FOURTH AMENDMENT AND WAIVER
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THIS FOURTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER, dated as of
February 15, 2000 (this "AMENDMENT AND WAIVER"), to the Credit Agreement, dated
as of March 31, 1998 and as previously amended to date, is by and among Columbus
XxXxxxxx Corporation, a New York corporation (the "BORROWER"), the Lenders party
thereto and Fleet National Bank, as the Initial Issuing Bank, the Swing Line
Bank and the Administrative Agent.
PRELIMINARY STATEMENTS
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(A) The Borrower, the Lenders and Fleet National Bank, as the
Initial Issuing Bank, the Swing Line Bank and the Administrative Agent, are
parties to the Credit Agreement, dated as of March 31, 1998, as amended by the
First Amendment to Credit Agreement, dated as of September 23, 1998, the Second
Amendment to Credit Agreement and Consent, dated as of February 12, 1999, and
the Third Amendment to Credit Agreement, dated as of November 16, 1999 (as it
may be further amended, restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT").
(B) Xxxxxx, Inc., a subsidiary of the Borrower and Guarantor, is
in the process of selling its facility (a service center and office structure),
located on 00xx Xxxxxx in Tulsa, Oklahoma at fair market value for an aggregate
cash purchase price not to exceed $800,000 (the "Sale of Assets"), as permitted
by Section 5.02(e)(iii) of the Credit Agreement.
(C) Section 2.06(b)(ii) of the Credit Agreement requires that the
Net Cash Proceeds from the Sale of Assets be applied to make a mandatory
prepayment of the then outstanding Advances.
(D) The Administrative Agent and Lenders desire to waive the
requirements of Section 2.06(b)(ii) of the Credit Agreement and to amend
Sections 5.03(b), 5.03(c), 5.03(d) and 5.04(d) of the Credit Agreement as set
forth herein.
Terms defined in the Credit Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE 1. WAIVER. Subject to the satisfaction of the
conditions set forth in Article 4 hereof:
(a) The Administrative Agent and Lenders hereby waive any
prepayment required by Section 2.06(b)(ii) of the Credit Agreement in connection
with the Sale of Assets and consent to the use of the Net Cash Proceeds from the
Sale of Assets for working capital and other general corporate purposes;
PROVIDED, THAT, the Sale of Assets complies with the provisions of Section
5.02(e)(iii) of the Credit Agreement; and, FURTHER PROVIDED, THAT, the Net Cash
Proceeds from the Sale of Assets do not exceed $800,000.
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(b) The foregoing waiver is only applicable and shall only be
effective in the specific instance and for the specific purpose for which made.
The waiver is expressly limited to the facts and circumstances referred to
herein and shall not operate (i) as a waiver of or consent to non-compliance
with any other Section or provision of the Credit Agreement or any other Loan
Document or (ii) as a waiver of any other right, power or remedy of either the
Administrative Agent or any Lender Party under the Credit Agreement or any other
Loan Document.
ARTICLE 2. AMENDMENTS.
Section 2.1 Section 5.03(b) of the Credit Agreement is deleted
in its entirety and replaced by the following:
"(b) QUARTERLY FINANCIALS. 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 ninety (90) days after the end of the fourth fiscal quarter of each
Fiscal Year, a Consolidated balance sheet of the Borrower and its Subsidiaries,
as of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries, and
consolidating statements of income of the Borrower and its Significant
Subsidiaries, for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and a Consolidated
statement of income and a Consolidated statement of cash flows of the Borrower
and its Subsidiaries, and consolidating statements of income of the Borrower and
its Significant Subsidiaries, for the period commencing at the end of the
previous Fiscal Year and ending with the end of such fiscal quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year and the corresponding figures
from the budgeted forecasts delivered pursuant to Section 5.03(e) for such
period and for the Fiscal Year which includes such period, all in reasonable
detail and duly certified by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP (subject to normal year-end audit
adjustments), together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto and (ii) a schedule
in form satisfactory to the Administrative Agent of the computations used by the
Borrower in determining compliance with the financial covenants contained in
Sections 5.04(a) through (d), PROVIDED, that in the event of any change in GAAP
used in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP. In
connection with the Borrower's delivery of all quarterly financial statements
pursuant to the foregoing, the Borrower shall also furnish to the Administrative
Agent and Lender Parties a contract progress report with respect to each and
every ongoing contracted for project in process of the Borrower, LICO or any of
their respective Subsidiaries which involves aggregate payments during the life
of such contract in excess of $5,000,000. All such contract in progress reports
shall be prepared in a manner and presented in a form reasonably acceptable to
the Administrative Agent."
