SECOND AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this
"AMENDMENT"), dated as of February __, 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 :
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 (the "FIRST AMENDMENT") (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 desires to consummate certain acquisitions which
would require the consent of the Lenders to the waiver or amendment of certain
provisions of the Credit Agreement in order to permit such acquisitions;
WHEREAS, for administrative simplicity, operational efficiency and
other reasons, the Borrower has proposed making certain changes in the
organizational structure of the Borrower and its Subsidiaries, including the
merger of Yale Industrial Products, Inc. ("YALE") with and into the Borrower,
with the Borrower as the surviving corporation (the "YALE MERGER"), the merger
of LICO Conveyor Company ("LICO CONVEYOR") with and into Automatic Systems, Inc.
("ASI"), with ASI as the surviving corporation (the "LICO CONVEYOR MERGER"), the
merger of LICO, Inc. ("LICO") with and into ASI, with ASI as the surviving
corporation (the "LICO MERGER");
WHEREAS, for administrative simplicity, operational efficiency and
other reasons, the Borrower has proposed making certain other changes in the
organizational structure of the Borrower and its Subsidiaries, and certain other
related changes;
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WHEREAS, the Borrower, the Administrative Agent and the Lender Parties
are mutually desirous of amending the Credit Agreement to make certain changes
in connection with the recent adoption of the Euro as the common currency of
certain participating member states of the European Union, including the Federal
Republic of Germany;
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lender Parties amend the Credit Agreement to allow the Borrower to incur
additional senior subordinated debt in an amount not to exceed $50,000,000;
WHEREAS, the Borrower has requested that the Administrative Agent and
Lender Parties amend the Credit Agreement and certain of the other Loan
Documents to permit the proposed acquisitions and proposed changes in the
organizational structure of the Borrower and its Subsidiaries; 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, 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 of the Credit Agreement is amended to include the
following definitions in the appropriate alphabetical order:
"'ADDITIONAL SENIOR SUBORDINATED DEBT' has the meaning
specified in Section 5.02(b)(viii)."
"'ADDITIONAL SENIOR SUBORDINATED DEBT DOCUMENTS' means the
indenture, notes and all other documents, instruments and agreements
executed and delivered in connection with the original issuance of any
Additional Senior Subordinated Debt, each of which indenture, notes and
other documents, instruments and agreements shall satisfy the
requirements set forth in Section 5.02(b)(viii), and in each case, as
the same shall, subject to the terms of this Agreement, be amended,
supplemented or otherwise modified and in effect from time to time."
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"'CONVERSION DATE' means, for any European country, the date,
if any, on which such country adopts the Euro as a lawful currency of
such country and on which the European Central Bank sets an official
exchange rate for such country's currency against the Euro."
"'EURO' means the common currency adopted by those member
states of the European Union participating in the program of
introducing, changing over to and operating a single or unified
European currency."
2.2 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 "Danish Crowns"
the words "the Euro".
2.3 Section 1.01 of the Credit Agreement is further amended by
inserting in the definition of "ASSIGNED DOLLAR VALUE" before the words "Pounds
Sterling" in clause (b)(ii)(A) thereof the words "the Euro,".
2.4 Section 1.01 of the Credit Agreement is further amended by deleting
the definition of "Exchange Rate" in its entirety and replacing with the
following:
"'EXCHANGE RATE' shall mean, on any day, (a) with respect to
the Euro, Pounds Sterling (prior to the Conversion Date for the United
Kingdom), Danish Crowns (prior to the Conversion Date for Denmark) and
Deutsche Marks (prior to the Conversion Date for the Federal Republic
of Germany), the spot rate at which U.S. Dollars are offered on such
day by the Administrative Agent in London for such Alternative Currency
at approximately 11:00 A.M. (London time), (b) with respect to U.S.
Dollars in relation to the Euro, Pounds Sterling (prior to the
Conversion Date for the United Kingdom), Danish Crowns (prior to the
Conversion Date for Denmark) and Deutsche Marks (prior to the
Conversion Date for the Federal Republic of Germany), the spot rate at
which such Alternative Currency is offered on such day by the
Administrative Agent in London for U.S. Dollars at approximately 11:00
A.M. (London time) and (c) with respect to Pounds Sterling (on and
after the Conversion Date for the United Kingdom), Danish Crowns (on
and after the Conversion Date for Denmark) and Deutsche Marks (on and
after the Conversion Date for the Federal Republic of Germany), the
official exchange rate for such currency as recognized by the European
Central Bank on the Conversion Date for such country. For purposes of
determining the Exchange Rate in connection with an Alternative
Currency Revolving Credit Borrowing, such Exchange Rate shall be
determined as of the Exchange Rate Determination Date for such
Borrowing. The Administrative Agent shall provide Borrower with the
then current Exchange Rate from time to time upon Borrower's request
therefor."
