TWELFTH AMENDMENT TO LOAN AGREEMENT
THIS TWELFTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made and
entered into effective as of January 5, 2004, by and among LMI AEROSPACE, INC.,
formerly known as Leonard's Metal, Inc., a Missouri corporation, LMI FINISHING
INC., an Oklahoma corporation, LEONARD'S METAL, INC., formerly known as LMI
Acquisition, Inc., a Missouri corporation, PRECISE MACHINE COMPANY, a Missouri
corporation, TEMPCO ENGINEERING, INC., a Missouri corporation, formerly known as
Metal Corporation and doing business in the state of California as Metal
Corporation of Sun Valley and VERSAFORM CORP., a California corporation, as
co-obligors and co-borrowers and not as accommodation parties (said corporations
being jointly and severally referred to herein as "Borrower"), and UNION
PLANTERS BANK, N.A., a national banking association, successor to Magna Bank,
National Association ("Bank").
WITNESSETH:
WHEREAS, Borrower and Bank have heretofore entered into that certain
Loan Agreement dated August 15, 1996 as amended by that certain First Amendment
to Loan Agreement dated January 15, 1997, that certain Second Amendment to Loan
Agreement dated November 1, 1997, that certain Third Amendment to Loan Agreement
dated March 30, 2000, that certain Fourth Amendment to Loan Agreement dated
October 30, 2000, that certain Fifth Amendment to and Restatement of Loan
Agreement dated April 2, 2001, that certain Sixth Amendment to Loan Agreement
dated October 30, 2001, that certain Seventh Amendment to Loan Agreement dated
November 30, 2001, that certain Eighth Amendment to and Restatement of Loan
Agreement dated May 15, 2002, that certain Ninth Amendment to Loan Agreement
dated June 30, 2002, that certain Tenth Amendment to Loan Agreement dated
November 13, 2002, and that certain Eleventh Amendment to Loan Agreement dated
April 15, 2003 (as so amended, the "Loan Agreement"); and
WHEREAS, Borrower and Bank desire to further amend the Loan Agreement
in the manner hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Bank hereby agree as follows:
1. The "Revolving Credit Period", as defined in Section 2 of the Loan
Agreement, is hereby extended to March 31, 2004.
2. Section 3.01(a) of the Loan Agreement is hereby amended to provide
in its entirety as follows:
(a) Subject to the terms and conditions of this Agreement, during
the Revolving Credit Period of this Agreement, and so long as no
Default or Event of Default under this Agreement has occurred and is
continuing, Bank hereby agrees to make such loans (individually, a
"Revolving Credit Loan" and collectively, the "Revolving Credit Loans")
to Borrower as Borrower may from time to time request pursuant to
Section 3.02. The aggregate principal amount of Revolving Credit Loans
which Bank shall be required to have outstanding under this Agreement
at any one time shall not exceed the lesser of (A) $9,088,323.00 or (B)
the Borrowing Base. Subject to the terms and conditions of this
Agreement, Borrower may borrow, repay and reborrow such sums from Bank,
provided, however, that in no event may the aggregate outstanding
principal amount of Revolving Credit Loans on any given day exceed the
applicable amount specified in the preceding sentence. All Revolving
Credit Loans not paid prior to the last day of the Revolving Credit
Period, together with all accrued and unpaid interest thereon, shall be
due and payable on the last day of the Revolving Credit Period.
3. Bank hereby waives the existing Event of Default under the Loan
Agreement caused by the failure of Borrower and Bank to enter into to an
amendment to the Loan Agreement establishing minimum levels of Consolidated
EBITDA to apply for periods after December 31, 2003, as required by Section
8.01(i) of the Loan Agreement. This paragraph is not and shall not be construed
as a commitment on the part of Bank to waive any other existing or future
Default or Event of Default under the Loan Agreement resulting from any
violation of Section 8.01(i) of the Loan Agreement or any other Default or Event
of Default under the Loan Agreement.
4. Borrower hereby agrees to pay Bank a nonrefundable amendment and
waiver fee in the amount of Seventy-five Thousand and no/100 Dollars
($75,000.00) (the "Fee") on the earlier of (i) the last day of the Revolving
Credit Period and (ii) the date of payment of Borrower's Obligations and the
termination of the Loan Agreement. Borrower acknowledges and agrees that the Fee
is fully earned upon the effectiveness of, and as of the date of, this
Amendment. Notwithstanding the foregoing, should Borrower pay its Obligations
before the last day of the Revolving Credit Period and the Loan Agreement be
terminated before such date, Bank shall waive Twenty-five Thousand and no/100
Dollars ($25,000.00) of the Fee, and the Fee due hereunder accordingly shall be
reduced to Fifty Thousand and no/100 Dollars ($50,000.00).
