THIRD AMENDMENT
TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of July 17, 1997, 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 BANK, as Initial Issuing Bank (the
"Initial Issuing Bank"), FLEET 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 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 :
WHEREAS, the Borrower, Lenders, Initial Issuing Bank, Swing Line Bank
and Administrative Agent are party to that certain Credit Agreement, dated as of
October 16, 1996, as amended by that certain First Amendment to Credit
Agreement, dated as of December 18, 1996, and as further amended by that certain
Second Amendment to Credit Agreement and Consent, dated as of March 27, 1997 (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, the Borrower and its Subsidiaries have requested that the
Administrative Agent and Lender Parties amend the Credit Agreement in order to,
among other things, modify certain pricing terms thereunder, eliminate the
Borrowing Base requirement therefrom and modify certain visitation rights of the
Administrative Agent, on behalf of the Lender Parties, granted thereby;
WHEREAS, the Administrative Agent and Lender Parties are agreeable to
the foregoing, including, without limitation, modification of certain pricing
terms under the Credit Agreement, elimination of the Borrowing Base requirement
therefrom and modification of certain visitation rights, in each instance as and
to the extent set forth in this Amendment and subject to each of the terms and
conditions stated herein; and
WHEREAS, the Borrower and each of its Subsidiaries will benefit from
the changes to the Credit Agreement proposed pursuant to this Amendment.
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,
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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. AMENDMENTS.
2.1 The definition of "Applicable Margin" set forth in Section
1.01 of the Credit Agreement is amended by deleting such existing definition in
its entirety and replacing it with the following:
"`Applicable Margin' means at any time and from time to time a
percentage per annum determined by reference to the ratio of Funded
Debt to EBITDA for the four full fiscal quarters preceding such
determination, as set forth below:
Applicable Margin for Term A Advances and Working Capital Advances
------------------------------------------------------------------
Ratio of Funded Applicable Margin for Applicable Margin for
Debt to EBITDA Prime Rate Advances Eurodollar Advances
--------------- --------------------- ---------------------
Equal to or greater
than 4.00 .75% 2.00%
Equal to or greater than
3.75, but less than 4.00 .50% 1.75%
Equal to or greater than
3.25, but less than 3.75 .25% 1.50%
Equal to or greater than
2.75, but less than 3.25 .00% 1.25%
Equal to or greater than
2.25, but less than 2.75 .00% .875%
Less than 2.25 .00% .625%
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Applicable Margin for Term B Advances
-------------------------------------
Ratio of Funded Applicable Margin for Applicable Margin for
Debt/EBITDA Prime Rate Advances Eurodollar Advances
--------------- --------------------- ---------------------
Equal to or greater
than 4.00 1.75% 2.50%
Equal to or greater than
3.75, but less than 4.00 1.75% 2.25%
Equal to or greater than
3.25, but less than 3.75 1.75% 2.00%
Equal to or greater than
2.75, but less than 3.25 1.75% 1.75%
Equal to or greater than
2.25, but less than 2.75 1.75% 1.75%
Less than 2.25 1.75% 1.75%
All Swing Line Advances will be Prime Rate Advances, with a margin
equal to that of a Term A Advance or a Working Capital Advance.
The Applicable Margin for each Prime Rate Advance and each Eurodollar
Rate Advance shall be determined by reference to the Ratio of Funded
Debt to EBITDA which shall be determined three Business Days after the
date on which the Administrative Agent receives financial statements
pursuant to Section 5.03(c) or (d) and a certificate of the chief
financial officer of the Borrower demonstrating the Ratio of Funded
Debt to EBITDA. If the Borrower has not submitted to the Administrative
Agent the information described above as and when required under
Section 5.03(c) or (d), as the case may be, the Applicable Margin shall
be as determined by the Administrative Agent for so long as such
information has not been received by the Administrative Agent."
2.2 Section 1.01 of the Credit Agreement is amended by
deleting from such existing Section the definition of "Borrowing Base" in its
entirety.
2.3 Section 1.01 of the Credit Agreement is amended by
deleting from such existing Section the definition of "Borrowing Base
Certificate" in its entirety.
2.4 Section 1.01 of the Credit Agreement is amended by
deleting from such existing Section the definition of "Borrowing Base
Deficiency" in its entirety.
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2.5 Section 1.01 of the Credit Agreement is amended by
deleting from such existing Section the definition of "Eligible Inventory" in
its entirety.
2.6 Section 1.01 of the Credit Agreement is amended by
deleting from such existing Section the definition of "Eligible Receivables" in
its entirety.
