SEVENTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this
"AMENDMENT"), dated as of June 25, 2001, is by and among COLUMBUS XXXXXXXX
CORPORATION, a New York corporation (the "BORROWER"), the banks, financial
institutions and other institutional lenders which are parties to the Credit
Agreement (as such term is defined below) (the "LENDERS"), FLEET NATIONAL BANK,
as Initial Issuing Bank (the "INITIAL ISSUING BANK"), FLEET NATIONAL BANK, as
the Swing Line Bank (the "SWING LINE BANK"; each of the Lenders, the Initial
Issuing Bank and the Swing Line Bank, individually, a "LENDER PARTY" and,
collectively, the "LENDER PARTIES"), and FLEET NATIONAL BANK, as administrative
agent (together with any successor appointed pursuant to Article VII of the
Credit Agreement, the "ADMINISTRATIVE AGENT") for the Lender Parties.
W I T N E S S E T H :
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WHEREAS, the Borrower, Lenders, Initial Issuing Bank, Swing Line Bank
and Administrative Agent are party to that certain Credit Agreement, dated as of
March 31, 1998, as amended by that certain First Amendment to Credit Agreement,
dated as of September 23, 1998, that certain Second Amendment to Credit
Agreement and Consent, dated as of February 12, 1999, that certain Third
Amendment to Credit Agreement and Consent, dated as of November 16, 1999, that
certain Fourth Amendment to Credit Agreement and Waiver, dated as of February
15, 2000, that certain Fifth Amendment to Credit Agreement, dated as of
September 28, 2000, and that certain Sixth Amendment to Credit Agreement and
Consent, dated as of February 5, 2001 (as so amended and as it may hereafter be
further amended, supplemented, restated, extended or otherwise modified from
time to time, the "CREDIT AGREEMENT");
WHEREAS, Events of Default exist under (i) Section 5.04(a) (Funded Debt
to EBITDA Ratio) of the Credit Agreement for the period of four fiscal quarters
ended March 31, 2001 based on an actual Funded Debt to EBITDA Ratio of 4.04 to
1.0 versus a required Funded Debt to EBITDA Ratio of 4.00 to 1.0 and (ii)
Section 5.04(d) (Minimum New Worth) as of March 31, 2001 based on an actual net
worth of $207,864,000 versus a required net worth of $209,045,000 (the Events of
Default described in clauses (i) and (ii), the "EXISTING EVENTS OF DEFAULT");
WHEREAS, the Borrower has requested that the Administrative Agent and
Lender Parties waive the Existing Event of Default;
WHEREAS, the Borrower has also requested that the Administrative Agent
and Lender Parties amend the Credit Agreement as and to the extent set forth in
this Amendment; and
WHEREAS, the Administrative Agent and Lender Parties are agreeable to
the foregoing, in each instance as and to the extent set forth in this Amendment
and subject to each of the terms and conditions stated herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants set forth herein and of the loans or other extensions of credit
heretofore, now or hereafter made to, or for the benefit of, the Borrower and
its Subsidiaries by the Lender Parties, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Except to the extent otherwise specified herein,
capitalized terms used in this Amendment shall have the same meanings ascribed
to them in the Credit Agreement.
2. WAIVER. The Administrative Agent and Lender Parties hereby waive the
Existing Events of Default under Sections 5.04(a) and 5.04(d) of the Credit
Agreement solely for the period of four fiscal quarters ended March 31, 2001 and
as of March 31, 2001, respectively. The foregoing waiver is only applicable and
shall only be effective in the specific instance and for the specific purpose
for which made. Such waiver is expressly limited to the facts and circumstances
referred to herein and shall not operate (a) as a waiver of or consent to
non-compliance with any other Section or provision of the Credit Agreement or
any other Loan Document, (b) as a waiver of any other right, power or remedy of
the Administrative Agent or any Lender Party under the Credit Agreement or any
other Loan Document or (c) as a waiver of or consent to any Default or Event of
Default under the Credit Agreement or any other Loan Document, other than as
expressly provided in this Section 2.