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2.5 Section 4.01(c) of the Credit Agreement is amended in the following
respects:
(a) By inserting in the third line thereof after the words
"Senior Subordinated Note Document" the words "and Additional Senior
Subordinated Debt Document, if any, "; and
(b) By inserting in the fourth line thereof after the words
"Senior Subordinated Notes" the words "and Additional Senior
Subordinated Debt (if such an offering is made)".
2.6 Section 4.01(d) of the Credit Agreement is amended in the following
respects:
(a) By inserting in the fifth line thereof after the words
"Senior Subordinated Note Document" the words "or Additional Senior
Subordinated Debt Document"; and
(b) By inserting in the sixth line thereof after the words
"Senior Subordinated Notes" the words "or Additional Senior
Subordinated Debt (if such an offering is made)".
2.7 Section 4.01(e) of the Credit Agreement is amended by inserting the
following additional sentence at the end thereof:
"If any Additional Senior Subordinated Debt is incurred (it being
understood that any such incurrence must be made in compliance with the
terms and conditions of this Agreement), each Additional Senior
Subordinated Debt Document, when delivered, will have been duly
executed and delivered by each Loan Party thereto and will be the
legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms."
2.8 Section 4.01(hh) of the Credit Agreement is amended in the
following respects:
(a) By inserting before the words "Senior Subordinated Notes"
in the first line thereof the words "Additional Senior Subordinated
Debt or";
(b) By inserting in the twelfth line thereof before the period
(I.E. ".") at the end of the first sentence of such Section 4.01(hh)
the following:
"or Senior Debt or any comparable term (as defined in the Additional
Senior Subordinated Debt Documents) and Designated Senior Debt or any
comparable term (as defined in the Additional Senior Subordinated Debt
Documents)";
(c) By inserting in the fourteenth line thereof after the
words "Senior Subordinated Note Documents" the words "or Additional
Senior Subordinated Debt Documents, as the case may be,"; and
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(d) By inserting in the sixteenth line thereof after the words
"(and to the holders thereof)" the following:
"or, in the case of the Additional Senior Subordinated Debt Documents,
in respect of Senior Debt and Designated Senior Debt or any comparable
terms (as defined in the Additional Senior Subordinated Debt
Documents)(and to the holders thereof)".
2.9 Section 5.02(a) of the Credit Agreement is amended by deleting from
clause (v) thereof the words "Section 5.02(b)(iii)(B)" and inserting in place
thereof the words "Section 5.02(b)(iv)(B)".
2.10 Section 5.02(b) of the Credit Agreement is amended as follows:
(a) By deleting the word "and" from the end of clause (vi)
thereof; and
(b) By deleting the period at the end of clause (vii) thereof
and replacing it with the following:
";
(viii) Debt of a Target assumed in connection with a Permitted
Acquisition; PROVIDED, THAT, (A) such Debt was pre-existing Debt of the
Target not incurred in connection with, or contemplation of, the
Permitted Acquisition, (B) such Debt is unsecured, (C) the amount of
such Debt is included as part of the sum of all amounts payable in
connection with all Permitted Acquisitions during the relevant Fiscal
Year as required for purposes of determining whether the condition to
such Permitted Acquisition set forth in clause (4) of Section
5.02(d)(iii)(B) has been satisfied and (D) all of the conditions to
such Permitted Acquisition set forth in Section 5.02(d)(iii)(B),
including, without limitation, the conditions set forth in clauses (4),
(5), (6) and (7) of such Section 5.02(d)(iii)(B), are fully satisfied;
and
(ix) unsecured, fully subordinated Debt of the Borrower and those of
its Subsidiaries which are Restricted Subsidiaries under the Senior
Subordinated Note Indenture in an aggregate amount not to exceed
$50,000,000 (the "ADDITIONAL SENIOR SUBORDINATED DEBT"); PROVIDED,
THAT, (A) such Additional Senior Subordinated Debt is issued pursuant
to and evidenced by Additional Senior Subordinated Debt Documents
containing subordination provisions which are at least as favorable, as
determined by the Administrative Agent, to the interests and rights of
the Administrative Agent and the Lender Parties as those contained in
the Senior Subordinated Note Indenture and the other Senior
Subordinated Note Documents, (B) the Additional Senior Subordinated
Debt Documents contain terms and conditions, other than interest rate
and other pricing terms, which are no less favorable, as determined by
the Administrative Agent, to the Administrative Agent and the Lender
Parties than those contained in the Senior Subordinated Note Indenture
and the other Senior Subordinated Note Documents (it being understood
that the Borrower, in its discretion, may agree to interest rate and
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other pricing terms which are then available for such subordinated Debt
in the financial marketplace) and (C) no Default or Event of Default
shall have occurred and be continuing, either before or after giving
effect to the incurrence of such Additional Senior Subordinated Debt.
