FOURTH AMENDMENT
to that certain
SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
This FOURTH AMENDMENT, dated as of October 17, 2005 (this "Amendment"), is
made in connection with that certain Second Amended and Restated Credit and
Security Agreement, dated as of November 21, 2002 and amended and restated as of
January 2, 2004, and amended by that certain First Amendment to the Credit
Agreement, dated as of April 29, 2005, and by that certain Second Amendment to
the Credit Agreement, dated as of August 5, 2005, and by that certain Third
Amendment to the Credit Agreement, dated as of August 22, 2005 (as further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Columbus XxXxxxxx Corporation (the "Borrower"), Larco
Industrial Services Ltd., Columbus XxXxxxxx Limited, the Guarantors named
therein, the lending institutions party thereto, and Bank of America, N.A., as
Administrative Agent and Issuing Lender. Capitalized terms used herein and not
defined herein shall have the meanings ascribed thereto in the Credit Agreement.
WHEREAS, the Borrower has advised the Administrative Agent of its intention
to consummate an offering of up to $90,000,000 of its common stock on or before
December 31, 2005, or on such other date as may be reasonably acceptable to the
Administrative Agent (the "Equity Offering");
WHEREAS, the Borrower has requested that the Administrative Agent and the
Lenders (i) waive the requirement that the Net Cash Payments from such Equity
Offering be applied to prepay the Loans or permanently reduce the Revolving
Credit Commitment, (ii) consent to the use of the Net Cash Payments from such
Equity Offering to prepay the Senior Notes and for other purposes as
specifically set forth in this Amendment and (iii) agree to amend certain terms
and provisions of the Credit Agreement, as specifically set forth in this
Amendment; and
WHEREAS, the Lenders are willing to waive such requirement for the
prepayment of the Loans and the permanent reduction of the Revolving Credit
Commitment, consent to such prepayment of the Senior Notes and other uses of
such Net Cash Payments and amend certain terms and provisions of the Credit
Agreement, but only on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
1. AMENDMENTS.
(a) Section 1.1 of the Credit Agreement is hereby amended by:
(i) amending the definition of "EBITDA" by adding the following new
clause (vii) to the end of paragraph (b) of such definition:
"; and (vii) up to $2,500,000 of the amount of the premium paid by the
Borrower, in cash, in connection with the redemption of the Existing Senior
Subordinated Notes"; and
(ii) adding the following new definition thereto in the correct
alphabetical location:
"Equity Offering" means that certain equity offering of up to $90,000,000
of the Borrower's common stock, consummated on or before December 31, 2005, or
on such other date as may be reasonably acceptable to the Administrative
Agent.".
(b) Section 8.1(e)(i) of the Credit Agreement is hereby to read, in its
entirety, as follows:
"(i) with respect to all such outstanding Indebtedness in excess of
the local currency equivalent (as determined by the Agent from time by reference
to the Exchange Rate) of $5,000,000, the proceeds of such Indebtedness are
transferred to the Borrower and applied to the repayment of the Revolving
Loans,".
(c) Section 8.10(b) of the Credit Agreement is hereby amended by deleting
the table contained therein and substituting in lieu thereof the following:
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Period Ratio
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June 30, 2005 and each fiscal quarter ending thereafter prior to 4.25 to 1.00
the consummation of the Equity Offering
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The first fiscal quarter ending after the consummation of Equity 3.25 to 1.00
Offering and for each fiscal quarter ending thereafter
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2. WAIVER. The Administrative Agent and the Lenders hereby waive the
requirements of (a) Section 2.8(b)(ii) of the Credit Agreement that the Net Cash
Payments from the Equity Offering be applied to prepay the Loans and (b) Section
2.8(c)(ii) that the Revolving Credit Commitment be permanently reduced by the
amount of such Net Cash Payments.
