THIRD AMENDMENT
TO AMENDED AND RESTATED
LOAN AGREEMENT AMONG
COLUMBUS XXXXXXXX CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST,
COLUMBUS XXXXXXXX CORPORATION,
AND MARINE MIDLAND BANK
This Third Amendment to Amended and Restated Loan Agreement
("Amendment") is made as of the 30th day of November, 1998 by and among Columbus
XxXxxxxx Corporation Employee Stock Ownership Trust, a trust which was created
under the laws of the State of New York ("Borrower"), Columbus XxXxxxxx
Corporation, a corporation organized under the laws of the State of New York
("Guarantor"), and Marine Midland Bank, a banking corporation organized under
the laws of the State of New York ("Bank").
W I T N E S S E T H
WHEREAS, Bank, Guarantor and Borrower were parties to a Loan Agreement
dated October 27, 1994 ("Original Loan Agreement"); and
WHEREAS, Guarantor, the banks, financial institutions and other
institutional lenders party thereto, and Fleet National Bank, as Administrative
Agent, have previously entered into a Credit Agreement dated as of March 31,
1998 ("Credit Agreement"); and
WHEREAS, the Original Loan Agreement was amended and restated on
August 5, 1996 and further amended by the First Amendment thereto dated as of
October 16, 1996, and by the Second Amendment thereto dated as of March 31, 1998
(the Original Loan Agreement, as so amended, the "Restated Agreement"); and
WHEREAS, the Credit Agreement has been amended pursuant to Amendment
No. 1 thereto dated as of September 23, 1998 to allow the Guarantor to make
certain secured loans to the Borrower in an aggregate amount up to $10,000,000
to purchase shares of stock of the Guarantor which shares of stock will be
pledged as security for the repayment of such loans ("Guarantor Loans");
WHEREAS, the Borrower has requested that the term of the Restated
Agreement be extended until April 1, 2002 and as consideration for such
extension, Guarantor has agreed that principal payments on the Guarantor Loans
shall not commence until after the maturity date of the loans under the Restated
Agreement;
WHEREAS, Bank, Guarantor and Borrower wish to amend the Restated
Agreement to provide for the Guarantor Loans, to provide for an extension of the
term of the Restated Agreement and to make certain other changes, as and to the
extent set forth in this Amendment and subject to the terms and conditions
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stated herein; it being understood that no additional money is being advanced in
connection with this Amendment and that the Note (as defined in the Restated
Agreement) is being replaced in its entirety in connection herewith
("Replacement Note").
NOW, THEREFORE, it is agreed as follows:
A. Definitions. All capitalized terms used but not herein defined
shall have the meanings set forth in the Restated Agreement.
B. Amendments. The Restated Agreement is hereby amended as follows:
1. Section 2.2 of the Restated Agreement is hereby deleted and
replaced in its entirety by the following:
"2.2 The Note. The Credit is evidenced by a replacement note made
by Borrower to Bank dated as of November 30, 1998 ("Note"), payable in
accordance with the terms and conditions set forth therein. The Note is
also subject to mandatory prepayment as set forth in Section 2.4(c) of this
Agreement."
2. Section 5.1 of the Restated Agreement is hereby deleted in its
entirety and replaced with the following:
"5.1 Borrowed Money. Create, incur, assume or suffer to exist any
liability for borrowed money (i) except to the Bank, (ii) except for an
existing loan from Fleet National Bank in the original amount of
$4,000,000.00 which loan was used only to purchase shares of stock of the
Guarantor, and (iii) except for a certain loan or loans from the Guarantor
in an aggregate principal amount up to $10,000,000 which loans shall be
used only to purchase shares of stock of the Guarantor ("Guarantor Loans"),
provided however that principal repayments on the Guarantor Loans shall not
commence until after the scheduled maturity date of the existing loans in
favor of the Bank."
3. Section 5.2 of the Restated Agreement is hereby deleted in its
entirety and replaced with the following:
"5.2 Encumbrances. Create, incur, assume or suffer to exist any
mortgage, lien, security interest, pledge or other encumbrance on any of
its property or assets, whether now owned or hereafter owned or acquired,
other than encumbrances in favor of the Bank and other than a pledge of
shares in favor of Fleet National Bank and/or Guarantor to secure payment
of the loans described in Section 5.1 above."
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C. Representations and Warranties.
1. The Borrower and the Guarantor have full power, authority and
legal right to enter into this Amendment, and to take all action required of
them under this Amendment. The Borrower hereby represents and warrants that the
execution, delivery and performance by the Borrower of this Amendment has been
duly authorized by all necessary action, if any, and that this Amendment is a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, except as the enforcement hereof may be
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally or to general
principles of equity.