If Additional Senior Subordinated Debt is issued pursuant to and
evidenced by the Senior Subordinated Note Indenture and the other
Senior Subordinated Note Documents it shall automatically be deemed to
have satisfied the requirements set forth in subclauses (A) and (B) of
this clause (ix) (it being understood that the Borrower, in its
discretion, may agree to interest rate and other pricing terms which
are then available for such subordinated Debt in the marketplace) and
with respect to such Additional Senior Subordinated Debt, the Senior
Subordinated Note Indenture and other Senior Subordinated Note
Documents shall for all purposes of this Credit Agreement be deemed to
be and constitute the Additional Senior Subordinated Debt Documents
governing such Additional Senior Subordinated Debt.".
2.11 Section 5.02(d)(iii)(6) of the Credit Agreement is amended as
follows:
(a) By inserting in the first line thereof after the words
"Permitted Acquisition," the following: "(A) if the Target is an entity
organized under the laws of the United States of America or any State
thereof,";
(b) By inserting before the word "Significant" in the sixth
line thereof the word "Domestic";
(c) By inserting after the words "capital stock" and before
the comma (I.E. ",") in the seventh line thereof the following: "and in
sixty-five percent (65%) of each of its Foreign Significant
Subsidiaries' capital stock"; and
(d) By inserting at the end thereof after the words "in
connection therewith;" the following:
"or (B) if the Target is an entity organized under the laws of any
jurisdiction other than the United States of America or any State
thereof and if, after giving pro forma effect to the Permitted
Acquisition, the Target would be a Significant Subsidiary, the
Administrative Agent, on behalf of the Secured Parties, shall be
granted a first priority Lien (subject to no other Liens) in sixty-five
percent (65%) of the Target's capital stock and the Borrower, each of
the Borrower's Subsidiaries and the Target and each of the Target's
Subsidiaries shall each have executed and delivered all such Collateral
Documents, legal opinions and other documents and taken all such
actions as may be required by the Administrative Agent in connection
therewith".
2.12 Section 5.02(f) of the Credit Agreement is amended as follows:
(a) By deleting the word "and" from the end of clause (iv)
thereof; and
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(b) By deleting the period at the end of clause (v) thereof
and replacing it with the following:
"; and
(vi) Investments consisting of Permitted Acquisitions.".
2.13 Section 5.02(k) of the Credit Agreement is amended as follows:
(a) By inserting in the fifth and sixth lines of clause (i)
thereof, in each such case, after the words "the Senior Subordinated
Notes" the following:
"or Additional Senior Subordinated Debt";
(b) By inserting in subclause (C) of clause (i) thereof after
the words "the Senior Subordinated Note Indenture" the following:
"or Additional Senior Subordinated Debt in accordance with the terms
and conditions of the Additional Senior Subordinated Debt Documents";
(c) By inserting in subclause (D) of clause (i) thereof after
the words "Senior Subordinated Notes" the following:
"or Additional Senior Subordinated Debt";
(d) By inserting in subclause (D) of clause (i) thereof after
the words "Senior Subordinated Note Indenture" the following:
"or Additional Senior Subordinated Debt Documents, as the case may
be,";
(e) By inserting in subclause (E) of clause (i) thereof after
the words "Senior Subordinated Note Documents" the following:
"or Additional Senior Subordinated Debt Documents"; and
(f) By inserting in clause (ii) thereof after the words
"Senior Subordinated Notes" the following:
"and Additional Senior Subordinated Debt".
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2.14 Section 5.02(l) of the Credit Agreement is amended as follows:
(a) By inserting in the first line thereof in the heading
before the words "or Senior Subordinated Note Documents" the words
"Additional Senior Subordinated Debt Documents,"; and
(b) By inserting in the second, fourth, sixth and eighth lines
thereof, in each such case, before the words "or Senior Subordinated
Note Document" the words ", Additional Senior Subordinated Debt
Document".
2.15 Section 5.03(o) of the Credit Agreement is amended by inserting in
the third and eighth lines thereof, in each such case, after the words "Senior
Subordinated Note Document" the words ", Additional Senior Subordinated Debt
Document".
2.16 Section 5.04 (c) of the Credit Agreement is amended by inserting
in subclause (x) of clause (ii) thereof after the words "Senior Subordinated
Notes" the words "and Additional Senior Subordinated Debt".