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Section 2.2 Section 5.03(c) of the Credit Agreement is deleted
in its entirety and replaced by the following:
"(c) ANNUAL FINANCIALS. As soon as available and in any event
within one hundred and five (105) days after the end of each Fiscal Year, a copy
of the annual audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries, as of the end of such Fiscal Year and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries, and consolidating statements of income of the Borrower and its
Significant Subsidiaries, for such Fiscal Year, in each case setting forth in
comparative form the corresponding figures for the prior Fiscal Year and the
corresponding figures from the budgeted forecasts delivered pursuant to Section
5.03(e) for such Fiscal Year and in each case accompanied (in the case of such
Consolidated financial statements) by an opinion acceptable to the
Administrative Agent, with the consent of the Required Lenders, of Ernst & Young
LLP or other independent certified public accountants of recognized national
standing acceptable to the Administrative Agent, with the consent of the
Required Lenders, together with (i) a letter of such accounting firm to the
Administrative Agent and Lender Parties stating that in the course of the
regular audit of the business of the Borrower and its Subsidiaries, which audit
was conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such accounting
firm, a Default has occurred and is continuing, a statement as to the nature
thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the end of such
Fiscal Year, compliance with the covenants contained in Sections 5.04(a) through
(d), PROVIDED, that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (iii) a certificate of the
chief financial officer of the Borrower stating that no Default has occurred and
is continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto."
Section 2.3 Section 5.03(d) of the Credit Agreement is deleted
in its entirety and replaced by the following:
"(d) PRO FORMA FINANCIALS. In connection with the delivery of all
financial statements delivered under Section 5.03(b) or 5.03(c) above, pro forma
statements of income reflecting the acquisition of LICO and all other
acquisitions made by the Borrower or one of its Subsidiaries at any time during
such period, such pro forma statement of income to be prepared both (i) for the
period commencing at the end of the previous Fiscal Year and ending with the end
of such fiscal quarter or Fiscal Year, as the case may be, as if the acquisition
of LICO and all such other acquisitions had occurred at the beginning of such
period and (ii) for the corresponding period of the preceding Fiscal Year,
setting forth the corresponding figures for such corresponding period of the
preceding Fiscal Year, as if the acquisition of LICO and all such other
acquisitions had occurred at the beginning of such corresponding period. All
such pro forma statements of income shall be prepared as if the acquisition of
LICO and all such other acquisitions had occurred at the beginning of the
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relevant periods reflected therein. All pro forma statements of income shall be
prepared on a basis and presented in a form reasonably acceptable to the
Administrative Agent. The requirements set forth in this Section 5.03(d) to
deliver pro forma statements of income with respect to the acquisition of LICO
or any other acquisition made by the Borrower or one of its Subsidiaries, as the
case may be, shall continue until such time as the acquisition of LICO or such
other acquisition, as the case may be, has been fully reflected for all relevant
time periods in the financial statements delivered under Section 5.03(b) or
5.03(c) above, as appropriate, whereupon the requirements to deliver pro forma
statements of income with respect to the acquisition of LICO or such other
acquisition, as the case may be, shall cease with respect to the acquisition of
LICO or such other acquisition, as the case may be, only, but shall continue
with respect to any and all acquisitions of the Borrower or one of its
Subsidiaries other than the acquisition of LICO or such other acquisition, as
the case may be."
Section 2.4 Section 5.04(d)(ii) of the Credit Agreement is
amended by deleting therefrom the words "March 31, 1998" and by replacing them
with the words "October 3, 1999".
ARTICLE 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Lenders and Administrative Agent that:
Section 3.1 EXISTING REPRESENTATIONS. Each of the representa-
tions and warranties contained in Article IV of the Credit Agreement is true in
all respects on, and as though made as of, the date hereof, other than any such
representation or warranty that, by its terms, refers to a specific date, in
which case, as of such specific date.
Section 3.2 NO DEFAULT. As of the date hereof, there exists no
Default or Event of Default under the Credit Agreement and no event which, with
the giving of notice or lapse of time, or both, would constitute a Default or
Event of Default.
ARTICLE 4. CONDITIONS TO AMENDMENT AND WAIVER.The effectiveness
of the waiver contained in Article 1 and the amendments contained in Article 2
shall be subject to the fulfillment of the following conditions precedent:
(a) The Borrower, Administrative Agent and Lenders shall have
executed and delivered to the Administrative Agent this Amendment and Waiver.
ARTICLE 5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT
AND OTHER LOAN AGREEMENTS.
