THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this
"AMENDMENT"), dated as of November 16, 1999, 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, and that certain Second Amendment to Credit
Agreement and Consent, dated as of February 12, 1999 (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 has requested that the Administrative Agent and
Lender Parties amend the Credit Agreement as and to the extent set forth in this
Amendment;
WHEREAS, for administrative simplicity and other reasons, the Borrower
desires to merge Larco Material Handling Inc. ("LARCO") with and into Xxxxxx,
Inc. ("XXXXXX"), with Xxxxxx being the surviving corporation (the "XXXXX-XXXXXX
MERGER"); 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, capital-
ized terms used in this Amendment shall have the same meanings ascribed
to them in the Credit Agreement.
2. AMENDMENTS.
2.1. 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 0.50% 2.000% 0.375%
Equal to or greater than 3.50
less than 4.00 0.25% 1.750% 0.350%
Equal to or greater than 3.00
less than 3.50 0.00% 1.500% 0.300%
Equal to or greater than 2.50
less than 3.00 0.00% 1.250% 0.200%
Less than 2.50 0.00% 0.875% 0.150%
2.2. Section 1.01 of the Credit Agreement is amended to include the
following definition in the appropriate alphabetical order:
"'CANADIAN DOLLARS' means the lawful currency of Canada."
2.3. Section 1.01 of the Credit Agreement is further amended by
inserting in the definition of "ALTERNATIVE CURRENCY" after the words
"Alternative Currency Letters of Credit," and before the words "the Euro" the
words "Canadian Dollars,".
2.4. Section 1.01 of the Credit Agreement is further amended by
inserting in the definition of "ASSIGNED DOLLAR VALUE" before the words "the
Euro" in clause (b)(ii)(A) thereof the words "Canadian Dollars,".
2.5. Section 1.01 of the Credit Agreement is further amended by
deleting from the definition of "EXCHANGE RATE" the word "and" that appears
before clause (c) of the first sentence of such definition and inserting before
the period at the end of the first sentence of such definition the following:
", (d) with respect to Canadian Dollars, the spot rate at which U.S.
Dollars are offered on such day by the Administrative Agent in London
for Canadian Dollars at approximately 11:00 A.M. (London time) and (e)
with respect to U.S. Dollars in relation to Canadian Dollars, the spot
rate at which Canadian Dollars are offered on such day by the
Administrative Agent in London for U.S. Dollars at approximately 11:00
A.M. (London time)"
2.6. Section 5.02(d)(iii)(4) of the Credit Agreement is amended by
deleting the words "$35,000,000 in the aggregate in any Fiscal Year" and
replacing them with the following:
"$10,000,000 in the aggregate in any Fiscal Year; PROVIDED, HOWEVER,
THAT, in the event that the Consolidated Funded Debt to EBITDA Ratio of
the Borrower (as calculated pursuant to Section 5.04(a)) falls below
3.50 to 1.0 for any period of four fiscal quarters, the sum of all such
amounts shall not exceed $35,000,000 in any Fiscal Year thereafter".
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2.7. Section 5.02(f) of the Credit Agreement is amended by deleting the
number "(vi)" that appears before the clause "Investments consisting of
Permitted Acquisitions" and replacing it with the number "(vii)" and placing
such renumbered clause (vii) in the proper numerical order in such Section
5.02(f).
2.8. Section 5.02(g)(i) of the Credit Agreement is amended by deleting
the figure "$10,000,000" and replacing it with the figure "$5,000,000".
2.9. Section 5.02(i) of the Credit Agreement is amended by inserting
before the period at the end of such Section the following:
"in any manner that would in any material respect impair the ability of
any Loan Party to perform its obligations under any Loan Document or
that would impair in any material respect the rights or interests of
the Administrative Agent or any of the Lender Parties"
2.10. Section 5.04(a) of the Credit Agreement is amended by deleting
from the chart contained therein the dates from and including December 31, 1999
and the corresponding ratios for such dates and replacing them with the
following:
"December 31, 1999 4.50 to 1.0
March 31, 2000 4.50 to 1.0
June 30, 2000 4.25 to 1.0
September 30, 2000 4.00 to 1.0
December 31, 2000 3.75 to 1.0
March 31, 2001 3.75 to 1.0
June 30, 2001 3.50 to 1.0
September 30, 2001 3.50 to 1.0
December 31, 2001 3.50 to 1.0
March 31, 2002 and each fiscal
quarter end thereafter 3.25 to 1.0".
2.11. Section 5.04(b) of the Credit Agreement is amended by deleting
the ratio "3.0 to 1.0" and replacing it with the words "the ratio set forth
below:
FOUR FISCAL QUARTERS ENDING ON: RATIO
------------------------------- -----
December 31, 1999 2.75 to 1.0
March 31, 2000 2.75 to 1.0
June 30, 2000 2.75 to 1.0
September 30, 2000 and each fiscal
quarter end thereafter 3.00 to 1.0".
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2.12. Section 5.04(c) of the Credit Agreement is amended by deleting
from the chart contained therein the words "March 31, 1999 and each fiscal
quarter ending thereafter" and the corresponding ratio "1.50 to 1.00" and
replacing them with the following:
"December 31, 1999 1.25 to 1.0
March 31, 2000 and each fiscal
quarter end thereafter 1.50 to 1.0".