2.7 The first sentence of Section 2.08(a) of the Credit
Agreement is amended by deleting the clause beginning with the words ".50% per
annum" on the seventh line of such Section and ending on the eleventh line of
such Section with "Working Capital Facility." and replacing such clause with the
following:
"the applicable percentage per annum (set forth in the table below
across from the applicable ratio of Funded Debt to EBITDA) on the
average daily Unused Working Capital Commitment of such Lender:
Ratio of Funded Debt Commitment Fee
to EBITDA Percentage
-------------------- --------------
Equal to or greater
than 4.00 .500%
Equal to or greater than
3.75, but less than 4.00 .375%
Equal to or greater than
3.25, but less than 3.75 .375%
Equal to or greater than
2.75, but less than 3.25 .300%
Equal to or greater than
2.25, but less than 2.75 .250%
Less than 2.25 .200%.
The ratio of Funded Debt to EBITDA shall be determined in the same
manner as such ratio is determined with respect to the Applicable
Margin for the Term A Facility or the Working Capital Facility."
2.8 (a) Section 2.08(d)(i) of the Credit Agreement is amended
by adding the phrase ", other than a Trade Letter of Credit," after the phrase
"any such Letter of Credit" in the fifth line of such Section.
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(b) Section 2.08(d)(i) of the Credit Agreement
is further amended by adding the phrase "but excluding all Trade Letters of
Credit," after the phrase "all Existing Letters of Credit," in the seventh line
of such Section.
(c) Section 2.08(d) of the Credit Agreement is
amended by renumbering existing Section 2.08(d)(ii) to be Section 2.08(d)(iii).
(d) Section 2.08(d) of the Credit Agreement is
further amended by adding a new Section 2.08(d)(ii) immediately following
Section 2.08(d)(i) and immediately prior to old Section 2.08(d)(ii), which is
being amended pursuant to subparagraph (c) above to be Section 2.08(d)(iii).
New Section 2.08(d)(ii) shall read in its entirety as follows:
"(ii) The Borrower shall pay to the Administrative Agent for
the account of each Working Capital Lender a commission, payable in
arrears quarterly on the last Business Day of each March, June,
September and December, and on the earliest to occur of the full
drawing, expiration, termination or cancellation of any such Trade
Letter of Credit and on the Working Capital Termination Date, on such
Lender's Pro Rata Share of the average daily aggregate Available Amount
during such quarter of all Trade Letters of Credit outstanding from
time to time, at a rate per annum equal to .25%; provided, however,
that the minimum commission per Trade Letter of Credit shall be $75."
2.9 (a) Section 2.12(e) of the Credit Agreement is amended by
deleting the word "or" before "4224" in the eighth line of such Section and
replacing it with a "," and by adding the phrase "or W-8," after "4224" in such
eighth line.
(b) Section 2.12(e) of the Credit Agreement is
further amended by deleting the word "or" before "4224" in the third to last
line of such Section and replacing it with a "," and by adding the phrase
"or W-8," after "4224" in such third to last line.
2.10 Section 3.03(c)(iii) of the Credit Agreement is amended
by deleting from the second line of such Section the words "Borrowing Base" and
replacing them with the words "Working Capital Facility".
2.11 Section 5.01(g)(iii) of the Credit Agreement is amended
by deleting such Section in its entirety and replacing it with the following:
"(iii) If a Default or Event of Default has occurred,
permit the Administrative Agent, on behalf of the Lender Parties, to
conduct such commercial finance examinations and/or Collateral audits
of the Borrower and its Subsidiaries as
the Administrative Agent may request. Such commercial finance
examinations and Collateral audits shall be conducted, in accordance
with the Administrative Agent's instructions and protocol, by, at the
Administrative Agent's election, either Ernst & Young LLP or any other
Person reasonably selected by the Administrative Agent."
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2.12 Section 5.03(c) of the Credit Agreement is amended by
deleting the clause beginning with the words "As soon as available" on the first
line of such Section and ending with the words "each Fiscal Year," on the second
line of such Section and replacing such clause with the following:
"As soon as available and in any event within forty-five (45) days
after the end of each of the first, second and third fiscal quarters of
each Fiscal Year, and as soon as available and in any event within
sixty (60) days after the end of the fourth fiscal quarter of each
Fiscal Year,"
2.13 Section 5.03(t) of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"(t) [Intentionally left blank.]"
2.14 Section 6.01(p) of the Credit Agreement is amended by
deleting such Section in its entirety and replacing it with the following:
"(p) the aggregate amount of the Working Capital
Advances plus Swing Line Advances plus Letter of Credit Advances plus
the aggregate Available Amount of all Letters of Credit outstanding
shall at any time exceed the Working Capital Facility, which excess is
not eliminated by the Borrower's immediate prepayment of then
outstanding Swing Line Advances and Working Capital Advances;"
2.15 Exhibit B to the Credit Agreement, Form of Borrowing Base
Certificate, is amended by deleting such Exhibit in its entirety.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants as follows:
3.1 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 closing date of this Amendment as though made on such date. 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.
