Execution Copy
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT, dated as of March
27, 1998 (this "Amendment"), is by and among OWOSSO CORPORATION, a Pennsylvania
corporation ("Owosso"), AHAB INVESTMENT COMPANY, a Delaware corporation
("Ahab"), XXXXXX COMPANY, a Delaware corporation ("Xxxxxx"), DEWEZE
MANUFACTURING, INC., a Pennsylvania corporation ("DewEze"), THE LANDOVER
COMPANY, a Pennsylvania corporation, and the survivor of the merger with Xxxxxx
Industries Group, Inc., a Washington corporation ("Landover"), MOTOR
PRODUCTS-OWOSSO CORPORATION, a Delaware corporation ("Motor Products"), SNOWMAX,
INCORPORATED, a Pennsylvania corporation ("Snowmax"), SOONER TRAILER
MANUFACTURING CO., a Delaware corporation ("Sooner"), MOTOR PRODUCTS-OHIO
CORPORATION, a Delaware corporation ("Motor Products-Ohio"), GREAT BEND
MANUFACTURING COMPANY, INC., a Kansas corporation ("Great Bend"), STATURE
ELECTRIC, INC., a New York corporation ("Stature"), and OWOSSO MOTOR GROUP,
INC., a Pennsylvania corporation ("Motor Group" and, together with Owosso, Ahab,
Xxxxxx, DewEze, Landover, Motor Products, Snowmax, Sooner, Motor Products-Ohio,
Great Bend and Stature, collectively the "Borrowers" and individually a
"Borrower"), NBD BANK, a Michigan banking corporation formerly known as NBD
Bank, N.A. ("NBD"), PNC BANK, NATIONAL ASSOCIATION, a national banking
association ("PNC" and, together with NBD, collectively the "Banks" and
individually a "Bank"), and NBD BANK, as agent (in such capacity, the "Agent")
for the Banks.
INTRODUCTION
A. The Borrowers, the Banks and the Agent are parties to the
Credit Agreement, dated as of October 31, 1994, as amended by the First
Amendment to Credit Agreement, dated as of August 1, 1995, the Second Amendment
to Credit Agreement, dated as of September 1, 1995, the Third Amendment to
Credit Agreement, dated as of October 31, 1995, and the Fourth Amendment to
Credit Agreement, dated as of March 8, 1996, the Fifth Amendment to Credit
Agreement, dated as of May 31, 1996, the Sixth Amendment to Credit Agreement,
dated as of December 1, 1996, the Seventh Amendment to Credit Agreement, dated
as of March 3, 1997, and the Eighth Amendment to Credit Agreement, dated as of
December 29, 1997 (the "Credit Agreement"), pursuant to which the Banks provide
to the Borrowers, on a joint and several liability basis, a revolving credit
facility in the aggregate principal amount of $55,000,000.
B. The Borrowers, the Banks and the Agent now desire to
further amend the Credit Agreement on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual agreements
herein and in the Credit Agreement contained, the parties hereto agree as
follows:
ARTICLE 1. AMENDMENTS TO CREDIT AGREEMENT
Effective upon the date (the "Amendment Date") the conditions
precedent set forth in Article 2 of this Amendment are satisfied, the Credit
Agreement hereby is amended as follows:
1.1 The following definitions of the terms "Ninth Amendment"
and "Pledge Agreement" are added to Section 1.1 in alphabetical order:
"Ninth Amendment" shall mean the Ninth Amendment to Credit
Agreement, dated as of March 27, 1998, by and among the
Borrowers, the Banks and the Agent.
"Pledge Agreement" shall mean, collectively, each pledge
agreement entered into by Owosso in favor of the Agent for the
benefit of the Banks and the Agent, pursuant to the Ninth
Amendment or otherwise, as amended or modified from time to
time.
1.2 The following sentence is added to the end of
Section 5.1(g):
In addition, the relevant Borrower or Subsidiary shall, within
such time period, execute and deliver to the Banks and the
Agent a pledge agreement, or an amendment to any existing
Pledge Agreement, in form and substance satisfactory to the
Agent, pursuant to which such Borrower or Subsidiary, as the
case may be, shall pledge all capital stock of such new
Subsidiary.
