OTHER HAND, ARE MERGED INTO THIS
SEVENTEENTH AMENDMENT AND SHALL NOT SURVIVE THE EXECUTION OF THIS SEVENTEENTH
AMENDMENT.
S. WAIVER OF JURY TRIAL.
BORROWERS AND BANKS EACH ACKNOWLEDGE THAT THE RIGHT TO A TRIAL BY JURY
IS A CONSTITUTIONAL RIGHT, BUT THAT THE RIGHT MAY BE WAIVED. BORROWERS AND BANKS
EACH KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND WITHOUT COERCION, WAIVE ALL RIGHTS
TO TRIAL BY JURY OF ALL DISPUTES BETWEEN THEM. NEITHER OF THE BANKS NOR ANY
BORROWER SHALL BE DEEMED TO HAVE GIVEN UP THIS WAIVER OF JURY TRIAL UNLESS THE
PARTY CLAIMING THAT THIS WAIVER HAS BEEN RELINQUISHED HAS A WRITTEN INSTRUMENT
SIGNED BY THE OTHER PARTY STATING THAT THIS WAIVER HAS BEEN GIVEN UP.
T. RELEASE. AS OF THE DATE HEREOF EACH OF THE BORROWERS REPRESENTS AND
WARRANTS THAT THEY ARE AWARE OF, AND POSSESS, NO CLAIMS OR CAUSES OF ACTION
AGAINST EITHER OF THE BANKS OR THE AGENT. NOTWITHSTANDING THIS REPRESENTATION
AND AS FURTHER CONSIDERATION FOR THE AGREEMENTS AND UNDERSTANDINGS HEREIN, EACH
OF THE BORROWERS INDIVIDUALLY, JOINTLY, SEVERALLY, AND JOINTLY AND SEVERALLY, IN
EVERY CAPACITY, INCLUDING BUT NOT LIMITED TO, AS SHAREHOLDERS, OFFICERS,
PARTNERS, DIRECTORS, INVESTORS, OR CREDITORS OF ANY ONE OR MORE OF THE
BORROWERS, EACH OF ITS EMPLOYEES, AGENTS, EXECUTORS, SUCCESSORS AND ASSIGNS,
HEREBY RELEASES EACH OF THE BANKS AND THE AGENT, THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS
FROM ANY LIABILITY, CLAIM, RIGHT OR CAUSE OF ACTION THAT NOW EXISTS, OR
HEREAFTER ARISES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR IN ANY WAY RELATED
TO FACTS IN EXISTENCE AS OF THE DATE HEREOF. BY WAY OF EXAMPLE AND NOT
LIMITATION, THE FORGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED TO ACTIONS TAKEN
OR OMITTED TO BE TAKEN BY EITHER OF THE BANKS OR THE AGENT UNDER THE LOAN
DOCUMENTS, THE BUSINESS RELATIONSHIP WITH EITHER OF THE BANKS OR THE AGENT AND
ALL OTHER OBLIGATIONS OF ANY NATURE OR KIND OF ANY ONE OR MORE OF THE BORROWERS,
ANY ORAL AGREEMENTS OR UNDERSTANDINGS (ACTUAL OR ALLEGED), ANY BANKING
RELATIONSHIPS THAT ANY ONE OR MORE OF THE BORROWERS HAS OR MAY HAVE HAD WITH
EITHER OF THE BANKS AT ANY TIME AND FOR ANY REASON INCLUDING, BUT NOT LIMITED
TO, DEMAND DEPOSIT ACCOUNTS, OR OTHERWISE, BUT DOES NOT INCLUDE THE PARTIES'
FUTURE RIGHTS TO RECEIVE LOANS UNDER THE TERMS OF THE LOAN DOCUMENTS, AS AMENDED
BY THIS AGREEMENT, OR AS TO AMOUNTS ON DEPOSIT WITH EITHER OF THE BANKS OR STOCK
CERTIFICATES PLEDGED TO AND HELD BY EITHER OF THE BANKS AS COLLATERAL FOR THE
OBLIGATIONS.
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BANK ONE, NA (successor by merger to PNC BANK, NATIONAL ASSOCIATION
Bank One, Michigan), individually and as Agent
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Vice President
OWOSSO CORPORATION AHAB INVESTMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
Title: President & CEO Title: President
DWZM, INC. SMX LIQUIDATION CORP., INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
Title: President Title: President
OWOSSO-DELAWARE, INC. STATURE ELECTRIC, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
Title: President Title: Vice-President
[Signatures continued on following page]
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[Signatures continued from previous page]
OWOSSO MOTOR GROUP, INC. AAC LIQUIDATION CORP., INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxx, Xx.
Title: President Title: President
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