2.17 Section 6.01(e) of the Credit Agreement is amended by inserting in
the third line thereof after the words "Senior Subordinated Notes" the words "or
Additional Senior Subordinated Debt".
2.18 Section 6.01(r) of the Credit Agreement is amended as follows:
(a) By inserting in the first line thereof before the words
"Senior Subordinated Notes" the words "Additional Senior Subordinated
Debt,";
(b) By inserting in the thirteenth line thereof just before
the period (I.E. ".") at the end of the first sentence of such Section
6.01(r) the following:
"or Senior Debt or any comparable term (as defined in the Additional
Senior Subordinated Debt Documents) and Designated Senior Debt or any
comparable term (as defined in the Additional Senior Subordinated Debt
Documents)"; and
(c) By inserting in the fifteenth line thereof after the words
"(and to the holders thereof)" the following:
"or, in the case of the Additional Senior Subordinated Debt Documents,
in respect of Senior Debt and Designated Senior Debt or any comparable
terms (as defined in the Additional Senior Subordinated Debt
Documents)(and to the holders thereof)".
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2.19 Section 8.04 (b) of the Credit Agreement is amended as follows:
(a) By deleting the word "or" from immediately prior to clause
(v) in the eighteenth line thereof;
(b) By inserting after the words "Loan Party or any of its
Subsidiaries" in the twentieth line thereof the following:
"or (vi) the offering and/or issuance of the Additional Senior
Subordinated Debt or any related transaction of the Borrower or any of
its Subsidiaries or other Affiliates and any of the other transactions
contemplated by the Additional Senior Subordinated Debt Documents";
(c) By inserting in the thirtieth line thereof before the
words "the Facilities" the words "the Additional Senior Subordinated
Debt,"; and
(d) By inserting in the thirty-second line thereof after the
words "the Senior Subordinated Note Documents" the words ", the
Additional Senior Subordinated Debt Documents".
2.20 The following shall be inserted into the Credit Agreement after
Section 8.13 as a new Section 8.14:
"Section 8.14. THE EURO AND CONTINUITY OF CONTRACT. On the
Conversion Date for each of the United Kingdom, Denmark or the Federal
Republic of Germany, as the case may be, all references to Pounds
Sterling, Danish Crowns or Deutsche Marks, as the case may be, shall be
substituted in this Credit Agreement by the Euro for all purposes. From
and after the Conversion Date for each of the United Kingdom, Denmark
or the Federal Republic of Germany, as the case may be, any amount
payable hereunder or under any other Loan Document by the
Administrative Agent or any Lender Party to the Borrower, by the
Borrower or any Guarantor to the Administrative Agent or any Lender
Party, by any Lender Party to any other Lender Party or the
Administrative Agent or by the Administrative Agent to any Lender
Party, shall be paid in the Euro and not in Pounds Sterling, Danish
Crowns or Deutsche Marks, as the case may be. Neither the introduction
of the Euro, nor the substitution of Pounds Sterling, Danish Crowns or
Deutsche Marks, as the case may be, as a lawful currency of the United
Kingdom, Denmark or the Federal Republic of Germany, respectively, nor
the fixing of the official conversion rate, nor any economic
consequences that arise from or in connection with any of the
aforementioned events shall cause this Credit Agreement to terminate or
give rise to any right to terminate prematurely, contest, cancel,
rescind, modify or otherwise renegotiate or alter this Credit Agreement
or any of its provisions, or to raise any other objections and/or
exceptions or to assert any claims for compensation under or in
connection with this Credit Agreement. As of January 1, 1999, with
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respect to the Federal Republic of Germany and for all purposes of the
Credit Agreement and each of the other Loan Documents, the Conversion
Date has occurred."
3. CONSENTS TO CORPORATE RESTRUCTURING TRANSACTIONS.
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). Notwithstanding the provisions of such
Section 5.01(f), but subject to the conditions precedent set forth in Section
3.4 and the other terms and conditions of this Amendment, the Administrative
Agent and Lender Parties hereby consent to (a) the Yale Merger, (b) the LICO
Conveyor Merger, (c) the LICO Merger, (d) the dissolution (the "LICO
INTERNATIONAL DISSOLUTION") of LICO International Corporation, a foreign sales
corporation and a wholly-owned Subsidiary of LICO ("LICO INTERNATIONAL"), or,
alternatively, the merger of LICO International with and into Audubon Export,
Inc., a foreign sales corporation and a direct wholly-owned Subsidiary of the
Borrower ("AUDUBON EXPORT"), with Audubon Export as the surviving corporation
(the "LICO INTERNATIONAL MERGER"), (e) the dissolution (collectively, the
"XXXX-XXXXXX ASIA DISSOLUTIONS") of Xxxx-Xxxxxx Asia Pacific Pty. Ltd.