3.2 As of the closing date of 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.
3.3 The execution, delivery and/or performance by each
applicable Loan Party of this Amendment, the reaffirmations and confirmations
attached hereto, each other Loan Document, and each other agreement or document
related to or contemplated by the foregoing to which such Loan Party is or is to
be a party or otherwise bound, are within such Loan Party's
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corporate powers, have been duly authorized by all necessary corporate action,
and do not, and will not, (i) contravene any 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 G, 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,
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, 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.
3.4 Each of this Amendment and each other Loan Document has
been duly executed and delivered by each Loan Party thereto. Each of this
Amendment and each other Loan Document is the legal, valid and binding
obligation of each Loan Party which is a party hereto or thereto, enforceable
against such Loan Party in accordance with its terms.
3.5 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 and only 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, other than filings which have
previously been made and, in the case of UCC-1 financing statements, future
continuation statements when required to be filed.
4. CONDITIONS PRECEDENT TO THIS AMENDMENT. The effectiveness of
each and all of the amendments contained in Section 2 of this Amendment is
subject to the satisfaction, in form and substance satisfactory to the
Administrative Agent, of each of the following conditions precedent:
4.1 Amendment Documentation.
(a) The Borrower and the Lenders shall have duly
executed and delivered this Amendment.
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(b) Yale, Mechanical Products and Minitec shall
each have executed and delivered the reaffirmation and confirmation attached
hereto.
(c) NO NEW UCC-1 FILINGS IN FAVOR OF OTHERS.
On and as of the closing date of this Amendment, no new UCC-1 Financing
Statement, other financing statement, mortgage or other instrument perfecting
any Lien shall have been filed with respect to any real or personal property
owned, leased or otherwise held by the Borrower, any Guarantor or any other
Subsidiary of the Borrower since October 15, 1996, other than filings in favor
of the Administrative Agent, on behalf of the Lender Parties.
(d) CONSENTING LENDER FEES. The Borrower shall
have paid to the Administrative Agent, for the ratable benefit of each Lender
that becomes a party to this Amendment, an aggregate fee in an amount equal to
the amount determined by multiplying (i) the aggregate Commitments of all
Lenders executing and delivering a signature page to this Amendment
by (ii).125%.
(e) OTHER FEES. The Borrower shall have paid to
the Administrative Agent, for Fleet Bank's own account, the fees payable to it
under the terms of the Fee Letter, dated June 9, 1997, from Fleet Bank to the
Borrower and acknowledged by the Borrower on June 27, 1997.
(f) OTHER. The Borrower, each Guarantor and
each of the other Subsidiaries of the Borrower shall have delivered such other
documents and taken such other actions as the Administrative Agent may
reasonably request.
4.2 NO DEFAULT. As of the closing date of this
Amendment, no Default or Event of Default shall have occurred and be continuing.
4.3 REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Section 3 of this Amendment and in each other Loan
Document shall be true, correct and complete on and as of the closing date of
this Amendment, in each instance as though made on such date.
4.4 OTHER. The Administrative Agent shall have received such
other approvals, opinions or documents as any Lender through the Administrative
Agent may reasonably request, the Borrower and its Subsidiaries shall have taken
all such other actions as any Lender through the Administrative Agent may
reasonably request, and all legal matters incident to the foregoing shall be
satisfactory to the Administrative Agent and its counsel.
5. Effectiveness of Amendments. This Amendment, including,
without limitation, the amendments contemplated by Section 2 hereof, shall not
become effective unless and until each of the conditions precedent set forth in
Section 4 hereof has been satisfied.
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6. REFERENCE TO AND EFFECT UPON THE CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS.
6.1 Except as specifically amended in Section 2 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 The execution, delivery and effect of this Amendment shall
be limited precisely as written and shall not be deemed to (i) be a consent to
any waiver of any term or condition or to any amendment or modification of any
term or condition of the Credit Agreement or any other Loan Document, except,
upon the effectiveness, if any, of this Amendment, as specifically amended in
Section 2 above, or (ii) prejudice any right, power or remedy which the
Administrative Agent or any Lender Party now has or may have in the future under
or in connection with the Credit Agreement or any other Loan Document. Upon the
effectiveness, if any, 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.
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
duly executed and delivered as of the date first written above.
