SIXTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this "AMENDMENT"),
dated as of February 5, 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 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, and that certain Fifth Amendment to Credit Agreement, dated as of
September 28, 2000 (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, an Event of Default exists under Section 5.04(b) (Interest
Coverage Ratio) of the Credit Agreement for the period of four fiscal quarters
ended December 31, 2000 (the "EXISTING EVENT OF DEFAULT") based on an actual
Interest Coverage Ratio of 2.70 to 1.0 versus a required Interest Coverage Ratio
of 2.75 to 1.0;
WHEREAS, the Borrower has requested that the Administrative Agent and
Lender Parties waive the Existing Event of Default;
WHEREAS, for administrative simplicity, operational efficiency and other
reasons, the Borrower has proposed making certain changes in the organizational
structure of the Borrower and its Subsidiaries, including (a) the merger of G.L.
International Inc. ("GL") with and into Xxxxxx, Inc. ("XXXXXX"), with Xxxxxx as
the surviving corporation (the "GL MERGER"), (b) the merger of Xxxxx-Xxxx Xxxxx,
Inc. ("XXXXX-XXXX") with and into Xxxxxx, with Xxxxxx as the surviving
corporation (the "XXXXX-XXXX MERGER"), (c) the merger of Washington Equipment
Company ("WECO") with and into Xxxxxx, with Xxxxxx as the surviving corporation
(the "WECO MERGER"), and (d) the transfer of ownership of all of the issued and
outstanding shares of stock of Handling Systems and Conveyors, Inc. ("HSC") from
GL to Automatic Systems, Inc. ("ASI") (the "HSC TRANSFER");
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 Event of Default under Section 5.04(b) of the Credit Agreement solely
for the period of four fiscal quarters ended December 31, 2000. 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. CONSENT.
3.1. Notwithstanding the provisions of Section 5.01(f) (Preservation of
Corporate Existence, Etc.), Section 5.02(d) (Fundamental Changes) and Section
5.02(f) (Investments in Other Persons) of the Credit Agreement, but subject to
the conditions precedent set forth in Section 3.3 and the other terms and
conditions of this Amendment, the Administrative Agent and Lender Parties hereby
consent to (a) the GL Merger, (b) the Xxxxx-Xxxx Merger, (c) the WECO Merger and
(d) the HSC Transfer.
3.2. Notwithstanding the provisions of Section 5.02 (i) (Charter
Amendments) of the Credit Agreement, but subject to the conditions precedent set
forth in Section 3.3 and the other terms and conditions of this Amendment, the
Administrative Agent and Lender Parties hereby consent to any amendments to the
certificate or articles of incorporation and bylaws of Xxxxxx, XX, Xxxxx-Xxxx,
WECO and HSC, as the case may be, that are reasonably necessary to carry out the
GL Merger, the Xxxxx-Xxxx Merger, the WECO Merger or the HSC Transfer, as the
case may be, or that are reasonably proposed by the Borrower in connection with
any of the foregoing, in each instance to the extent, and solely to the extent,
that such amendments are in form and substance reasonably acceptable to the
Administrative Agent.
3.3. Each transaction consented to in Section 3.1 and 3.2 above is
subject to the satisfaction, as determined by the Administrative Agent, of each
of the following conditions precedent:
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(a) The Borrower shall have delivered to the Administrative
Agent such Amended and Restated Schedules to each of the Credit Agreement
Security Agreement and Intellectual Property Security Agreement and related
documentation as are necessary to replace each of such existing Schedules
which, upon the consummation of such transaction, would no longer be true,
correct and complete, including, by way of example only and not of
limitation, to the extent applicable:
(i) Schedule 3.01 (a) (ix) to the Credit Agreement,
States in which Loan Parties are Qualified to do Business;
(ii) Schedule 4.01 (b) to the Credit Agreement,
Subsidiaries;
(iii) Schedule 4.01 (k) to the Credit Agreement, Plans,
Multiemployer Plans and Welfare Plans;
(iv) Schedule 4.01 (bb) to the Credit Agreement, Owned
Real Estate;
(v) Schedule 4.01 (cc) to the Credit Agreement, Leased
Real Estate;
(vi) Schedule 4.01 (ff) to the Credit Agreement,
Intellectual Property;
(vii) Schedule I to the Security Agreement, Pledged Shares
and Pledged Debt;
(viii) Schedule III to the Security Agreement, Locations of
Equipment and Inventory;
(ix) Schedule IV to the Security Agreement, Trade Names;
(x) Schedule I to the Intellectual Property Security
Agreement, Patents and Patent Applications;
(xi) Schedule II to the Intellectual Property Security
Agreement, Trademark Registrations and Applications;
(xii) Schedule III to the Intellectual Property Security
Agreement Copyright Registrations and Applications; and
(xiii) Schedule IV to the Intellectual Property Security
Agreement, Licenses.