("XXXX-XXXXXX ASIA") and Kunming Xxxx-Xxxxxx Machinery Company Limited ("KUNMING
XXXX-XXXXXX"), each of which is currently an inactive company, (f) the transfer
(the "YALE UK TRANSFER") of all of the outstanding shares of capital stock of
Yale Industrial Products Ltd., a wholly-owned Subsidiary of Yale ("YALE UK"), to
Yale Industrial Products GmbH, a direct wholly-owned Subsidiary of Yale ("YALE
GERMANY"); PROVIDED, THAT, there shall be no material tax impact as a result of
the Yale UK Transfer, as determined by the Administrative Agent, and (g) the
transfer (the "EGYPTIAN TRANSFER") of the ownership interest in Egyptian
American Crane Company, an existing joint venture, from Yale to Yale Germany;
PROVIDED, THAT, there shall be no material tax impact as a result of the
Egyptian Transfer, as determined by the Administrative Agent.
3.2 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. Section
5.02(d)(ii) of the Credit Agreement prohibits, among other things, the Borrower
or any of its Subsidiaries from liquidating, winding up or dissolving itself.
Notwithstanding the provisions of such Sections 5.02(d)(i) and 5.02(d)(ii), but
subject to the conditions precedent set forth in Section 3.4 and the other terms
and conditions of this Amendment, the Administrative Agent and Lender Parties
hereby consent to (a) the Yale Merger, (b) the LICO Conveyor Merger, (c) the
LICO Merger, (d) the LICO International Dissolution or, alternatively, the LICO
International Merger, (e) the Xxxx-Xxxxxx Asia Dissolutions, (f) the Yale UK
Transfer and (g) the Egyptian Transfer.
3.3 Section 5.02(i) of the Credit Agreement, among other things,
prohibits the Borrower or any of its Subsidiaries from amending its certificate
or articles of incorporation or bylaws. Notwithstanding the provisions of such
Section 5.02(i), but subject to the conditions precedent set forth in Section
3.4 and the other terms and conditions of this Amendment, the Administrative
Agent and Lender Parties consent to any amendments of the certificate or
articles of incorporation and bylaws of Yale, LICO Conveyor, ASI, LICO, LICO
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International, Audubon Export, Xxxx-Xxxxxx Asia, Kunming Xxxx-Xxxxxx, Yale UK or
Yale Germany, as the case may be, that are reasonably necessary to carry out the
Yale Merger, the LICO Conveyor Merger, the LICO Merger, the LICO International
Dissolution or, alternatively, the LICO International Merger, the Xxxx-Xxxxxx
Asia Dissolutions or the Yale UK Transfer, as the case may be, in each instance
to the extent, and solely to the extent, that such amendments are in form and
substance reasonably acceptable to the Administrative Agent.
3.4 Each transaction consented to in Section 3.1, 3.2 and 3.3 above is
subject to the satisfaction, as determined by the Administrative Agent, of each
of the following conditions precedent:
(a) The Borrower shall have delivered to the Administrative
Agent such Amended and Restated Schedules to each of the Credit
Agreement, Security Agreement and Intellectual Property Security
Agreement to replace such existing Schedules which, upon the
consummation of such transaction, shall no longer be true, correct and
complete, including, by way of example only and not of limitation, to
the extent applicable:
(i) Schedule 3.01(a)(ix to the Credit Agreement,
STATES IN WHICH LOAN PARTIES ARE QUALIFIED
TO DO BUSINESS;
(ii) Schedule 4.01(b) to the Credit Agreement,
SUBSIDIARIES;
(iii) Schedule 4.01(k) to the Credit Agreement,
PLANS, MULTIEMPLOYER PLANS AND WELFARE
PLANS;
(iv) Schedule 4.01(bb) to the Credit Agreement,
OWNED REAL ESTATE;
(v) Schedule 4.01(cc) to the Credit Agreement,
LEASED REAL ESTATE;
(vi) Schedule 4.01(ff) to the Credit Agreement,
INTELLECTUAL PROPERTY;
(vii) Schedule I to the Security Agreement,
PLEDGED SHARES AND PLEDGED DEBT;
(viii) Schedule III to the Security Agreement,
LOCATIONS OF EQUIPMENT AND INVENTORY;
(ix) Schedule IV to the Security Agreement,
TRADE NAMES;
(x) Schedule I to the Intellectual Property
Security Agreement, PATENTS AND PATENT
APPLICATIONS;
(xi) Schedule II to the Intellectual Property
Security Agreement, TRADEMARK REGISTRATIONS
AND APPLICATIONS;
(xii) Schedule III to the Intellectual Property
Security Agreement COPYRIGHT REGISTRATIONS
AND APPLICATIONS; and
(xiv) Schedule IV to the Intellectual Property
Security Agreement, LICENSES.
