TWELFTH AMENDMENT TO CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as
of September 27, 2002, 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, 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, that certain Fifth Amendment to Credit Agreement, dated as of
September 28, 2000, that certain Sixth Amendment to Credit Agreement and
Consent, dated as of February 5, 2001, that certain Seventh Amendment to Credit
Agreement and Consent, dated as of June 26, 2001, that certain Eighth Amendment
to Credit Agreement, dated as of November 21, 2001, that certain Ninth Amendment
to Credit Agreement, dated as of February 12, 2002, that certain Tenth Amendment
to Credit Agreement, dated as of April 16, 2002, and that certain Eleventh
Amendment to Credit Agreement, dated as of June 6, 2002 (the "ELEVENTH
AMENDMENT") (the Credit Agreement, 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 believes that it may be in default under the
covenants set forth in Section 5.04(a) (Maximum Funded Debt to EBITDA Ratio) and
Section 5.04(e) (Minimum EBITDA) of the Credit Agreement for the period ending
September 29, 2002;
WHEREAS, the Borrower has requested that the Administrative Agent and
Lender Parties waive any defaults which may arise under such sections of the
Credit Agreement for the period ending September 29, 2002;
WHEREAS, the Borrower, the Administrative Agent and Lender Parties are
desirous of amending the Credit Agreement as and to the extent set forth herein;
WHEREAS, the Administrative Agent and Lender Parties are agreeable to
the foregoing 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, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties 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 any
Events of Default which may arise solely under Sections 5.04(a) (Maximum Funded
Debt to EBITDA Ratio) and 5.04(e) (Minimum EBITDA) of the Credit Agreement
solely and exclusively for the period ending September 29, 2002. 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. COVENANTS.
3.1. In addition to any amounts which may be payable by the
Borrower pursuant to Sections 6.2 and 6.3 of the Eleventh Amendment, on November
15, 2002, the Borrower shall pay to the Administrative Agent, for the benefit of
the Lenders, a fee in the amount of $187,500; PROVIDED, HOWEVER, that, if the
Borrower has prepaid all of the outstanding Advances and terminated the
Revolving Credit Facility on or before November 15, 2002, then such $187,500 fee
shall not be payable.
3.2. Section 5.1 of the Eleventh Amendment is hereby restated in
its entirety to read as follows:
"5.1 If the Borrower has not prepaid the Revolving Credit
Advances by at least $50,000,000 and correspondingly
permanently reduced the Revolving Credit Facility by at least
$50,000,000 on or before November 15, 2002, then:
(a) on November 15, 2002, the Borrower and each of its
Domestic Subsidiaries shall enter into a new cash management
system, which shall include a cash collateral account, with
the Administrative Agent and each bank at which the Borrower
or such Subsidiary maintains a bank account, such cash
management system to be in form and substance satisfactory to
the Administrative Agent; and
(b) from and after November 15, 2002, the Borrower
shall permit the Administrative Agent to conduct at any time
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and from time to time such commercial finance examinations
and/or Collateral audits of the Borrower and its Subsidiaries
as the Administrative Agent may request."
4. 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:
4.1. The Borrower and Lenders shall have duly executed and
delivered this Amendment and each other Loan Party shall have duly executed the
attached Acknowledgment and Ratification in connection with this Amendment
4.2. After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
4.3. The Borrower and the other Loan Parties shall have taken all
such other actions and executed and delivered all such other agreements,
instruments, certificates and documents, if any, as the Administrative Agent
shall have reasonably requested.
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS.
5.1. Except as specifically set forth in this Amendment, the Credit
Agreement and each of the other Loan Documents shall remain in full force and
effect and each is hereby ratified and confirmed.
5.2. 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.
6. 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.
7. 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.
8. 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.
9. HEADINGS. Section 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.
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[signature pages follow]
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
ACKNOWLEDGMENT AND RATIFICATION
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 6th day of June 2002.
AUDUBON WEST, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
LICO STEEL, INC.
By: /S/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
Title: Treasurer
CRANE EQUIPMENT & SERVICE, 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
AUDUBON EUROPE S.A.R.L.
By: /S/ XXXXXX X. XXXXXXXXXX
-----------------------------
Xxxxxx X. Xxxxxxxxxx
Title: Director
LENDERS
FLEET NATIONAL BANK, as Administrative
Agent, Initial Issuing Bank, Swing Line Bank
and Lender
By: /S/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
LENDERS
THE BANK OF NOVA SCOTIA, as a Co-Agent and
Lender
By: /S/ XXXX X. XXXXXXXXXXXXX
-----------------------------
Name: P.A. Xxxxxxxxxxxxx
Title: Authorized Signatory
LENDERS
MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Co-Agent and Lender
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
LENDERS
HSBC BANK USA (formerly known as Marine
Midland Bank), as a Co-Agent and Lender
By: /S/ XXXX X. XXXXXXX
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LENDERS
COMERICA BANK
By: /S/ XXXX X. XXXXXX
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
LENDERS
WACHOVIA BANK, NA
By: /S/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
LENDERS
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXX X. XXXXX
-----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
LENDERS
THE BANK OF NEW YORK
By: /S/ XXXXXXXXX X. RIO
-----------------------------
Name: Xxxxxxxxx X. Rio
Title: Vice President