5. Contemporaneously with the execution of this Amendment, Borrower
will execute and deliver to Bank an Amended and Restated Revolving Note in
substantially the form of Exhibit A attached hereto and incorporated herein by
reference.
6. Borrower hereby agrees to reimburse Bank upon demand for all
out-of-pocket costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Bank in the preparation, negotiation
and execution of this Amendment and any and all other agreements, documents,
instruments and/or certificates relating to the amendment of Borrower's existing
credit facilities with Bank (collectively, the "Loan Documents"). Borrower
further agrees to pay or reimburse Bank for (a) any stamp or other taxes
(excluding income or gross receipts taxes) which may be payable with respect to
the execution, delivery, filing and/or recording of the Loan Documents and (b)
the cost of any filings and searches, including, without limitation, Uniform
Commercial Code filings and searches. All of the obligations of Borrower under
this paragraph shall survive the payment of the Borrower's Obligations and the
termination of the Loan Agreement.
7. All references in the Loan Agreement to "this Agreement" and any
other references of similar import shall henceforth mean the Loan Agreement as
amended by this Amendment. All references in the Loan Agreement and the other
Transaction Documents to the "Revolving Credit Note" and any other references of
similar import shall henceforth mean the Amended and Restated Revolving Note in
the form of Exhibit A attached hereto.
8. Except to the extent specifically amended by this Amendment, all of
the terms, provisions, conditions, covenants, representations and warranties
contained in the Loan Agreement shall be and remain in full force and effect and
the same are hereby ratified and confirmed. This amendment is an amendment and
continuation of the Loan Agreement and is not a novation thereof nor of any
obligations of Borrower outstanding thereunder on the date hereof.
9. This Amendment shall be binding upon and inure to the benefit of
Borrower and Bank and their respective successors and assigns, except that
Borrower may not assign, transfer or delegate any of its rights or obligations
under the Loan Agreement, as amended by this Amendment.
10. Each Borrower hereby represents and warrants to Bank that:
(a) the execution, delivery and performance by such Borrower of
this Amendment are within the corporate powers of such Borrower, have
been duly authorized by all corporate action and require no action by
or in respect of, consent of or filing or recording with, any
governmental or regulatory body, agency or official or any other
Person;
(b) the execution, delivery and performance by such Borrower of
this Amendment do not conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a default under or
result in any violation of, the terms of the Articles of Incorporation
or By-Laws of such Borrower, any applicable law, rule, regulation,
order, writ, judgment or decree of any court or governmental or
regulatory agency or instrumentality or any agreement, document or
instrument to which such Borrower is a party or by which such Borrower
or any of its Property or assets is bound or to which such Borrower or
its Property or assets is subject;
(c) this Amendment has been duly executed and delivered by such
Borrower and constitutes the legal, valid and binding obligation of
such Borrower enforceable against such Borrower in accordance with its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); and
(d) as of the date of this Amendment, all of the representations
and warranties of Borrower set forth in the Loan Agreement and the
Transaction Documents are true and correct in all material respects and
no Default or Event of Default under or within the meaning of the Loan
Agreement has occurred and is continuing.
11. In the event of any inconsistency or conflict between this
Amendment and the Loan Agreement, the terms, provisions and conditions contained
in this Amendment shall govern and control.
12. This Amendment shall be governed by and construed in accordance
with the substantive laws of the State of Missouri (without reference to
conflict of law principles).
13. Notwithstanding any provision contained in this Amendment to the
contrary, this Amendment shall not be effective unless and until Bank shall have
received:
(a) this Amendment, duly executed by Borrower;
(b) the Amended and Restated Revolving Note, duly executed by
Borrower;
(c) a copy of resolutions of the Board of Directors of Borrower,
duly adopted, which authorize the execution, delivery and performance
of this Amendment and the Amended and Restated Revolving Note; and
(d) an incumbency certificate, executed by the Secretary of
Borrower, which shall identify by name and title and bear the
signatures of all of the officers of Borrower executing this Amendment.
14. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER AND BANK
COVERING SUCH MATTERS ARE CONTAINED IN THE LOAN AGREEMENT AS AMENDED BY THIS
AMENDMENT AND THE OTHER AGREEMENTS, WHICH LOAN AGREEMENT AS AMENDED BY THIS
AMENDMENT AND OTHER AGREEMENTS ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENTS BETWEEN BORROWER AND BANK, EXCEPT AS BORROWER AND BANK MAY LATER
AGREE IN WRITING TO MODIFY THEM.