(b) The Borrower shall, and shall have caused each of its
Domestic Subsidiaries 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
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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 the Borrower and its
Domestic Subsidiaries.
(c) As of the date of the consummation of such transaction, no
Default or Event of Default shall have occurred and be continuing.
(d) The representations and warranties contained in Section 5
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 such transaction, as though made on such date.
(e) The Borrower shall, and shall have caused its Subsidiaries
to, have taken all such actions and executed and delivered all such
agreements, instruments, legal opinions and other documents as the
Administrative Agent shall have reasonably requested in connection with
such transaction.
3.5 The foregoing consents in Sections 3.1, 3.2 and 3.3 are only
applicable and shall only be effective in the specific instances and for the
specific purposes for which made. Such consents are 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. CONSENTS TO ACQUISITIONS
4.1 Section 5.02(d)(iii)(B) of the Credit Agreement permits the
Borrower or any wholly-owned Subsidiary of the Borrower to make Permitted
Acquisitions subject to the satisfaction of certain conditions, number (4) of
which is that the sum of all amounts payable in connection with all Permitted
Acquisitions (including all transaction costs and all Debt, liabilities and
contingent obligations incurred or assumed in connection therewith or otherwise
reflected on a balance sheet of the Target) shall not exceed $35,000,000 in the
aggregate in any Fiscal Year. Notwithstanding the provisions of such condition
number (4) of Section 5.02(d)(iii)(B), but subject to the conditions precedent
set forth in Section 4.3 and the other terms and conditions of this Amendment,
the Administrative Agent and Lender Parties hereby consent to (a) the
acquisition (the "TIGRIP/CAMLOK ACQUISITION") by Yale Germany of Camlok Lifting
Clamps Limited, a company organized under the laws of England and Wales, and the
assets of the Tigrip product line, in each case from Xxxxxxx-Xxxxxx & Co. GmbH;
PROVIDED, THAT, (i) the Tigrip/Camlok Acquisition shall be financed by Yale
Germany and not by the Borrower, (ii) no portion of the proceeds of any
Borrowing under the Credit Agreement shall be used to finance the Tigrip/Camlok
Acquisition, (iii) neither the Borrower nor any of its Domestic Subsidiaries
shall guarantee the payment of the purchase price for the Tigrip/Camlok
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Acquisition or any loan agreement or other financing incurred by Yale Germany to
finance the Tigrip/Camlok Acquisition, (iv) the aggregate purchase price paid by
Yale Germany for the Tigrip/Camlok Acquisition shall not exceed the Dollar
Equivalent of $11,000,000; and (v) the terms and conditions of the Tigrip/Camlok
Acquisition shall otherwise be satisfactory to the Administrative Agent; (b) the
acquisition (the "GL ACQUISITION") by the Borrower of all of the outstanding
shares of capital stock of GL International, Inc. ("GL"); PROVIDED, THAT, (i) no
more than 1,333,333 shares of common stock of the Borrower and no other
consideration, except for cash paid in lieu of fractional shares and the payment
of transaction costs, shall be exchanged for all of the outstanding shares of
capital stock of GL in full payment of the purchase price for the GL
Acquisition, (ii) the terms and conditions of the GL Acquisition shall otherwise
be satisfactory to the Administrative Agent and (iii) the Administrative Agent
and its counsel shall have completed a due diligence investigation in scope and
with results satisfactory to the Administrative Agent; and (c) the acquisition
(the "WASHINGTON EQUIPMENT ACQUISITION") by the Borrower of all of the
outstanding shares of capital stock of Washington Equipment Company ("WASHINGTON
EQUIPMENT"); PROVIDED, THAT, (i) the aggregate purchase price of the Washington
Equipment Acquisition shall not exceed $6,900,000, (ii) no portion of the
proceeds of any Borrowing under the Credit Agreement shall be used to finance
the Washington Equipment Acquisition and (iii) the terms and conditions of the
Washington Equipment Acquisition shall otherwise be satisfactory to the
Administrative Agent. In furtherance and not in limitation of the foregoing, and
notwithstanding the various provisions of the Credit Agreement and the other
Loan Documents, the Administrative Agent and Lender Parties consent to the
Borrower, if the Borrower so elects, (i) structuring the GL Acquisition by
having a newly-formed, wholly-owned Subsidiary merge into GL, or having GL merge
into such a Subsidiary, with GL being the surviving corporation of such merger
and thereupon being a wholly-owned Subsidiary of the Borrower and (ii)
structuring the Washington Equipment Acquisition by having a newly-formed,
wholly-owned Subsidiary merge into Washington Equipment, or having Washington
Equipment merge into such a Subsidiary, with Washington Equipment being the
surviving corporation of such merger and thereupon being a wholly-owned
Subsidiary of the Borrower.