3. CONSENT TO PREPAYMENT OF SENIOR NOTES. Notwithstanding anything to the
contrary contained in the Credit Agreement, the Administrative Agent and the
Lenders hereby consent to the application of the Net Cash Payments from the
Equity Offering to the redemption and/or prepayment of the outstanding principal
of the Senior Notes; provided that (i) the principal amount of Senior Notes
redeemed and/or prepaid, together with all premium paid in connection therewith
and all fees and expenses incurred in connection therewith, does not exceed the
amount of Net Cash Payments received from the Equity Offering and (ii) at the
time of such redemption and/or prepayment, no Default or Event of Default shall
have occurred and be continuing.
4. CONSENT REGARDING EXCESS NET CASH PAYMENTS. To the extent that the
amount of Net Cash Payments from the Equity Offering exceeds the amount applied
to the redemption and/or prepayment of the Senior Notes and the payment of
premium and fees and expenses incurred in connection therewith pursuant to
Section 3 above (the amount of such excess referred to herein as the "Excess Net
Cash Payments"), notwithstanding anything to the contrary contained in the
Credit Agreement, the Administrative Agent and the Lenders hereby consent to use
of such Excess Net Cash Payments for the following purposes, in each case, so
long as (i) no Default or Event of Default exists or would result after giving
effect to such use of the Excess Net Cash Payments and (ii) the aggregate amount
so expended does not exceed the amount of such Excess Net Cash Payments:
(a) the acquisition by the Borrower or by any Subsidiary of the Borrower
(in which case the Administrative Agent and the Lenders consent to the
contribution of such Excess Net Cash Payments from the Borrower to
such Subsidiary for the purpose of such acquisition) of any Person,
business or specified group of assets (the "Target"); provided that,
with respect to any such acquisition: (i) the consideration therefore
shall be paid (A) in cash or (B) with a combination (with, for the
avoidance of doubt, the parties hereto acknowledging and agreeing that
any consideration, including that in a form other than cash, shall
constitute use of Excess Net Cash Payments, reducing the remaining
amount of Excess Net Cash Payments available for additional
acquisitions), acceptable to the Administrative Agent, of cash and (x)
the Borrower's issuance of an unsecured note, (y) the issuance or
assumption of unsecured Indebtedness of the Target otherwise permitted
under the Credit Agreement and/or (z) the assumption of secured
Indebtedness of the Target; provided that (1) such Indebtedness is
outstanding prior to the consummation of such acquisition and is not
incurred in connection with such acquisition and (2) the liens
securing such Indebtedness only extend to the assets acquired pursuant
to such acquisition and not to any other assets of the Borrower or any
of its Subsidiaries; (ii) such acquisition shall have been approved by
the board of directors and shareholders, if required, of the Target;
(iii) the Target should be engaged in the same line of business as the
Borrower or a line of business substantially related thereto; (iv) the
Administrative Agent shall be reasonably satisfied with the terms and
conditions of such acquisition; (v) the Borrower shall have provided
to the Administrative Agent a Compliance Certificate in form and
substance satisfactory to it, demonstrating the Borrower's pro forma
compliance, after giving effect to such acquisition, with the
covenants set forth in Section 8.10; and (vi) the Borrower shall have
provided the Administrative Agent with all information reasonably
requested relating thereto and shall have taken all steps reasonably
requested by the Administrative Agent to, if the buyer in connection
with such acquisition is a Credit Party, assure the perfection and
priority of the Administrative Agent's lien in any Person or assets so
acquired;
(b) Investments made in connection with the Borrower's foreign expansion
strategy (which such Investments may include, for the avoidance of
doubt, investments, loans, advances (each of which may be used as
general working capital by the entities in which such Excess Net Cash
Payments were invested), and capital expenditures made in connection
with such foreign expansion strategy); and
(c) for the general corporate and working capital purposes of the Credit
Parties.