(b) The Borrower shall, and shall have caused each of its
Domestic Subsidiaries to, have executed and delivered such agreements,
instruments, and other documents, including, without limitation, UCC-1
financing statements, UCC-3 amendments to financing statements, amendments
to intellectual property filings, stock certificates and stock powers, as
shall be necessary or as the Administrative Agent shall have otherwise
requested in order to maintain the perfected first priority status of the
Administrative Agent's security interests, on behalf of the Lender Parties,
in the Collateral of the Borrower and its Domestic Subsidiaries.
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(c) As of the date of the consummation of such transaction, no
Default or Event of Default shall have occurred and be continuing.
(d) The representations and warranties contained in Section 5
of this Amendment, the Credit Agreement and each other Loan Document shall
be true, correct and complete on and as of the date of the consummation of
such transaction, as though made on such date.
(e) The Borrower shall, and shall have caused its Subsidiaries
to, have taken all such actions and executed and delivered all such
agreements, instruments, legal opinions (including, without limitation, an
opinion that none of such transactions violates the Senior Subordinated
Note Indenture) and other documents as the Administrative Agent shall have
reasonably requested in connection with such transaction.
3.4. The foregoing consents in Sections 3.1 and 3.2 are only applicable
and shall only be effective in the specific instances and for the specific
purposes for which made. Such consents are expressly limited to the facts and
circumstances and subject to the conditions 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 right, power or remedy of either 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 Event of Default or Default under the Credit Agreement or
any other Loan Document.
4. AMENDMENTS.
4.1. 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
FOR PRIME RATE FOR EURODOLLAR FOR COMMITMENT
RATIO OF FUNDED DEBT TO EBITDA ADVANCES RATE ADVANCES FEE
------------------------------ ------------------- ------------------- -------------------
Equal to or greater than 4.00 .... 0.75% 2.375% 0.375%
Equal to or greater than 3.50 less
than 4.00 .................... 0.50% 2.125% 0.350%
Equal to or greater than 3.00 less
than 3.50 .................... 0.25% 1.875% 0.300%
Equal to or greater than 2.50 less
than 3.00 .................... 0.00% 1.625% 0.200%
Less than 2.50 ................... 0.00% 1.250% 0.150%
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4.2. Section 1.01 of the Credit Agreement is amended by inserting the
following definition in the proper alphabetical order:
"SIXTH AMENDMENT" means that certain Sixth Amendment to Credit
Agreement and Consent, dated as of February 5, 2001, by and among
the Borrower, the Administrative Agent and the Lenders and other
Lender Parties.
4.3. Section 2.05(b)(i) of the Credit Agreement is amended by deleting
such section in its entirety and replacing it with the following:
"The Revolving Credit Facility shall be automatically and
permanently reduced on the date of the Sixth Amendment by
$50,000,000, such reduction to be made ratably among the
Revolving Credit Lenders in accordance with their Revolving
Credit Commitments."
4.4. Section 2.06(b)(i) of the Credit Agreement is amended by deleting
such section in its entirety and replacing it with the following:
"On the date of the Sixth 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)."