4.2 Section 5.02(r) of the Credit Agreement, among other things,
prohibits the Borrower from issuing any shares of its capital stock, subject to
certain exceptions, none of which exceptions is available in connection with the
GL Acquisition. Notwithstanding the provisions of such Section 5.02(r), but
subject to the conditions precedent set forth in Section 4.3 and the other terms
and conditions of this Amendment, the Administrative Agent and Lender Parties
consent to the issuance of up to 1,333,333 shares of common stock of the
Borrower in exchange for all of the outstanding shares of capital stock of GL in
order to consummate the GL Acquisition.
4.3 Each transaction consented to in Section 4.1 and 4.2 above is
subject to the satisfaction, as determined by the Administrative Agent, of each
of the following conditions precedent:
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(a) Except as expressly set forth in Section 4.1 of this
Amendment, such transaction shall be consummated in full compliance
with each of the conditions set forth in Section 5.02(d)(iii) of the
Credit Agreement.
(b) Except as expressly set forth in Section 4.1 and 4.2 of
this Amendment, such transaction shall be consummated in full
compliance with each of the terms and conditions contained in the
Credit Agreement and each other Loan Document (it being understood
that, for purposes of determining whether the provisions set forth in
clauses (C) and (D) of the proviso of Section 5.02(b)(viii) of the
Credit Agreement have been satisfied, compliance with the provisions of
condition (4) of Section 5.02(d)(iii)(B) of the Credit Agreement is
waived as and to the extent expressly set forth in Section 4.1 of this
Amendment).
(c) Neither the Borrower nor any Subsidiary of the Borrower
shall consummate any additional Permitted Acquisition prior to the end
of the Fiscal Year ending March 31, 1999, without the prior written
consent of the Administrative Agent and Lenders.
(d) As of the date of the consummation of such transaction, no
Default or Event of Default shall have occurred and be continuing.
(e) The representations and warranties contained in Section 5
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 such transaction, as though made on such date.
(f) The Borrower and the Target shall, and shall have caused
their respective Subsidiaries to, have taken all such actions and
executed and delivered all such agreements, instruments, legal opinions
and other documents as the Administrative Agent shall have reasonably
requested in connection with such transaction.
4.4 The foregoing consents in Sections 4.1 and 4.2 are only applicable
and shall only be effective in the specific instances and for the specific
purposes for which made. Such consents are 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.
5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
5.1 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
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represents, warrants and affirms that the Credit Agreement and each of the other
Loan Documents remains in full force and effect.
5.2 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.
5.3 The execution, delivery and/or performance by each applicable Loan
Party of this Amendment, the reaffirmations and confirmations attached hereto,
each other Loan Document, each document comprising or effectuating the
transactions consented to in Sections 3 and 4 of this Amendment, and each other
agreement or document related to or contemplated by the foregoing to which it is
or is to be a party or otherwise bound, and the consummation of the transactions
consented to in Sections 3 and 4 of this Amendment, 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 and except for the Liens created solely on the assets of Yale Germany
in connection with the financing by Yale Germany of the purchase price to be
paid for the Tigrip/Camlok Acquisition, 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.
5.4 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.
5.5 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 execu tion, 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
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Loan Documents or remedies in respect of the Collateral pursuant to the
Collateral Documents.
6. 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:
6.1 AMENDMENT DOCUMENTATION.
(a) The Borrower shall have duly executed and delivered this
Amendment.
(b) The Borrower shall have delivered a certificate of its
Secretary or Assistant Secretary certifying as to each of the
following: (i) resolutions of the Borrower's Board of Directors
authorizing the execution and delivery of this Amendment and the other
agreements, instruments and documents contemplated hereby, and each of
the various transactions contemplated hereby, (ii) all documents
evidencing other necessary corporate action, if any, (iii) copies of
all approvals or consents, if any, necessary with respect to this
Amendment and (iv) the names and signatures of the Borrower's officers
authorized to sign this Amendment and all other documents,
certificates, instruments or agreements to be delivered hereunder or in
connection herewith.
(c) The Administrative Agent shall have received the opinion
of Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx, counsel for the
Borrower, and/or other counsel to the Borrower, all in form and
substance satisfactory to, and covering such matters as are requested
by, the Administrative Agent and its counsel and to include an express
statement to the effect that the Administrative Agent and Lender
Parties are authorized to rely on such opinion.