COLUMBUS XXXXXXXX CORPORATION
By: X.X.Xxxxxxxxxx
Title: Executive Vice President
FLEET BANK, AS ADMINISTRATIVE AGENT
By: \s\Xxxx X. Xxxxx
Title: Executive Vice President
FLEET BANK, AS INITIAL ISSUING BANK
By: \s\Xxxx X. Xxxxx
Title: Executive Vice President
FLEET BANK, AS SWING LINE BANK
By: \s\Xxxx X. Xxxxx
Title: Executive Vice President
LENDERS
FLEET BANK
By: \s\Xxxx X. Xxxxx
Title: Executive Vice President
LENDERS
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, AS A CO-AGENT
AND LENDER
By: \s\Xxxx X. Xxxxxx
Title: Sr. V.P.
LENDERS
XXXXXXX XXXXX CREDIT PARTNERS
L.P., AS A CO-AGENT AND LENDER
By: \s\Xxxx X. Xxxxx
Title: Authorized Signer
LENDERS
MARINE MIDLAND BANK
By: \s\X.X. Xxxxx
Title: SVP
LENDERS
BANKERS TRUST COMPANY
By: \s\Xxxxxxx Xxxxxx
Title: VP
LENDERS
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: \s\Xxxxxxx X. Xxxxxx
Title: Vice President
LENDERS
MELLON BANK, N.A.
By: \s\Xxxxxx X. Xxxxx
Title: Assistant Vice President
LENDERS
NATIONSBANK, N.A.
By: \s\Xxxxxx X. Xxxx
Title: VP
LENDERS
THE BANK OF NOVA SCOTIA
By: \s\J. Xxxx Xxxxxxx
Title: Authorized Signatory
LENDERS
KEYBANK NATIONAL ASSOCIATION
By: \s\Xxxxx Xxx
Title: Vice President
LENDERS
ABN-AMRO BANK N.V. NEW YORK
BRANCH
By: \s\Xxxxxx Dry
Title: Vice President
By: \s\Xxxxx X. Xxxxx
Title: Assistant Vice President
LENDERS
TORONTO DOMINION (NEW YORK), INC.
By: \s\Xxxxxx X. Xxxxxx
Title: Vice President
LENDERS
CRESCENT/MACH I PARTNERS, L.P.
BY TCW ASSET MANAGEMENT
COMPANY
ITS INVESTMENT MANAGER
By: \s\Xxxxxx X. Xxxxxxxx
Title: Senior Vice Presidnet
LENDERS
ALLSTATE INSURANCE COMPANY
By: \s\Xxxxx X. Xxxxxxx
Title:________________________________
By: \s\Xxxxxxxx Xxxxxx
Title: Authorized Signatories
LENDERS
ALLSTATE LIFE INSURANCE COMPANY
By: \s\Xxxxx X. Xxxxxxx
Title:________________________________
By: \s\Xxxxxxxx Xxxxxx
Title: Authorized Signatories
LENDERS
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: \s\Xxxx X. Xxxxx
Title: Managing Director
LENDERS
PILGRIM AMERICA PRIME RATE TRUST
By: \s\Xxxxxx X. Xxxxxx
Title: Senior Vice President
LENDERS
NATIONAL CITY BANK OF
PENNSYLVANIA
By: \s\Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
LENDERS
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: \s\Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
LENDERS
THE SUMITOMO BANK, LIMITED
By: \s\Xxxxxxx X. Xxxx
Title: Vice President & Manager
By: \s\X. Xxxxxxxx
Title: Assistant Vice President
N.Y. Office
LENDERS
COMERICA BANK
By: \s\Xxxxx X. Xxxxxx
Title: Account Officer
LENDERS
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH,
AS INVESTMENT ADVISOR
By: \s\Xxxxxxx Xxxxxxxx
Title: Assistant Treasurer
The undersigned hereby acknowledge and agree to this Amendment, and
agree that the Guaranty, dated October 16, 1996, the Security Agreement, dated
October 16, 1996, and the Intellectual Property Security Agreement, dated
October 16, 1996, as each has been supplemented by Guaranty Supplements,
Security Agreement Supplements or Intellectual Property Agreement Supplements,
as applicable, and each other Loan Document executed by the undersigned (or its
predecessors) shall remain in full force and effect and each is hereby ratified
and confirmed by and on behalf of the undersigned, this 17th day of July, 1997.
YALE INDUSTRIAL PRODUCTS, INC.
By: \s\X.X. Xxxxxxxxxx
Title: Treasurer
MECHANICAL PRODUCTS, INC.
By: \s\X.X. Xxxxxxxxxx
Title: Treasurer
MINITEC CORPORATION
By: \s\X.X. Xxxxxxxxxx
Title: Treasurer
