Exhibit 10.59
FIRST AMENDMENT
to that certain
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of January 8, 2007 (this "AMENDMENT"), is
made in connection with that certain Third Amended and Restated Credit
Agreement, dated as of March 16, 2006 (the "CREDIT AGREEMENT"), among Columbus
XxXxxxxx Corporation (the "BORROWER"), the Guarantors named therein, the lending
institutions party thereto (the "LENDERS"), and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used
herein and not defined herein shall have the meanings ascribed thereto in the
Credit Agreement.
WHEREAS, the Borrower has requested that the Administrative Agent and the
Lenders agree to amend certain terms and provisions of the Credit Agreement, as
specifically set forth in this Amendment; and
WHEREAS, the Lenders are willing to amend certain terms and provisions of
the Credit Agreement, but only on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
SS.1. AMENDMENTS.
----------
(a) The definition of "Interest Payment Date" set forth in Section 1.01 of
the Credit Agreement is hereby amended by deleting the text "15th" set forth in
the fifth line thereof and substituting in lieu thereof the following text:
"fifth (5th)".
(b) The definition of "Interest Period" set forth in Section 1.01 of the
Credit Agreement is hereby amended by inserting the words "seven (7) or fourteen
(14) days or" immediately before the text "one, two, three or six months"
occurring in the third line thereof.
(c) Section 2.02(e) is hereby amended by adding the following text
immediately before the period at the end of such Section: "and there shall not
be more than one (1) Interest Period comprised of seven or fourteen days at any
time".
(d) Section 2.03(i) is hereby amended by deleting the reference to "fifth
Business Day of each of March, June, September and December" set forth in the
seventh line thereof and substituting in lieu thereof the following text: "fifth
(5th) day of each of January, April, July and October".
- 2 -
(e) Section 2.03(j) is hereby amended by deleting the reference to "tenth
Business Day after the end of each of March, June, September and December" set
forth in the fourth line thereof and substituting in lieu thereof the following
text: "fifth (5th) day of each of January, April, July and October".
(f) Section 2.09(a) of the Credit Agreement is hereby amended by deleting
the two references therein to "15th" occurring in the seventh and eighth lines
thereof and substituting in lieu thereof the following text: "fifth (5th)".
SS.2. 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 Guaranty remains
in full force and effect, and each such Guarantor confirms and ratifies all of
its Guaranty obligations under the Credit Agreement and the other Loan
Documents. The Borrower and the Guarantors hereby confirm that the Obligations
or Guaranty 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 Guaranty
obligations under the Credit Agreement, as the case may be.
SS.3. 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 therefore may be brought.
- 3 -
(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 and the Credit
Agreement, as amended hereby.
(d) The representations and warranties contained in Article V 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.
SS.4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
----------------------------
shall be conditioned upon execution hereof by the Required Lenders.
SS.5. 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.
SS.6. 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.
SS.7. 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
- 4 -
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 10.04 of the Credit Agreement, all costs and
expenses incurred or sustained by the Administrative 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 Borrower whether or not this Amendment is consummated.
[REMAINDER OF PAGE INTENTIONAL; SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be
executed as of the date first written above.
BORROWER
--------
COLUMBUS XXXXXXXX CORPORATION
By: /S/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GUARANTORS
----------
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/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Manager
By: /S/ Romain Thillens
-----------------------------------
Name: Romain Thillens
Title: Manager
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /S/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Agency Management Officer
BANK OF AMERICA, N.A.
as Lender, L/C Issuer and Swing Line Lender
By: /S/ Xxxxxxx X'Xxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Vice President
CITIZENS BANK, N.A.
By: /S/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /S/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By: /S/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /S/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
GREATER BUFFALO SAVINGS BANK
By: /S/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Senior Vice President