2.13. Section 5.04(d) of the Credit Agreement is amended by deleting
clause (i) thereof and replacing it with "(i) $190,000,000".
3. CONSENT TO XXXXX-XXXXXX MERGER.
3.1. Section 5.01(f) of the Credit Agreement, among other things,
requires that the Borrower preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its existence, legal structure, legal
name and rights (charter and statutory). Section 5.02(d)(i) of the Credit
Agreement, among other things, prohibits the Borrower or any of its Subsidiaries
from merging into or consolidating with any Person or permitting any Person to
merge into it. Notwithstanding the provisions of Section 5.01(f) and Section
5.02(d)(i), but subject to the conditions precedent set forth in Section 3.2
below and the other terms and conditions of this Amendment, the Administrative
Agent and Lender Parties hereby consent to the Xxxxx-Xxxxxx Merger.
3.2. The Xxxxx-Xxxxxx Merger is subject to the satisfaction, as
determined by the Administrative Agent, of each of the following conditions
precedent:
(a) The Borrower shall have caused Xxxxxx to have executed and
delivered such agreements, instruments and other documents, including,
without limitation, UCC-1 financing statements, UCC-3 amendments to
financing statements and amendments to intellectual property filings,
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 in the
Collateral of Xxxxxx and Xxxxx.
(b) As of the date of the consummation of the Xxxxx-Xxxxxx
Merger, no Default or Event of Default shall have occurred and be
continuing.
(c) 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 date of the
consummation of the Xxxxx-Xxxxxx Merger, as though made on such date.
(d) The Borrower shall, and shall have caused its Subsidiaries
to, have taken all such actions and executed and delivered all such
agreements, instruments and other documents as the Administrative
Agent shall have reasonably requested in connection with the
Xxxxx-Xxxxxx Merger.
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3.3. The foregoing consent in Section 3.1 is only applicable and shall
only be effective in the specific instance and for the specific purpose for
which made. Such consent is 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. 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, 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 or the reaffirmations and confirmations attached hereto
and each other Loan Document 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,
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.
4.4. Each of this Amendment and each other Loan Document has been duly
executed and delivered by each Loan Party party thereto. Each of this Amendment
and each other Loan Document is the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in accordance with
its terms.
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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, Required Lenders and, as to the amendments contained
in Sections 2.1 through 2.4, the Required Alternative Currency Lenders, shall
have duly executed and delivered this Amendment.
5.2. 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.
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. EFFECTIVENESS OF AMENDMENT. This Amendment shall not become effective
unless and until each of the conditions precedent set forth in Section 5 hereof
has been satisfied.
7. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS.
7.1. 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.
7.2. The execution, delivery and effect of this Amendment shall be
limited precisely as written and shall not be deemed to (a) 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 as
specifically amended in Section 2 above and for the specific consent set forth
in Section 3 above (subject to the terms and conditions of such consent set
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forth herein), or (b) 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 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.
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/ X.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 16th day of November, 1999.
AUTOMATIC SYSTEMS, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
LICO STEEL, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
XXXXX-XXXX CRANE, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
G.L. INTERNATIONAL INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
XXXXXX, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
HANDLING SYSTEMS AND CONVEYORS, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
LARCO MATERIAL HANDLING INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
YALE INDUSTRIAL PRODUCTS, INC.
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
WASHINGTON EQUIPMENT COMPANY
By: /s/ X.X. Xxxxxxxxxx
-------------------
Title: Treasurer
FLEET NATIONAL BANK, as
Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
-------------------
Title: Vice President
-------------------
FLEET NATIONAL BANK, as Initial
Issuing Bank
By: /s/ Xxxx X. Xxxxxxx
-------------------
Title: Vice President
-------------------
FLEET NATIONAL BANK, as Swing Line
Bank
By: /s/ Xxxx X. Xxxxxxx
-------------------
Title: Vice President
-------------------
Lenders
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
-------------------
Title: Vice President
-------------------
Lenders
ABN-AMRO BANK N.V. NEW YORK
BRANCH, as a Co-Agent and Lender
By: /s/ Xxxxxx Xxxxxx
-------------------
Title: Vice President
-------------------
By: /s/ Juliette Mound
-------------------
Title: Assistant Vice President
------------------------
Lenders
THE BANK OF NOVA SCOTIA, as a
Co-Agent and Lender
By: /s/ J. Xxxx Xxxxxxx
-------------------
Title: Authorized Signatory
--------------------
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/ D.C. English
----------------
Title: Associate Director
------------------
Lenders
COMERICA BANK
By: /s/ Xxxx Xxxxxx
---------------
Title: Account Representative
----------------------
Lenders
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
------------------
Title: Senior Vice President
---------------------
Lenders
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxx
----------------
Title:Portfolio Manager and Officer
-----------------------------
Lenders
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Title: Vice President
--------------
Lenders
BANKERS TRUST COMPANY
By: /s/ G. Xxxxxx Xxxxx
-------------------
Title: Vice President
-------------------
Lenders
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxxxx
----------------------
Title: Vice President
--------------
Lenders
NATIONAL BANK OF CANADA
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Marketing Officer
-----------------
By: /s/ Xxxx Dzunion
----------------
Title: Credit Analyst
----------------
Lenders
NATIONAL CITY BANK OF PENNSYLVANIA
By:_______________________________
Title:____________________________