1.3 Section 5.2(b) is amended and restated in full as follows:
(b) Total Debt to EBITDA. Permit or suffer the ratio
of Consolidated Total Debt of the Borrowers and their
Subsidiaries to Consolidated EBITDA of the Borrowers and their
Subsidiaries to be greater than (i) 5.00 to 1.00 as of the
last day of either of the Borrowers' fiscal quarters ending on
or about January 31, 1997 or April 30, 1997, (ii) 4.75 to 1.00
as of the last day of the Borrowers' fiscal quarter ending on
or about July 31, 1997, (iii) 4.00 to 1.00 as of the last day
of either of the Borrowers' fiscal quarters ending on or about
October 31, 1997 or January 31, 1998, (iv) 4.50 to 1.00 as of
the last day of either of the Borrowers' fiscal quarters
ending on or about April 30, 1998 or July 31, 1998, or (v)
3.50 to 1.00 as of the end of any of the Borrowers' fiscal
quarters ending at any time thereafter. For purposes of
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determining from time to time the Borrowers' compliance with
this subsection, each Person that is a Borrower or a
Subsidiary of a Borrower at the time of such determination
shall be deemed to have been a Borrower or a Subsidiary of a
Borrower, as the case may be, for the entire period relevant
to such determination (i.e., in each case, the period of four
fiscal quarters of the Borrowers then ended) and each Person
that was a Borrower or Subsidiary of a Borrower at any time
during such relevant period, but is no longer a Borrower or
Subsidiary of a Borrower, as the case may be, at the time of
such determination, shall be deemed not to have been a
Borrower or a Subsidiary of a Borrower, as the case may be, at
any time during such period.
1.4 Section 5.2(c) is amended and restated in full as follows:
(c) Fixed Charges Coverage. Permit or suffer the
ratio of Consolidated Fixed Charges Coverage Availability of
the Borrowers and their Subsidiaries to Consolidated Fixed
Charges of the Borrowers and their Subsidiaries to be less
than (i) 0.75 to 1.00 as of the end of either of the
Borrowers' fiscal quarters ending on or about January 31, 1997
or April 30, 1997, (ii) 0.80 to 1.00 as of the end of the
Borrowers' fiscal quarter ending on or about July 31, 1997,
(iii) 1.00 to 1.00 as of the end of the Borrowers' fiscal
quarter ending on or about October 31, 1997 or January 31,
1998, (iv) 0.90 to 1.00 as of the end of either of the
Borrowers' fiscal quarters ending on or about April 30, 1998
or July 31, 1998, (v) 1.10 to 1.00 as of the end of any of the
Borrowers' fiscal quarters ending on or about October 31,
1998, January 31, 1999 or April 30, 1999, or (vi) 1.25 to 1.00
as of the end of any of the Borrowers' fiscal quarters ending
at any time thereafter; such ratio to be determined as of the
last day of each fiscal quarter of the Borrowers for the
period of four fiscal quarters of the Borrowers then ended.
For purposes of determining from time to time the Borrowers'
compliance with this subsection, each Person that is a
Borrower or a Subsidiary of a Borrower at the time of such
determination shall be deemed to have been a Borrower or a
Subsidiary of a Borrower, as the case may be, for the entire
period relevant to such determination (i.e., in each case, the
period of four fiscal quarters of the Borrowers then ended)
and each Person that was a Borrower or Subsidiary of a
Borrower at any time during such relevant period, but is no
longer a Borrower or Subsidiary of a Borrower, as the case may
be, at the time of such determination, shall be deemed not to
have been a Borrower or a Subsidiary of a Borrower, as the
case may be, at any time during such period. 1.5 Section
5.2(e) is amended and restated in full as follows:
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(e) Tangible Net Worth. Permit or suffer the Consolidated
Tangible Net Worth of the Borrowers and their Subsidiaries to
be less than $0 at the end of the Borrowers' fiscal quarter
ending on or about October 31, 1998, or at anytime thereafter.
1.6 Section 5.2(i) is amended and restated in full as follows:
(i) Negative Pledge Limitation. At any time after the
Amendment Date (as defined in the Ninth Amendment), enter into
any agreement, with any person other than the Banks and the
Agent pursuant hereto which prohibits or limits the ability of
any of the Borrowers or any of their respective Subsidiaries
to create, incur, assume or suffer to exist any Lien upon any
of their respective assets, rights, revenues or property,
real, personal or mixed, tangible or intangible, whether now
owned or hereafter acquired.