5. AFFIRMATION AND ACKNOWLEDGMENT. The Borrower hereby ratifies and
confirms all of its Obligations to the Lenders, including, without limitation,
the Loans, the Notes and the other Loan Documents, and the Borrower hereby
affirms its absolute and unconditional promise to pay to the Lenders all
Obligations under the Credit Agreement as amended hereby. Each Guarantor hereby
acknowledges and consents to this Amendment and agrees that its Guarantee
remains in full force and effect, and each such Guarantor confirms and ratifies
all of its Guarantee obligations under the Credit Agreement and the other Loan
Documents. The Borrower and the Guarantors hereby confirm that the Obligations
or Guarantee obligations under the Credit Agreement, as the case may be, are and
remain secured pursuant to the Credit Agreement and the Collateral Documents and
pursuant to all other instruments and documents executed and delivered by the
Borrower or such Guarantor, as security for the Obligations or Guarantee
obligations under the Credit Agreement, as the case may be.
6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lenders as follows:
(a) The execution and delivery by the Borrower and the Guarantors of this
Amendment, and the performance by the Borrower and the Guarantors of
their obligations and agreements under this Amendment and the Credit
Agreement as amended hereby, are within the corporate authority of the
Borrower and the Guarantors and, have been duly authorized by all
necessary corporate proceedings on behalf of the Borrower and the
Guarantors, and do not contravene any provision of law, statute, rule
or regulation to which the Borrower or any Guarantor is subject or the
Borrower's or any Guarantor's charter, other incorporation papers,
by-laws or any stock provision or any amendment thereof or of any
agreement or other instrument binding upon the Borrower or any
Guarantor.
(b) This Amendment and the Credit Agreement as amended hereby constitute
legal, valid and binding obligations of the Borrower and the
Guarantors, enforceable in accordance with their respective terms,
except as limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights or general principles of equity and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefore may be brought.
(c) Other than approvals or consents which have been obtained, no approval
or consent of, or filing with, any governmental agency or authority is
required to make valid and legally binding the execution, delivery or
performance by the Borrower of this Amendment, the Credit Agreement,
as amended hereby, or any pledge described herein.
(d) The representations and warranties contained in Section 5 of the
Credit Agreement are true and correct at and as of the date made and
as of the date hereof, except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the
other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse,
or to the extent that such representations and warranties relate
expressly to an earlier date.
(e) The Borrower has performed and complied in all material respects with
all terms and conditions herein required to be performed or complied
with by it prior to or at the time hereof, and as of the date hereof,
after giving effect to the provisions hereof, there exists no Event of
Default or Default.
7. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment shall
be conditioned upon (i) execution hereof by the Required Lenders and (ii) all
terms and conditions relating to the Equity Offering being in form and substance
satisfactory to the Administrative Agent.
8. COUNTERPARTS. This Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Amendment it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
9. DELIVERY BY FACSIMILE. This Amendment, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original
forms thereof and deliver them to all other parties. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine to
deliver a signature or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine as a
defense to the formation of a contract and each party forever waives such
defense.
10. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Amendment, all of the
terms, conditions and provisions of the Credit Agreement and the other Loan
Documents shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) This Amendment shall be construed according to and governed by the laws
of the Commonwealth of Massachusetts.
(c) Pursuant to Section 11.3 of the Credit Agreement, all costs and
expenses incurred or sustained by the Agent in connection with this Amendment,
including the fees and disbursements of legal counsel for the Agent in
producing, reproducing and negotiating this Amendment, will be for the account
of the Credit Parties whether or not this Amendment is consummated.
[Remainder of page intentional; signatures on next page]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be
executed as of the date first written above.
BORROWER
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COLUMBUS XXXXXXXX CORPORATION
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Treasurer and
Interim Chief Financial Officer
CANADIAN BORROWERS
------------------
LARCO INDUSTRIAL SERVICES LTD
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
COLUMBUS XXXXXXXX LIMITED
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GUARANTORS
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YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CRANE EQUIPMENT & SERVICE, INC.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
AUDUBON EUROPE S.A.R.L.
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager
By: /S/ Romain Thillens
-----------------------------------
Name: Romain Thillens
Title: Manager
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /S/ Xxxxxxx X'Xxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.
as Lender, Issuing Lender, and Cash
Management Bank
By: /S/ Xxxxxxx X'Xxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Vice President
CHARTER ONE BANK, NATIONAL ASSOCIATION
By: /S/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL)
By: /S/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /S/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL, A DIVISION OF
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By: /S/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