3. AMENDMENTS.
3.1. Section 1.01 of the Credit Agreement is amended by deleting from
the definition of "APPLICABLE MARGIN" the entire pricing chart contained therein
and replacing it with the following chart:
APPLICABLE MARGIN APPLICABLE MARGIN APPLICABLE MARGIN
RATIO OF FUNDED DEBT TO FOR PRIME RATE FOR EURODOLLAR FOR COMMITMENT
EBITDA ADVANCES RATE ADVANCES FEE
----------------------------- ----------------- ----------------- -----------------
Equal to or greater than 4.00 0.875% 2.500% 0.375%
Equal to or greater than 3.50
less than 4.00 0.625% 2.250% 0.350%
Equal to or greater than 3.00
less than 3.50 0.375% 2.000% 0.300%
Equal to or greater than 2.50
less than 3.00 0.125% 1.750% 0.200%
Less than 2.50 0.125% 1.375% 0.150%
3.2. Section 1.01 of the Credit Agreement is amended by inserting the
following definition in the proper alphabetical order:
"SEVENTH AMENDMENT" means that certain Seventh Amendment to Credit
Agreement, dated as of June 25, 2001, by and among the Borrower, the
Administrative Agent and the Lenders and other Lender Parties.
3.3. Section 1.03 of the Credit Agreement is amended by inserting the
following sentence at the end thereof:
"Notwithstanding the foregoing, solely for purposes of determining
compliance with the financial covenants set forth in Section 5.04 of
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this Agreement, the Borrower may add back to the calculations of
Consolidated EBITDA the amount of non-recurring "restructuring charges"
(as defined by and determined in accordance with GAAP) that was
deducted from such calculations, but in no event shall the amount added
back exceed $12,000,000 for the fiscal year ending March 31, 2002 or
$8,000,000 for the fiscal year ending March 31, 2003."
3.4. Section 2.05 (b)(i) of the Credit Agreement is amended by
inserting the following sentence at the end thereof:
"The Revolving Credit Facility shall be automatically and permanently
reduced on the closing date of the Seventh Amendment by $25,000,000,
such reduction to be made ratably among the Revolving Credit Lenders in
accordance with their Revolving Credit Commitments."
3.5. Section 2.06 (b)(i) of the Credit Agreement is amended by
inserting the following sentence at the end thereof:
"On the closing date of the Seventh Amendment, the Borrower shall
prepay the amount, if any, equal to the excess of (A) the aggregate
principal amount of the Revolving Credit Advances plus the aggregate
Dollar Equivalent of Alternative Currency Revolving Credit Advances
plus the aggregate principal amount of Swing Line Advances plus the
aggregate principal amount of Letter of Credit Advances plus the
aggregate principal amount of Alternative Currency Letter of Credit
Advances plus the aggregate Available Amount of all Letters of Credit,
including, without limitation, all Existing Letters of Credit, plus the
aggregate Available Amount of all Alternative Currency Letters of
Credit, in each instance, as then outstanding, after giving effect to
any Advances or renewals on such date, over (B) the Revolving Credit
Facility after giving effect to the permanent reduction thereof on such
date in accordance with Section 2.05(b)(i)."
3.6. Section 5.04(a) of the Credit Agreement is amended by deleting
from the chart contained therein the dates from and including June 30, 2001 and
the corresponding ratios for such dates and replacing them with the following:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------ -----
June 30, 2001 4.40 to 1.0
September 30, 2001 4.35 to 1.0
December 31, 2001 4.10 to 1.0
March 31, 2002 4.00 to 1.0
June 30, 2002 3.75 to 1.0
September 30, 2002 and each fiscal
quarter end thereafter 3.50 to 1.0.
3.7. Section 5.04(b) of the Credit Agreement is amended by deleting
from the chart contained therein the dates from and including June 30, 2001 and
the corresponding ratios for such dates and replacing them with the following:
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FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------ -----
June 30, 2001 2.25 to 1.0
September 30, 2001 2.25 to 1.0
December 31, 2001 2.35 to 1.0
March 31, 2002 2.50 to 1.0
June 30, 2002 2.75 to 1.0
September 30, 2002 and each fiscal
quarter end thereafter 3.00 to 1.0.
3.8. Section 5.04(d) of the Credit Agreement is amended be deleting
such Section in its entirety and replacing it with the following:
"(d) MINIMUM NET WORTH. Maintain, as of the last day of each fiscal
quarter, an excess of Consolidated total assets over Consolidated total
liabilities of the Borrower and its Subsidiaries of not less than (i)
$200,000,000, plus (ii) 75% of Consolidated positive net income (and
excluding 100% of Consolidated net losses) of the Borrower and its
Subsidiaries since March 31, 2001 to and including each date of
determination computed on a cumulative basis for said entire period."
