Exhibit 99.1
FIFTH AMENDMENT TO THIRD RESTATED
REVOLVING CREDIT LOAN AGREEMENT
This Fifth Amendment to Third Restated Revolving Credit Loan Agreement
("Amendment") is dated July 30, 2009 ("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, July 30, 2006, July 30, 2007 and July 30, 2008, the
"Credit Agreement"), pursuant to which currently exists a $15,150,000 Revolving
Credit Loan.
B. Borrower has requested that Lender extend the Termination Date of
the Commitment and the maturity date of the Revolving Credit Note to July 30,
2010; 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 1.20 (Letter of Credit Fee) is hereby amended to
read as follows:
"1.20 "Letter of Credit Fee" means a fee of two and
one-half percent (2 1/2%) per annum on the face amount of any
Letter of Credit issued hereunder, including any renewals
thereof, payable quarterly in arrears and on the expiration or
termination thereof."
2.2. Section 1.41 (Termination Date) is hereby amended to
evidence that the date "July 30, 2009" shall now mean and read "July
30, 2010."
2.3. Sections (1) and (2) of Section 2.51 (Rates) are hereby
amended to read as follows:
"(1) For a Prime Loan at a rate equal to the Prime
Rate, floating, per annum; provided, that in no event shall
the interest rate accruing on a Prime Loan be less than four
percent (4%) per annum.
(1)
(2) For a LIBOR Loan at a rate equal to the LIBOR
Interest Rate, plus two and one half percent (2.5%) per annum;
provided, that in no event shall the interest rate accruing on
a LIBOR Loan be less than four percent (4%) per annum."
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 renewal 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.
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.
(2)
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.
5. MISCELLANEOUS.
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.
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.
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.
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.
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.
(3)
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.
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.
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.
[SIGNATURE PAGE FOLLOWS]
(4)
"Borrower"
AAON, INC., an Oklahoma corporation
By
---------------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
AAON COIL PRODUCTS, INC., a Texas
corporation (formerly known as CP/AAON, Inc.)
By
---------------------------------------------
Xxxxxx X. Xxxxxxxxxx, President
"Lender"
BANK OF OKLAHOMA, N.A.
By
----------------------------------------------
Xxxxxxx X. XxXxx, Vice President
(5)
RATIFICATION OF GUARANTY
------------------------
As inducement for the Lender to enter into the Fifth Amendment to Third
Restated Revolving Credit Loan Agreement ("Amendment") dated effective July 30,
2009, to which this Ratification is affixed, the undersigned Guarantor hereby
agrees to such Amendment and further hereby ratifies and confirms its Guaranty
Agreement.
AAON, INC., A Nevada corporation
By: ________________________________
Xxxxxx X. Xxxxxxxxxx, President
(6)
Schedule "3.1.2"
PROMISSORY NOTE
$15,150,000 Effective July 30, 2009
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
unpaid advances made by Lender to Maker pursuant to the terms and conditions of
the Third Restated Revolving Credit Agreement dated July 30, 2004, between Maker
and Lender (as amended from time to time, the "Credit Agreement"), as follows:
a. Principal. Principal shall be payable on July 30, 2010
("Maturity").
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, 2009, 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 used herein shall have the meanings ascribed to them
in the Credit Agreement, unless specifically defined herein.
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.
(7)
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.
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, 2008 payable by Maker to Lender.
"Maker"
AAON, INC., an Oklahoma corporation
By __________________________________
Xxxxxx X. Xxxxxxxxxx, President
AAON COIL PRODUCTS, INC.,
a Texas corporation (formerly known as
CP/AAON, Inc.)
By __________________________________
Xxxxxx X. Xxxxxxxxxx, President
(8)