2. The Borrower and the Guarantor each hereby represents and
warrants that the execution, delivery and performance of this Amendment by the
Borrower and the Guarantor, respectively does not, and will not, contravene or
conflict with any provision of (i) law or (ii) any judgment, decree or order,
and does not, and will not, contravene or conflict with, or cause any lien to
arise under, any provision of the Trust Agreement or any other agreement,
instrument or other document binding upon or otherwise affecting the Borrower,
the Guarantor, any property subject to the Trust Agreement or Plan, or any
property of the Guarantor.
3. All of the representations and warranties contained in the
Restated Agreement, after giving effect to this Amendment, including, without
limitation, those contained in Article 3 thereof, and each other agreement and
document executed in connection therewith are true and correct on and as of the
date hereof as though made on the date hereof, and no Event of Default exists
under the Restated Agreement or will exist after or be triggered by the
execution and delivery of this Amendment or any of the other agreements and
documents contemplated hereby. In addition, the Borrower hereby represents,
warrants and affirms that each of the other agreements and documents executed in
connection with or relating to the Restated Agreement remain in full force and
effect.
4. Guarantor hereby acknowledges that it has read the Amendment
and consents to the terms hereof and further confirms and agrees that,
notwithstanding the effectiveness of the Amendment, the obligations of the
Guarantor under the Guaranty shall not be impaired or affected and the Guaranty
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is and shall continue to be in full force and effect and is hereby confirmed.
D. Conditions Precedent to Amendments. The effectiveness of this
Amendment shall be subject to the fulfillment (to the satisfaction of the Bank)
of the following conditions precedent:
1. Amendment Documentation. The Borrower shall have delivered to
Bank all of the following, each duly executed if required, and dated the date
hereof, and each in form and substance satisfactory to Bank:
a. Amendment. The Borrower, the Bank and the Guarantor shall
have executed and delivered this Amendment.
b. Replacement Note. The Borrower shall have executed and
delivered to Bank the Replacement Note dated the date hereof in the principal
amount of $1,008,699.79.
c. Opinion of Counsel. Counsel to the Borrower shall have
delivered to Bank an opinion in form and substance satisfactory to Bank and its
counsel, which opinion shall include an express statement to the effect that
Bank is authorized to rely on such opinion.
d. Other. Such other documents and such other actions as
Bank may reasonably request.
2. No Default. As of the closing date of this Amendment, no Event
of Default shall have occurred or be continuing under the Restated Agreement
after giving effect to this Amendment.
3. Representations and Warranties. The representations and
Warranties set forth in Section C hereof shall be true and correct on the
closing date of this Amendment.
4. Legal Matters. All legal matters incident hereto shall be
satisfactory to counsel to the Bank.
E. Miscellaneous.
1. Except as specifically amended by this Amendment, the Restated
Agreement and each other agreement and document executed in connection therewith
shall remain in full force and effect and are hereby ratified and confirmed.
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
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or condition of the Restated Agreement or any other agreement or document
executed in connection therewith, except, upon the effectiveness of this
Amendment, as specifically amended hereby, or (ii) prejudice any right, power or
remedy which Bank now has or may have in the future under or in connection with
the Restated Agreement or any other agreement or document executed in connection
therewith. Upon the effectiveness of this Amendment, each reference in the
Restated Agreement to "this Agreement", "hereunder", "hereof", "herein" or any
other word or words of similar import shall mean and be a reference to the
Restated Agreement as amended hereby and each reference in any other agreement
or document executed in connection with the Restated Agreement to the Restated
Agreement or any word or words of similar import shall be and mean a reference
to the Restated Agreement as amended hereby.
3. 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.
4. Costs and Expenses. The Guarantor and the Borrower jointly and
severally shall reimburse Bank promptly for all reasonable costs and expenses,
including reasonable counsel fees and expenses, incurred by Bank in connection
with this Amendment, any indebtedness created or evidenced hereunder and, in the
case of Guarantor, any other obligations; and for costs and expenses, including
reasonable counsel fees, of Bank incident to the enforcement of any provision of
this Amendment, the Note, any other documents executed in connection with the
Restated Agreement and, in the case of the Guarantor, any other obligations.
5. 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.
6. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Borrower, Guarantor and Bank have entered into
this Third Amendment to Amended and Restated Loan Agreement on the date first
written above.
COLUMBUS XxXXXXXX CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST
By: /s/ Xxxxx X. Xxxxxx
---------------------------
XXXXX X. XXXXXX, as Trustee
under the Columbus XxXxxxxx
Corporation Employee Stock
Ownership Trust Agreement
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
XXXXXXX X. XXXXXX, as Trustee
under the Columbus XxXxxxxx
Corporation Employee Stock
Ownership Trust Agreement
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
------------------------------
XXXXXX X. XXXXXXXXXX, XX.,
as Trustee under the Columbus
XxXxxxxx Corporation Employee
Stock Ownership Trust
Agreement
COLUMBUS XxXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
------------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
Executive Vice President
MARINE MIDLAND BANK
By: /s/ X. X. Xxxxx
--------------------------
X.X. Xxxxx
Authorized Signatory
