SIXTH AMENDMENT TO THIRD RESTATED REVOLVING CREDIT LOAN AGREEMENT
Exhibit
99.1
SIXTH
AMENDMENT TO THIRD RESTATED
This
Sixth Amendment to Third Restated Revolving Credit Loan Agreement (“Amendment”)
is dated July 30, 2010 (“Effective Date”), by and among 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, July 30, 2008 and July 30, 2009, 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, 2011; 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 that the date “July 30, 2010”
shall now mean and read “July 30, 2011.”
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.
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.
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 & ▇▇▇▇▇,
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.
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]
3
|
“Borrower”
|
||
| AAON, INC., an Oklahoma corporation | ||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President | ||
|
AAON COIL
PRODUCTS, INC., a Texas
corporation
(formerly known as CP/AAON, Inc.)
|
||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President | ||
| “Lender” | ||
| BANK OF OKLAHOMA, N.A. | ||
| By | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President | ||
4
RATIFICATION OF
GUARANTY
As
inducement for the Lender to enter into the Sixth Amendment to Third Restated
Revolving Credit Loan Agreement (“Amendment”) dated effective July 30, 2010, 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: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President | ||
5
Schedule
“3.1.2”
PROMISSORY
NOTE
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
DOLLARS ($15,150,000), 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, 2011
(“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, 2010, 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.
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.
6
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, 2009 payable by Maker to Lender.
|
“Maker”
|
||
| AAON, INC., an Oklahoma corporation | ||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President | ||
|
AAON
COIL PRODUCTS, INC.,
a
Texas corporation (formerly known as
CP/AAON,
Inc.)
|
||
| By | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President | ||
7