FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 23, 1998, 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 :
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 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 in order to, among other things,
modify certain covenants thereunder to allow the Borrower to repurchase directly
or to loan funds to the Borrower ESOP so that the Borrower ESOP may purchase up
to $10,000,000 in the aggregate of the common stock of the Borrower during the
term of the Credit Agreement;
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; 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, 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 Section 1.01 is amended by inserting the following in the
appropriate alphabetical order:
"`BORROWER ESOP' means the Columbus XxXxxxxx Corporation Employee
Stock Ownership Trust as organized pursuant to the Columbus XxXxxxxx
Corporation Employee Stock Ownership Trust Agreement, dated April 1,
1987, as amended, supplemented, restated, extended or otherwise
modified from time to time."
2.2 Section 2.14 is amended by inserting after the words "Section
5.02(d)(iii)" at the end of the first sentence thereof, the following:
", to finance loans made by the Borrower to the Borrower ESOP for the
purpose and to the extent permitted under Section 5.02(f)(vi) and to
finance repurchases of the Borrower's common stock to the extent
permitted under Section 5.02(g)(v)."
2.3 Section 5.02(f) is amended by (a) deleting the word "and" at the
end of clause (iv) thereof and (b) deleting the period at the end of clause (v)
thereof and inserting in its place, the following:
"; and
(vi) so long as no Default or Event of Default shall have occurred and
be continuing, or would result therefrom, Investments by the Borrower
consisting of loans made from time to time to the Borrower ESOP for
the sole purpose of enabling the Borrower ESOP to purchase common
stock of the Borrower in an aggregate amount during the term of the
Credit Agreement which, when added to the aggregate amounts paid by
the Borrower pursuant to Section 5.02(g)(v), shall not exceed
$10,000,000; PROVIDED, THAT, such loans made by the Borrower to the
Borrower ESOP are secured by the common stock of the Borrower so
purchased by the Borrower ESOP with the proceeds of such loans."
2.4 Section 5.02(g) is amended by deleting the period at the end of
clause (iv) thereof and inserting in its place, the following:
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", and
(v) so long as no Default or Event of Default shall have occurred and
be continuing, or would result therefrom, the Borrower may from time
to time repurchase shares of its common stock for aggregate
consideration during the term of the Credit Agreement which, when
added to the aggregate amounts loaned by the Borrower pursuant to
Section 5.02(f)(vi), shall not exceed $10,000,000."
2.5 Section 5.02(r)(i) is amended by inserting after the word "below"
and before the period at the end thereof, the following:
", and except for pledges of the common stock of the Borrower to the
Borrower by the Borrower ESOP as contemplated by Section 5.02(f)(vi)."
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 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, ERISA, 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 assets, or the Borrower ESOP or any of its properties
or assets, 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.
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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.
(1) The Borrower and the Lenders shall have duly executed and
delivered this Amendment.
(2) Each of the Guarantors shall each have executed and delivered
the reaffirmation and confirmation attached hereto.
4.2 OTHER DOCUMENTS. 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.
4.3 NO DEFAULT. As of the closing date of this Amendment, no Default
or Event of Default shall have occurred and be continuing.
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4.4 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.
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.
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: /S/XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
Title: EXECUTIVE VICE PRESIDENT
-------------------------
The undersigned hereby acknowledge and agree to this Amendment, and agree
that the Guaranty, dated March 31, 1998, the Security Agreement, dated March 31,
1998, and the Intellectual Property Security Agreement, dated March 31, 1998,
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 23 day of September, 1998.
YALE INDUSTRIAL PRODUCTS, INC.
By: /S/XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
Title: TREASURER
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LICO, INC.
By: /S/XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
Title: TREASURER
----------
AUTOMATIC SYSTEMS, INC.
By: /S/XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
Title: TREASURER
----------
LICO STEEL, INC.
By: /S/XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
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/ XXXXXXX X. XXXXXXX
-----------------------
Title: 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 XXXXXX
-------------------
Title: VICE PRESIDENT
---------------
LENDERS
MARINE MIDLAND BANK, AS A CO-AGENT AND
LENDER
By: /S/ XXXXX X. XXXXXXX
---------------------
Title: AUTHORIZED SIGNATORY
---------------------
LENDERS
COMERICA BANK
By: /S/ XXXXX X. XXXXXX
--------------------
Title: ACCOUNT OFFICER
----------------
LENDERS
FIRST UNION NATIONAL BANK
By: /S/ XXXX X. XXXXXX
-------------------
Title: SENIOR VICE PRESIDENT
----------------------
LENDERS
KEYBANK NATIONAL ASSOCIATION
By: /S/ XXXXXXXX X. XXXX
---------------------
Title: SENIOR VICE PRESIDENT
----------------------
LENDERS
MELLON BANK, N.A.
By: /S/ XXXXX XXXXXXXXXX
---------------------
Title: VICE PRESIDENT
---------------
LENDERS
BANKERS TRUST COMPANY
By: /S/ XXXXXXX XXXXXXXX
---------------------
Title: VICE PRESIDENT
---------------
LENDERS
THE BANK OF NEW YORK
By: /S/ XXXXXXXX X. X. XXXXXXX
---------------------------
Title: VICE PRESIDENT
---------------
LENDERS
NATIONAL BANK OF CANADA
By: /S/ XXXXXX XXXXX
-----------------
Title: VICE PRESIDENT
---------------
By: /s/ XXXXXXX X. XXXXX
---------------------
Title: MARKETING OFFICER
------------------
LENDERS
NATIONAL CITY BANK OF PENNSYLVANIA
By: /S/ XXXXXXX XXXXXXXX
---------------------
Title: VICE PRESIDENT
---------------
LENDERS
TORONTO DOMINION (TEXAS), INC.
By: /S/ XXXXXX X. XXXXXX
---------------------
Title: VICE PRESIDENT
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