4.5. Section 5.04 (a) of the Credit Agreement is amended by deleting
from the chart contained therein the dates from and including March 31, 2001 and
the corresponding ratios for such dates and replacing them with the following:
March 31, 2001 4.00 to 1.0
June 30, 2001 4.00 to 1.0
September 30, 2001 3.75 to 1.0
December 31, 2001 3.50 to 1.0
March 31, 2002 and each fiscal
quarter end thereafter 3.50 to 1.0.
4.6. Section 5.04 (b) of the Credit Agreement is amended by deleting
from the chart contained therein the dates from and including March 31, 2001 and
the corresponding ratios for such dates and replacing them with the following:
FOUR FISCAL QUARTERS ENDING ON: RATIO
March 31, 2001 2.50 to 1.0
June 30, 2001 2.50 to 1.0
September 30, 2001 2.50 to 1.0
December 31, 2001 2.75 to 1.0
March 31, 2002 2.75 to 1.0
June 30, 2002 and each fiscal
quarter end thereafter 3.00 to 1.0.
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5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
5.1. 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.
5.2. 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.
5.3. The execution, delivery and performance by each applicable Loan
Party of this Amendment 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,
Regulation T, U or X 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
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.
5.4. 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.
5.5. 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.
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6. 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:
6.1. 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
6.2. After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
6.3. The representations and warranties contained in Section 5 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.
6.4. 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 0.125% (i.e. 12.5 basis points) of
such Approving Lender's Revolving Credit Commitment.
6.5. The Borrower and its Subsidiaries shall have delivered such other
documents and taken such other actions as the Administrative Agent may
reasonably request.
7. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS
7.1. Except as specifically amended in Section 4 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.
7.2. 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.
8. 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.
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9. 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.
10. 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.
11. 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
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 5th day of February 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
XXXXX-XXXX XXXXX, INC.
By: /S/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
G.L. INTERNATIONAL 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
WASHINGTON EQUIPMENT COMPANY
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
--------------------------------
Xxxx X. Xxxxxx
Title: Vice President
Lenders
ABN-AMRO BANK N.V. NEW YORK
BRANCH, as a Co-Agent and Lender
By: /S/ Juliette Mound
---------------------------------
Title: Assistant Vice President
---------------------------------
By: /S/ Xxxxxx Xxxxxx
---------------------------------
Title: Group Vice President and Director
---------------------------------
Lenders
THE BANK OF NOVA SCOTIA, as a Co-Agent and
Lender
By: /S/ J. Xxxx Xxxxxxx
--------------------------------
Title: Managing Director
--------------------------------
Lenders
MANUFACTURERS AND TRADERS TRUST COMPANY, as
a Co-Agent and Lender
By: /S/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
--------------------------------
Lenders
HSBC BANK USA (formerly known as Marine
Midland Bank), as a Co-Agent and Lender
By: /S/ Xxx Xxxxx
--------------------------------
Title: Vice President
--------------------------------
Lenders
COMERICA BANK
By: /S/ Xxxx X. Xxxxxx
--------------------------------
Title: Account Officer
--------------------------------
Lenders
FIRST UNION NATIONAL BANK
By: /S/ Xxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
--------------------------------
Lenders
KEYBANK NATIONAL ASSOCIATION
By: /S/ Xxxx X. Xxxxx
--------------------------------
Title: Vice President
--------------------------------
Lenders
MELLON BANK, N.A.
By: /S/ Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
Lenders
BANKERS TRUST COMPANY
By: /S/ Xxxxx X. Xxxxx
--------------------------------
Title: Vice President
--------------------------------
Lenders
THE BANK OF NEW YORK
By: /S/ Xxxx Xxxxxxx
--------------------------------
Title: Assistant Vice President
--------------------------------
Lenders
NATIONAL BANK OF CANADA
By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
By: /S/ X. Xxxxx
--------------------------------
Title: Vice President and Manager
--------------------------------
Lenders
NATIONAL CITY BANK OF PENNSYLVANIA
By: /S/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
