THIRD AMENDMENT
to that certain
SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
This THIRD AMENDMENT (this "AMENDMENT"), dated as of August 22, 2005, to
that certain Second Amended and Restated Credit and Security Agreement, dated as
of January 2, 2004 (as amended by that certain First Amendment to that certain
Second Amended and Restated Credit and Security Agreement, dated as of April 29,
2005, by that certain Second Amendment to that certain Second Amended and
Restated Credit and Security Agreement, dated as of August 5, 2005, and as
further modified and supplemented and in effect from time to time, the "CREDIT
AGREEMENT"), among Columbus XxXxxxxx Corporation, a corporation organized under
the laws of New York (the "BORROWER"), Larco Industrial Services Ltd., a
business corporation organized under the laws of the Province of Ontario,
Columbus XxXxxxxx Limited, a business corporation organized under the laws of
Canada, the Guarantors from time to time party thereto, the Lenders from time to
time party thereto (collectively, the "LENDERS"), Bank of America, N.A., as
Administrative Agent for such Lenders (the "AGENT") and as Issuing Lender.
WHEREAS, the Borrower has requested that the Agent and the Lenders agree to
amend certain of the terms and provisions of the Credit Agreement, as
specifically set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall have
the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS.
(a) Section 7.9 of the Credit Agreement is hereby amended by adding the
following text immediately following the text "Existing Indebtedness":
", a portion of the Existing Senior Subordinated Notes (solely to the
extent permitted pursuant to Section 8.6(e))"
(b) Section 8.6(e) of the Credit Agreement is hereby amended to read, in
its entirety, as follows:
"(e) prepayments of principal of the Existing Senior Subordinated
Notes so long as (A) no Default shall have occurred or be continuing
and no Default shall be caused thereby, (B) the Credit Parties shall
be in compliance with each of the financial covenants set forth in
Section 8.10 for the most recent applicable period ended prior to such
payment, (C) the Fixed Charge Coverage Ratio for the period of two (2)
quarters ending prior to such payment, calculated on a pro forma basis
giving effect to the making of such payment of principal (as if such
payment were made on the first day of such period and including the
amount of such payment in clause (b)(ii) of the definition of "Fixed
Charge Coverage Ratio" in the calculation of Fixed Charge Coverage
Ratio as if they were scheduled or required payments) shall not be
less than 1.25:1.00, and the Credit Parties shall deliver a Compliance
Certificate prior to such payment demonstrating such Fixed Charge
Coverage Ratio, (D) Domestic Excess Availability, calculated on a pro
forma basis after giving effect to such payment shall not be less than
$15,000,000, and the Agent shall have received a Borrowing Base
Certificate demonstrating the same, (E) the number of days of average
outstandings for the Borrower's accounts payable over the three (3)
month period prior to such payment shall not exceed thirty five (35),
(F) the Agent shall have received evidence that the Credit Parties
have obtained all necessary consents from the holders of the Senior
Notes with respect to such payment and shall have received a legal
opinion, covering such matters relating to such payment as the Agent
shall reasonably request, (G) the Credit Parties shall have closed a
tender offer with respect to all Existing Senior Subordinated Notes
that remain outstanding after giving effect to such payment, and (H)
the aggregate amount of such prepayments shall not be greater than
$145,000,000; PROVIDED THAT not more than $13,000,000 of such
prepayments may be funded with the proceeds of Revolving Credit
Loans.".
3. 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.
4. 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 therefor 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.
5. RATIFICATION, ETC. Except as expressly amended or waived hereby, the
Credit Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Amendment and the Credit Agreement
shall hereafter be read and construed together as a single document, and all
references in the Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended by
this Amendment.
6. EFFECTIVENESS. This Amendment shall become effective as of the date
first written above upon the Agent's receipt of this Amendment signed by the
Borrower, the Guarantors, the Agent and the Required Lenders.
7. 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.
8. 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.
9. 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 THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned have duly executed this
Amendment as of the date first set forth above.
BORROWER
--------
COLUMBUS XXXXXXXX CORPORATION
By: /S/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Treasurer
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/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx 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: Agency Management Officer
BANK OF AMERICA, N.A.
as Lender, Issuing Lender, and Cash
Management Bank
By: /S/ Xxxxxxx X. X'Xxxxx
------------------------------------------
Name: Xxxxxxx X. 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/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Administrative 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