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
4.1. Each of the representations and warranties set forth in the
Credit Agreement, including, without limitation, in Article IV of the Credit
Agreement, and in each other Loan Document, is true, correct and complete on and
as of the date hereof as though made on the date hereof. In addition, the
Borrower hereby represents, warrants and affirms that the Credit Agreement and
each of the other Loan Documents remains in full force and effect.
4.2. As of the date hereof after giving effect to this Amendment,
there exists no Default or Event of Default under the Credit Agreement or any
other Loan Document, and no event which, with the giving of notice or lapse of
time, or both, would constitute a Default or Event of Default.
4.3. The execution, delivery and performance by each applicable Loan
Party of this Amendment and/or the reaffirmations and confirmations attached
hereto and each other Loan Document and the consummation of each of the
transactions consented to in Sections 3.1 and 3.2 of this Amendment by each
applicable Loan Party are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action, and do not, and will not, (i)
contravene such Loan Party's charter or bylaws, (ii) violate any law (including,
without limitation, the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended), rule, regulation (including, without
limitation, any Regulation of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default under,
any material contract, loan agreement, indenture (including, without limitation,
the Senior Subordinated Note Indenture), mortgage, deed of trust, lease or other
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material instrument or agreement binding on or affecting any Loan Party, any of
its Subsidiaries or any of their respective properties or (iv) except for the
Liens created under the Collateral Documents, result in or require the creation
or imposition of any Lien upon or with respect to any of the properties of any
Loan Party or any of its Subsidiaries. Neither any Loan Party nor any of its
Subsidiaries is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture (including, without limitation, the Senior
Subordinated Note Indenture), mortgage, deed of trust, lease or other instrument
or agreement, the violation or breach of which could reasonably be expected to
have a Material Adverse Effect.
4.4. Each of this Amendment and each other Loan Document has been duly
executed and delivered by each Loan Party party hereto and thereto. Each of this
Amendment and each other Loan Document is the legal, valid and binding
obligation of each Loan Party party hereto and thereto, enforceable against such
Loan Party in accordance with its terms.
4.5. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Amendment, any other Loan Document or any
other agreement or document related hereto or thereto or contemplated hereby or
thereby to which it is or is to be a party or otherwise bound, (ii) the grant by
any Loan Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created by the Collateral
Documents (including the first priority nature thereof) or (iv) the exercise by
the Administrative Agent or any Lender Party of its rights under the Loan
Documents or remedies in respect of the Collateral pursuant to the Collateral
Documents.
5. CONDITIONS PRECEDENT TO THIS AMENDMENT. The effectiveness of this
Amendment is subject to the satisfaction, in form and substance satisfactory to
the Administrative Agent, of each of the following conditions precedent:
5.1. The Borrower and Required Lenders shall have duly executed and
delivered this Amendment and each other Loan Party shall have duly executed the
Acknowledgment and Ratification in connection with this Amendment
5.2. After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
5.3. The representations and warranties contained in Section 4 of this
Amendment, the Credit Agreement and each other Loan Document shall be true,
correct and complete on and as of the closing date of this Amendment as though
made on such date.
5.4. The Borrower shall have paid an amendment fee to the
Administrative Agent, for the account of each Lender which has approved this
Amendment, as evidenced by such Lender's timely execution and delivery of a
counterpart signature page to this Amendment (each such Lender being an
"APPROVING LENDER"), in an amount equal to 0.20% (i.e. 20 basis points) of such
Approving Lender's Revolving Credit Commitment (after giving effect to the
$25,000,000 aggregate reduction in Revolving Credit Commitments pursuant to this
Amendment).
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5.5. The Borrower and its Subsidiaries shall have delivered such other
documents and taken such other actions as the Administrative Agent may
reasonably request.
6. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS.
6.1. Except as specifically amended in Section 3 above, the Credit
Agreement and each of the other Loan Documents shall remain in full force and
effect and each is hereby ratified and confirmed.
6.2. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or any
other word or words of similar import shall mean and be a reference to the
Credit Agreement as amended hereby, and each reference in any other Loan
Document to the Credit Agreement or any word or words of similar import shall
mean and be a reference to the Credit Agreement as amended hereby.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument. Delivery of
an executed counterpart to this Amendment by telecopier shall be as effective as
delivery of a manually executed counterpart of this Amendment.