1.7 Subsection (j) of Section 6.1 is relabeled as subsection
"(k)", and a new subsection (j) is inserted immediately following subsection
(i), as follows:
(j) Pledge Agreement. Any event of default described in the
Pledge Agreement shall have occurred and be continuing, or any
material provision of the Pledge Agreement shall at any time
for any reason cease to be valid and binding and enforceable
against any obligor thereunder, or the validity, binding
effect or enforceability thereof shall be contested by any
Borrower or any other Pledged Subsidiary (as defined in the
Pledge Agreement), if any, or any obligor shall deny that it
has any or further liability or obligation thereunder, or any
material provision thereof shall be terminated, invalidated or
set aside, or be declared ineffective or inoperative or in any
way cease to give or provide to the Banks and the Agent the
benefits purported to be created thereby; provided that the
occurrence of any Divestiture (as defined in the Ninth
Amendment) with the consent of the Banks, and the release from
the Pledge Agreement of the stock of the divested Pledged
Subsidiary in connection therewith, shall not constitute an
Event of Default hereunder.
ARTICLE 2. CONDITIONS PRECEDENT TO AMENDMENTS
As conditions precedent to the effectiveness of the amendments
to the Credit Agreement set forth in Article 1 of this Amendment, the Banks and
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the Agent shall receive the following documents and the following matters shall
be completed, all in form and substance satisfactory to the Agent:
2.1 Owosso shall have executed and delivered to the Banks and
the Agent a pledge agreement, in form and substance satisfactory to the Agent
(the "Pledge Agreement"), pursuant to which Owosso shall have pledged all
capital stock of all Subsidiaries of Owosso.
2.2 Certified copies of such documents evidencing necessary
corporate action of Owosso with respect to this Amendment, the Pledge Agreement
and the transactions contemplated hereby as the Agent may reasonably request.
2.3 The favorable written opinion of counsel to the Borrowers
in form and substance satisfactory to the Agent, with respect to such matters as
the Agent may reasonably request.
2.4 Such other documents and agreements reasonably requested
by the Agent.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Amendment,
each Borrower represents and warrants that:
3.1 The execution, delivery and performance by the Borrowers
of this Amendment, and the execution, delivery and performance by Owosso of the
Pledge Agreement, have been duly authorized by all necessary corporate action
and do not and will not (a) require any consent or approval of the stockholders
of any Borrower, (b) violate any provisions of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently in effect
having applicability to any Borrower or of the Articles of Incorporation or
By-Laws of any Borrower, or (c) 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 any Borrower or its
properties may be bound or affected.
3.2 No authorization, consent, approval, license, exemption of
or filing, declaration or registration with any governmental authority or any
non-governmental person or entity, including without limitation any creditor or
stockholder of any Borrower, is required on the part of any Borrower in
connection with the execution, delivery and performance of this Amendment or the
Pledge Agreement, or the transactions contemplated hereby or as a condition to
the legality, validity or enforceability of this Amendment or the Pledge
Agreement.
3.3 This Amendment is a legal, valid and binding obligation of
the Borrowers enforceable against the Borrowers in accordance with its terms.
The Pledge Agreement is a legal, valid and binding obligation of Owosso
enforceable against Owosso in accordance with its terms.
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3.4 After giving effect to the amendments contained in Article
1 of this Amendment and to Section 5.2 of this Amendment, the representations
and warranties contained in Article IV of the Credit Agreement are true on and
as of the date hereof with the same force and effect as if made on and as of the
date hereof, provided that none of Stature, Motor Products-Ohio, Great Bend or
Motor Group shall be deemed a "Borrower" with respect to, but only with respect
to, such representations and warranties regarding historical matters not
involving any such Borrower.
3.5 To the best of its knowledge, none of the Borrowers or any
of their respective Subsidiaries is a party to or otherwise bound by any
agreement which, if such agreement were entered into or became binding after the
Amendment Date, would be prohibited by Section 5.2(i) of the Credit Agreement,
as amended by this Amendment. The Borrowers agree to promptly inform the Banks
and the Agent upon any of the Borrowers becoming aware after the Amendment Date
of any such agreement to which any of them was a party as of the Amendment Date
and thereafter continues to be a party.
ARTICLE 4. CONDITIONAL CONSENT TO
ACQUISITIONS AND DIVESTITURES
Owosso has informed the Banks and the Agent that it desires
(a) to purchase the stock of X.X. Xxxxxx, Inc., a Delaware corporation, and to
purchase the stock of Astro Air, Inc., a Texas corporation (collectively, the
"Acquisitions" and, individually, an "Acquisition"), and (b) to sell
substantially all the assets or 100% of the capital stock of Great Bend, to sell
substantially all the assets of the Xxxxxx division of DewEze, and to sell
substantially all the other assets or 100% of the capital stock of DewEze
(collectively, the "Divestitures" and, individually, a "Divestiture"). The
Borrowers and the Banks agree that, notwithstanding anything in the Credit
Agreement to the contrary, the Acquisitions and the Divestitures shall be
prohibited without the prior written consent of the Banks.