(d) No new UCC-1 Financing Statement, other financing
statement, mortgage or other instrument perfecting any Lien shall have
been filed with respect to any real or personal property owned, leased
or otherwise held by the Borrower, any Guarantor or any other
Subsidiary of the Borrower since March 31, 1998, other than filings in
favor of the Administrative Agent, on behalf of the Secured Parties.
(e) The Borrower and its Subsidiaries shall have delivered
such other documents and taken such other actions as the Administrative
Agent may reasonably request.
6.2 NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing.
6.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 5 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.
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6.4 AMENDMENT FEES. 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 0.05% (i.e. 5 basis points) of such
Approving Lender's Revolving Credit Commitment.
6.5 OTHER CONDITIONS PRECEDENT.
(a) The Borrower shall have taken all actions and executed and
delivered all agreements, instruments and other documents necessary, or
otherwise requested by the Administrative Agent, in order to grant to
the Administrative Agent, on behalf of the Secured Parties, a perfected
first priority security interest in all personal property acquired by
the Borrower from Xxxxx-Xxxx Company, including, without limitation,
the filing of UCC-1 financing statements and the making of all
intellectual property filings.
(b) The Administrative Agent shall have received such other
information, approvals, opinions, instruments, agreements or documents
as any Lender through the Administrative Agent may reasonably request,
the Borrower and its Subsidiaries shall have taken all such other
actions as any Lender through the Administrative Agent may reasonably
request, and all legal matters incident to the foregoing shall be
satisfactory to the Administrative Agent and its counsel.
7. COVENANTS.
7.1 COLLATERAL FILINGS The Borrower and its Subsidiaries hereby
covenant and agree to cooperate with the Administrative Agent in any manner
necessary or desirable in order to continue, or, in the case of after-acquired
property, create, the perfected first and only priority security interest of the
Administrative Agent, on behalf of the Secured Parties, in all Collateral of the
Borrower and its Subsidiaries, whether now owned or hereafter acquired by any of
them.
7.2 ASSUMPTION OF LIABILITIES UNDER THE LOAN DOCUMENTS. The Borrower
hereby covenants and agrees to assume and discharge, upon the consummation of
the Yale Merger, all liabilities and obligations of Yale under, in respect of or
otherwise relating to the Credit Agreement or any other Loan Document. ASI
hereby covenants and agrees to assume and discharge, upon the consummation of
the LICO Merger, all liabilities and obligations of LICO under, in respect of or
otherwise relating to the Credit Agreement or any other Loan Document.
8. EFFECTIVENESS OF AMENDMENT.
8.1 This Amendment shall not become effective unless and until each of
the conditions precedent set forth in Section 6 hereof has been satisfied.
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8.2 In the event that the Borrower or any other Loan Party breaches or
otherwise fails to fulfill any of the conditions precedent, covenants,
agreements, representations and warranties or obligations under this Amendment
and the Borrower or such other Loan Party fails to remedy such breach or
otherwise fulfill or satisfy such condition precedent, covenant, agreement,
representation and warranty or obligation to the Administrative Agent's
satisfaction within thirty (30) days following notice thereof, then, upon
expiration of such thirty (30) day period, automatically and without any further
act or deed by the Administrative Agent, any Lender Party, any Loan Party or any
other Person, an Event of Default shall be deemed to have occurred under the
Credit Agreement and the Administrative Agent and the Lender Parties shall be
entitled to all of the rights and remedies available following the occurrence of
an Event of Default under the Credit Agreement and the other Loan Documents, at
law or in equity.
9. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
9.1 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.
9.2 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 consents set forth
in Sections 3 and 4 hereof (in each instance subject to the terms and conditions
of such consents set 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.
10. 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.
11. 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.
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12. 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.
13. 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 12th day of February, 1999.
YALE INDUSTRIAL PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
------------------------------
Title: Treasurer
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/ Xxxx Megeaski
---------------------------
Title: Vice President
---------------------------
By: /s/ Xxxxxx Xxxxxx
---------------------------
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 X. Xxxxxx
-------------------------
Title: Vice President
-------------------------
LENDERS
MARINE MIDLAND BANK, AS A CO-AGENT AND
LENDER
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Title: Authorized Signatory
-------------------------
LENDERS
COMERICA BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Title: Assistant Vice President
-------------------------
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/ Xxxxxx X. Xxxxxxxx
--------------------------
Title: Vice President
--------------------------
LENDERS
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx XxXxxxxx
------------------------
Title: Principal
------------------------
LENDERS
THE BANK OF NEW YORK
By: /s/ Xxxxxx XxXxxxxx
---------------------
Title: Vice President
---------------------
LENDERS
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X Xxxxx
---------------------------
Title: Vice President
---------------------------
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Marketing Officer
---------------------------
LENDERS
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Title: Vice President
-----------------------