8. COSTS AND EXPENSES. The Borrower shall pay on demand all reasonable
fees, costs and expenses incurred by Administrative Agent (including, without
limitation, all reasonable attorneys' fees) in connection with the preparation,
execution and delivery of this Amendment and the taking of any actions by any
Person in connection herewith.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF
THE STATE OF NEW YORK.
10. HEADINGS. Article headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized on the date
first above written.
COLUMBUS XXXXXXXX CORPORATION
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President
ACKNOWLEDGMENT AND RATIFICATION
The undersigned hereby acknowledge and agree to this Amendment, and
agree that the Guaranty, the Security Agreement, and the Intellectual Property
Security Agreement, and each other Loan Document executed by the undersigned
shall remain in full force and effect and each is hereby ratified and confirmed
by and on behalf of the undersigned, this 25th day of June 2001.
AUTOMATIC SYSTEMS, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
LICO STEEL, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
XXXXXX, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
HANDLING SYSTEMS AND CONVEYORS, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
LENDERS
FLEET NATIONAL BANK, as Administrative
Agent, Initial Issuing Bank, Swing Line Bank
and Lender
By: /S/ XXXX X. XXXXXX
----------------------------
Name: XXXX X. XXXXXX
--------------------------
Title: VICE PRESIDENT
-------------------------
LENDERS
ABN-AMRO BANK N.V.,
as a Co-Agent and Lender
By: /S/ JULIETTE MOUND
---------------------------
Name: JULIETTE MOUND
-------------------------
Title: VICE PRESIDENT
------------------------
By: /S/ XXXXX X. XXXXXXX
---------------------------
Name: XXXXX XXXXXXX
-------------------------
Title: GROUP VICE PRESIDENT
------------------------
LENDERS
THE BANK OF NOVA SCOTIA, as a Co-Agent and
Lender
By: /S/ XXXXXX X. XXXXXXX
---------------------------
Name: XXXXXX X. XXXXXXX
-------------------------
Title: DIRECTOR
------------------------
LENDERS
MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Co-Agent and Lender
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------
Name: XXXXXXX X. XXXXXXXX
-------------------------
Title: ASSISTANT VICE PRESIDENT
------------------------
LENDERS
HSBC BANK USA (formerly known as Marine
Midland Bank), as a Co-Agent and Lender
By: /S/ XXX XXXXX
---------------------------
Name: XXX XXXXX
-------------------------
Title: VICE PRESIDENT
------------------------
LENDERS
COMERICA BANK
By: /S/ XXXX X. XXXXXX
---------------------------
Name: XXXX X. XXXXXX
-------------------------
Title: ACCOUNT OFFICER
------------------------
LENDERS
FIRST UNION NATIONAL BANK
By: /S/ XXXXX X. XXXXXXXX
---------------------------
Name: XXXXX X. XXXXXXXX
-------------------------
Title: SENIOR VICE PRESIDENT
------------------------
LENDERS
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXX X. XXXXX
---------------------------
Name: XXXX X. XXXXX
-------------------------
Title: VICE PRESIDENT
------------------------
LENDERS
MELLON BANK, N.A.
By: /S/ XXXXXX X. XXXXXXXX
---------------------------
Name: XXXXXX X. XXXXXXXX
-------------------------
Title: VICE PRESIDENT
------------------------
LENDERS
BANKERS TRUST COMPANY
By: /S/ XXXXX X. LE FEVRE
---------------------------
Name: XXXXX X. LE FEVRE
-------------------------
Title: DIRECTOR
------------------------
LENDERS
THE BANK OF NEW YORK
By: /S/ XXXXXXXXX X. RIO
---------------------------
Name: XXXXXXXXX X. RIO
-------------------------
Title: VICE PRESIDENT
------------------------
LENDERS
NATIONAL BANK OF CANADA
By: /S/ XXX XXXX
---------------------------
Name: XXX XXXX
-------------------------
Title: VICE PRESIDENT
------------------------
By: /S/ XXXX XXXXXXX
---------------------------
Name: XXXX XXXXXXX
-------------------------
Title: ASSISTANT VICE PRESIDENT
------------------------
LENDERS
NATIONAL CITY BANK OF PENNSYLVANIA
By: /S/ XXXXXXX X. XXXXXXX
---------------------------
Name: XXXXXXX X. XXXXXXX
-------------------------
Title: VICE PRESIDENT
------------------------