[SIGNATURE PAGES FOLLOWS THIS PAGE]
IN WITNESS WHEREOF, the parties have executed this Twelfth Amendment to
Loan Agreement as of the date first written above.
LMI AEROSPACE, INC. (formerly known as
Leonard's Metal, Inc.)
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
LMI FINISHING, INC.
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
LEONARD'S METAL, INC. (formerly known as
LMI Acquisition, Inc.)
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
PRECISE MACHINE COMPANY
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
TEMPCO ENGINEERING, INC. (formerly known as
Metal Corporation)
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
VERSAFORM CORP.
By /s/ Lawrence E. Dickinson
-----------------------------------------
Lawrence E. Dickinson
Title: Vice President
UNION PLANTERS BANK, N.A.
By /s/ Patricia A. O'Herin
-----------------------------------------
Patricia A. O'Herin
Title: Executive Vice President
EXHIBIT A
AMENDED AND RESTATED
REVOLVING NOTE
$9,088,323.00 St. Louis, Missouri
Date of Original Note: May 15, 2002
Date of this Amended and Restated Note: January 5, 2004
For value received, the undersigned, LMI AEROSPACE, INC., a Missouri
corporation, LMI FINISHING, INC., an Oklahoma corporation, LEONARD'S METAL,
INC., a Missouri corporation, PRECISE MACHINE COMPANY, a Missouri corporation,
TEMPCO ENGINEERING, INC., a Missouri corporation, and VERSAFORM CORP., a
California corporation (collectively, the "Borrower"), hereby jointly and
severally promise to pay on the last day of the Revolving Credit Period under
the Loan Agreement (defined below), to the order of UNION PLANTERS BANK, N.A., a
national banking association (the "Bank"), at its main office in St. Louis,
Missouri, or at any other place designated at any time by the holder hereof, in
lawful money of the United States of America and in immediately available funds,
the principal sum of Nine Million Eighty-eight Thousand Three Hundred
Twenty-three and no/100 Dollars ($9,088,323.00) or, if less, the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Bank to the
Borrower under the Loan Agreement (defined below) together with interest on the
principal amount hereunder remaining unpaid from time to time, computed on the
basis of the actual number of days elapsed and a 360-day year, from the date
hereof until this Note is fully paid at the rate from time to time in effect
under the Eighth Amendment to and Restatement of Loan Agreement dated May 15,
2002 (as the same has been and may hereafter be amended, supplemented or
restated from time to time, the "Loan Agreement") by and between the Bank and
the Borrower. The principal hereof and interest accruing thereon shall be due
and payable as provided in the Loan Agreement. This Note may be prepaid only in
accordance with the Loan Agreement.
This Note is issued pursuant, and is subject, to the Loan Agreement, which
provides, among other things, for acceleration hereof. This Note is the
Revolving Credit Note referred to in the Loan Agreement. This Note is secured,
among other things, pursuant to the Security Agreements, the Patent, Trademark
and License Security Agreement, the Kansas Assignment of Leases and Rents, the
Kansas Mortgage, the Missouri Deed of Trust, the Oklahoma Assignment of Leases
and Rents, and the Oklahoma Mortgage, each defined in the Loan Agreement, and
may now or hereafter be secured by one or more other security agreements,
mortgages, deeds of trust, assignments or other instruments or agreements
(collectively, the "Security Documents") to which Security Documents reference
is hereby made for a description of the security and a statement of the terms
and conditions upon which this Note is secured.
The Borrower hereby agrees to pay all costs of collection, including attorneys'
fees and legal expenses in the event this Note is not paid when due, whether or
not legal proceedings are commenced.
Presentment or other demand for payment, notice of dishonor and protest are
expressly waived.
This Note is an amendment, restatement and continuation of that certain
Revolving Credit Note of Borrower dated May 15, 2002 and payable to the order of
Bank in the original principal amount of up to $7,000,000.00 and is not a
novation thereof. All interest accrued on the instrument being amended and
restated by this Note shall continue to be due and owing to Bank until paid.
LMI AEROSPACE, INC.
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer
LMI FINISHING, INC.
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer
LEONARD'S METAL, INC.
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer
PRECISE MACHINE COMPANY
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer
TEMPCO ENGINEERING, INC.
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer
VERSAFORM CORP.
By -----------------------------------------
Lawrence E. Dickinson, Vice President and
Chief Financial Officer