The Banks hereby consent to each Acquisition and each
Divestiture, provided that in each case the following conditions shall have been
satisfied:
(a) no Default or Event of Default shall have
occurred and be continuing at the time of each such
Acquisition and Divestiture (both before and after the
consummation of each such Acquisition or Divestiture);
(b) the Great Bend Divestiture or other Divestitures
the net proceeds of which total not less than $7,000,000 shall
have been consummated prior to any Acquisition;
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(c) each such Acquisition or Divestiture shall be
consummated on substantially the terms and conditions as the
Borrowers shall have from time to time represented to the
Banks would be the terms and conditions for such Acquisition
or Divestiture, as the case may be;
(d) all other requirements of Sections 5.1(g) and
5.2(g) of the Credit Agreement shall be satisfied in
connection with each such Acquisition; and
(e) immediately upon the consummation of each such
Acquisition, Owosso shall pledge all capital stock of the
acquired entity to the Banks and the Agent pursuant to a
pledge agreement, or an amendment to any existing Pledge
Agreement, in form and substance satisfactory to the Agent.
The consent of the Banks provided herein is limited to the Acquisitions and
Divestitures and is subject to the conditions set forth above, and such consent
shall not be deemed to be a waiver of or consent to any other action or omission
in violation of the Credit Agreement, or a waiver or modification of any
provision of the Credit Agreement, except as expressly set forth herein, and
such consent shall not be deemed to prejudice any other right or rights which
any of the Banks or the Agent may now have or have in the future under or in
connection with the Credit Agreement.
Immediately upon the consummation of each such Divestiture
that is a stock sale, provided that all relevant conditions described in (a)-(e)
above relating to such Divestiture have been satisfied, whichever one of Great
Bend and DewEze is the subject of each such Divestiture automatically shall be
released from its obligations under the Credit Agreement and the Notes, and its
stock shall be released from the pledge under the Pledge Agreement.
ARTICLE 5. MISCELLANEOUS
5.1 If any Borrower shall fail to perform or observe any term,
covenant or agreement in this Amendment, or any representation or warranty made
by any Borrower in this Amendment shall prove to have been incorrect in any
material respect when made, such occurrence shall be deemed to constitute an
Event of Default.
5.2 All references to the Credit Agreement in any agreement,
certificate or instrument referred to in the Credit Agreement, or delivered
pursuant thereto or in connection therewith or in any other document, hereafter
shall be deemed references to the Credit Agreement, as amended hereby.
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5.3 All agreements, certificates and instruments executed
pursuant to the Credit Agreement or in connection therewith and, subject to the
amendments herein provided, the Credit Agreement, shall in all respects continue
in full force and effect and are hereby ratified and confirmed.
5.4 Capitalized terms used but not defined in this Amendment
shall have the respective meanings ascribed thereto in the Credit Agreement.
5.5 This Amendment shall be governed by and construed in
accordance with the laws of the State of Michigan.
5.6 This Amendment may be signed upon any number of
counterparts with the same effect as if the signatures thereto were upon the
same instrument.
5.7 The Borrowers agree, jointly and severally, to pay the
reasonable fees and expenses of Xxxxxxxxx Xxxxxx PLLC, counsel for the Agent, in
connection with the negotiation and preparation of this Amendment and the
documents referred to herein and the consummation of the transactions
contemplated hereby, and in connection with advising the Agent as to its rights
and responsibilities with respect thereto.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed and delivered as of the date first above written.
BORROWERS: OWOSSO CORPORATION
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Senior VP - Finance & CFO
--------------------------
AHAB INVESTMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Its: Vice President
-------------------
XXXXXX COMPANY
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
DEWEZE MANUFACTURING, INC.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
THE LANDOVER COMPANY
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
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MOTOR PRODUCTS-OWOSSO
CORPORATION
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
GREAT BEND MANUFACTURING
COMPANY, INC.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
SNOWMAX, INCORPORATED
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
SOONER TRAILER MANUFACTURING
CO.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
MOTOR PRODUCTS-OHIO
CORPORATION
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
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STATURE ELECTRIC, INC.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
OWOSSO MOTOR GROUP, INC.
By: /s/ Xxxx X. Xxxx, Xx.
-----------------------------
Its: Secretary/Treasurer
--------------------
Agent and Banks: NBD BANK, as Agent and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Its: Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------
Its: Banking Officer
----------------
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