Section 5.1 Except as specifically waived or amended herein, the
Credit Agreement and each of the other Loan Documents shall remain in full force
and effect in accordance with their respective terms and are hereby ratified and
confirmed in all respects.
Section 5.2 The execution, delivery and effect of this Amendment
and Waiver 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 (except as specifically waived pursuant to
Section 1 herein or amended pursuant to Section 2 herein), of the Credit
Agreement or any other Loan Document or (ii) prejudice any right, power or
remedy which any Agent or any Lender now has or may have in the future under or
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in connection with the Credit Agreement, the Notes or any other Loan Document.
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 be and mean a reference to the Credit Agreement as amended hereby.
ARTICLE 6. MISCELLANEOUS.
Section 6.1 GOVERNING LAW. THIS AMENDMENT AND WAIVER 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.
Section 6.2 COUNTERPARTS. This Amendment and Waiver may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument. Delivery of an executed
signature page to this Amendment and Waiver by facsimile shall be as effective
as delivery of an original executed signature page.
Section 6.3 BINDING EFFECT;ASSIGNMENT. This Amendment and Waiver
shall be binding upon and inure to the benefit of the Borrower and its
respective successors and to the benefit of the Administrative Agent and the
Lenders and their respective successors and assigns.
Section 6.4 FEES AND EXPENSES. The Borrower shall pay the
Administrative Agent for all reasonable expenses, including reasonable fees of
legal counsel, incurred by the Administrative Agent in connection with the
preparation, negotiation and execution of this Amendment and Waiver and any
related matters.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to
be executed by their respective officers thereunto duly authorized on the date
first above written.
COLUMBUS XXXXXXXX CORPORATION
By: /S/ X. X. XXXXXXXXXX
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Title: Executive Vice President
The undersigned hereby acknowledge and agree to this Amendment
and Waiver, 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 15th day of
February, 2000.
AUTOMATIC SYSTEMS, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
LICO STEEL, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
XXXXX-XXXX CRANE, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
G.L. INTERNATIONAL INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
XXXXXX, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
HANDLING SYSTEMS AND CONVEYORS, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
WASHINGTON EQUIPMENT COMPANY
By: /S/ X. X. XXXXXXXXXX
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Title: Treasurer
FLEET NATIONAL BANK, as Administrative Agent
By: /S/ XXXX X. XXXXXXX
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Title: Vice President
FLEET NATIONAL BANK, as Initial Issuing Bank
By: /S/ XXXX X. XXXXXXX
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Title: Vice President
FLEET NATIONAL BANK, as Swing Line Bank
By: /S/ XXXX X. XXXXXXX
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Title: Vice President
LENDERS
FLEET NATIONAL BANK
By: /S/ XXXX X. XXXXXXX
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Title: Vice President
LENDERS
ABN-AMRO BANK N.V. NEW YORK
BRANCH, as a Co-Agent and Lender
By: /S/ XXXXXX XXXXXX
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Title: Vice President
By: /S/ JULIETTE MOUND
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Title: Assistant Vice President
LENDERS
THE BANK OF NOVA SCOTIA, as a Co-Agent and
Lender
By: /S/ XXXXXXX X. XXXXXXX
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Title: Managing Director
LENDERS
MANUFACTURERS AND TRADERS TRUST COMPANY, as
a Co-Agent and Lender
By: /S/ XXXXXXX X. XXXXXX
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Title: Vice President
LENDERS
HSBC BANK USA (formerly known as Marine
Midland Bank), as a Co-Agent and Lender
By: /S/ D. C. ENGLISH
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Title: Associate Director
LENDERS
COMERICA BANK
By: /S/ XXXXXXXX X. XXXXXXXXX
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Title: Assistant Vice President
LENDERS
FIRST UNION NATIONAL BANK
By: /S/ XXXX X. XXXXXX
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Title: Senior Vice President
LENDERS
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXX, XX.
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Title: Portfolio Officer
LENDERS
MELLON BANK, N.A.
By: /S/ XX XXXXXXXX
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Title: Vice President
LENDERS
BANKERS TRUST COMPANY
By:
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Title:
LENDERS
THE BANK OF NEW YORK
By: /S/ XXXXXX X. XXXXXXXX
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Title: Vice President
LENDERS
NATIONAL BANK OF CANADA
By: /S/ XXXXXX XXXXX
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Title: Vice President and Manager
By: /S/ XXXXXXX X. XXXXXXX
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Title: Vice President
LENDERS
NATIONAL CITY BANK OF PENNSYLVANIA
By: /S/ XXXXXXX X. XXXXXXXX
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Title: Vice President
