FIFTEENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDMENT AGREEMENT
This Fifteenth Amendment to Amended and Restated Credit Agreement and
Amendment Agreement (this "Amendment") is entered into October 27, 2002 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 ("SMX"), Stature Electric, Inc., Owosso Motor
Group, Inc., AAC Liquidation Corp., Inc., f/k/a Astro Air Coils, Inc. and
Owosso-Delaware, Inc. and 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
(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 and a Fourteenth Amendment to Amended and Restated
Credit Agreement and Amendment Agreement dated effective as of September 30,
2002 (as amended, the "Loan Agreement") and two Revolving Credit Notes dated on
or about July 31, 2002 each running in favor of one of the Banks (the "Notes")
as well as various other documents executed previously, simultaneously therewith
or subsequently (all of the foregoing, including the Loan Agreement, are
collectively referred to as the "Loan Documents"). Capitalized terms used but
not defined in this Amendment have the same meanings as in the Loan Agreement.
2. Pursuant to the terms of the Loan Agreement, the Borrowers were
obligated to deliver to the Agent, for the benefit of the Banks, a Deed of Trust
from SMX granting a security interest in favor of the Agent in certain real
estate owned by SMX in the State of Texas (the "Texas Property") to secure all
of the Obligations. As of the date of this Amendment, the Deed of Trust has just
been executed and returned to the Agent and therefore has not yet been recorded,
although it is the Borrowers' intention that the Texas Property and any proceeds
thereof secure all of the Obligations.
3. The Borrowers have informed the Banks that if they can sell the
Texas Property on or before October 27, 2002 they will receive a tax refund in
January or February of 2003 equal to at least $408,680 (the "Property Refund")
and that Xxxxxx Xxxxx #2, LLP is willing to purchase the Texas Property on or
before that date pursuant to the terms of a Contract for Deed, a copy of which
has been provided to the Agent (the "Sale Transaction").
4. Under the terms of the Loan Agreement the Borrowers need the Agent's
consent to sell the Texas Property. The Borrowers and the Banks also wish to
provide that the proceeds of the sale of the Texas Property and the Property
Refund will be applied to permanently reduce the Obligations.
5. Subject to the terms and conditions of this Amendment, and in
reliance on the Parties' agreements, acknowledgments, representations, and
warranties in this Amendment, the Banks have agreed to amend the Loan Agreement.
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. The Loan Agreement is amended as follows:
(1) Section 2.2(d) of the Loan Agreement is amended and
restated in its entirety to read as follows:
"(d) The Commitments will additionally cumulatively
reduce by the following amounts (each a "Mandatory Reduction")
at the following times in accordance with the terms of this
Section 2.2:
Mandatory Total Cumulative New
Date Reduction Reduction Commitment
---- --------- ----------------- -----------
Sept 30, 2002 $250,000 $250,000 $10,000,000
Oct 30, 2002 $150,000 $400,000 $9,850,000
Nov 30, 2002 $100,000 $500,000 $9,750,000
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As part of the calculation of the cumulative reduction, the
Commitments will reduce on a dollar for dollar basis by 100% of the net
cash proceeds (net only of reasonable costs of closing pursuant to sale
terms and conditions acceptable to the Banks in their reasonable
discretion) promptly upon the Borrowers' receipt thereof of the sale of
any of the assets of the Borrowers, including without limitation the
real estate owned by Xxxxxx and the Texas Property, and by 100% of the
face value of any Letter of Credit or full amount of any cash deposit
related thereto returned to either of the Banks promptly upon the
Borrowers' receipt thereof.
In addition to the reductions set forth above, the Commitments
will reduce by (i) if the Property Refund is received on or before
February 28, 2003, the greater of $408,680 or the amount of the
Property Refund promptly upon the Borrowers' receipt of the Property
Refund, or (ii) if the Property Refund is not received on or before
February 28, 2003, by $408,680 on February 28, 2003 and by any amount
by which the Property Refund exceeds $408,680 promptly upon the
Borrowers' receipt of the Property Refund."
(2) The definition of "Additional Amount" in Section 1.1 of
the Loan Agreement is amended and restated in its entirety to read as
follows:
""Additional Amount" means $6,985,000, less the
following amounts immediately upon the Borrowers' receipt
thereof: 100% of the net cash proceeds (net only of reasonable
costs of closing pursuant to sale terms and conditions
acceptable to the Banks in their reasonable discretion) of the
sale of any of the assets of the Borrowers, including without
limitation the real estate owned by Xxxxxx and the Texas
Property; the face value of any Letter of Credit or full
amount of any cash deposit related thereto returned to either
of the Banks; and the amount of any reduction in the
Commitments permitted or required under Section 2(a) and/or
2(d) of the Loan Agreement."
B. Borrowers acknowledge and agree that nothing in this Amendment
constitutes an agreement on the part of the Banks or the Agent to extend either
the Forbearance Period or the Line of Credit beyond December 31, 2002 nor are
the Banks or the Agent obligated to either extend the Forbearance Period or the
Line of Credit. The Agent and the Banks reserve all of their rights and remedies
under the Loan Agreement, the Amendment Agreement and the other Loan Documents.
C. From and after the date of this Amendment, references in the Loan
Documents (i) to the Loan Agreement and the Amendment Agreement are to be
treated as referring to the Loan Agreement and the Amendment Agreement as
amended by this Amendment, and (ii) to "obligations", "Obligations" and
"liabilities" are to be treated as referring to all indebtedness and obligations
referred to in this 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 pay
all costs and expenses (including reasonable attorneys' fees) incurred by the
Banks in connection with this Amendment.
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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. 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 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 August, 2002, 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) GBMC, Inc., a Borrower under the Loan Agreement, has
dissolved without any assets or liabilities and has therefore been
removed as a Borrower from this Amendment.
G. 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.
H. 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.
I. 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.
J. 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.
K. 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
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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 BORROWERS'
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.
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: Vice-President
[Signatures continued on following page]
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[Signatures continued from previous page]
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
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: Vice-President Title: Vice-President
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