AMENDED AND RESTATED
LOAN AGREEMENT
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COLUMBUS XXXXXXXX CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST
COLUMBUS XXXXXXXX CORPORATION
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MARINE MIDLAND BANK
DATED: August 5, 1996
TABLE OF CONTENTS
PAGE
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ARTICLE I Definitions.......................................... 1
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1.1 Definitions....................................... 1
1.2 Accounting Terms.................................. 3
ARTICLE II The Credit........................................... 3
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2.1 The Credit. . . . . . . . . . . . . . . . . . . . 3
2.2 The Note. . . . . . . . . . . . . . . . . . . . . 3
2.3 Interest. . . . . . . . . . . . . . . . . . . . . 4
2.4 Prepayment. . . . . . . . . . . . . . . . . . . . 5
2.5 Use of Proceeds . . . . . . . . . . . . . . . . . 6
2.6 Special Provisions Governing LIBOR Loans. . . . . 6
2.7 Taxes.............................................. 6
ARTICLE III Representations and Warranties...................... 7
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3.1 Authority.......................................... 7
3.2 Valid and Binding Obligation....................... 7
3.3 No Pending Litigation.............................. 7
3.4 No Consent or Filing............................... 7
3.5 Compliance With Laws and Regulations............... 7
3.6 Guarantor's Obligations. . . . . . . . . . . ...... 8
3.7 Federal Regulations................................ 8
3.8 Credit Agreement . . . . . . . . . . . . . . . . .. 8
ARTICLE IV Affirmative Covenants................................ 8
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4.1 Payments........................................... 8
4.2 Future Financial Statements........................ 8
4.3 Books and Records.................................. 8
4.4 Compliance with Law................................ 9
4.5 Use of Proceeds.................................... 9
4.6 Taxes.............................................. 9
4.7 ESOP............................................... 9
4.8 Reports and Notices................................ 9
4.9 Information........................................ 9
4.10 Amendments......................................... 9
4.11 Notice............................................ 10
4.12 Other Acts........................................ 10
4.13 Credit Agreement Affirmative Covenants . . . . . . 10
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ARTICLE V Negative Covenants................................... 10
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5.1 Borrowed Money.................................... 10
5.2 Encumbrances...................................... 10
5.3 Maintain Existence................................ 11
5.4 Credit Agreement Negative Covenants. . . . . . . . 11
ARTICLE VI Default............................................. 11
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6.1 Events of Default................................. 11
6.2 Effects of an Event of Default.................... 12
ARTICLE VII Expenses........................................... 13
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ARTICLE VIII Miscellaneous..................................... 13
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8.1 Amendments and Waivers............................ 13
8.2 Delays and Omissions.............................. 13
8.3 Successors and Assigns............................ 13
8.4 Notices........................................... 14
8.5 Governing Law..................................... 14
8.6 Counterparts...................................... 14
8.7 Titles............................................ 15
8.8 Inconsistent Provisions........................... 15
8.9 Course of Dealing................................. 15
8.10 Collateral Release................................ 15
8.11 The Trustee....................................... 15
8.12 Non-Recourse...................................... 16
8.13 JURY TRIAL WAIVER................................. 16
8.14 CONSENT TO JURISDICTION........................... 16
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AMENDED AND RESTATED LOAN AGREEMENT dated August 5, 1996 made
by and between 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").
WITNESSETH
WHEREAS, Bank, Guarantor and Borrower are parties
to a Loan Agreement dated October 27, 1994 ("Original Agreement"); and
WHEREAS, Fleet Bank, Bank, Fleet Bank as Administra-
tive Agent and Guarantor have entered into a Credit Agreement dated of even date
herewith ("Credit Agreement"); and
WHEREAS, Bank, Guarantor and Borrower wish to amend
and restate the Original Agreement in its entirety to incorporate certain
covenants and pricing provisions of the Credit Agreement; it being understood
that the no additional money is being advanced in connection with this Agreement
and that the Note (as defined hereinafter) is not being replaced and remains an
obligation of the Borrower.
NOW THEREFORE the parties agree as follows:
ARTICLE I. DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, unless otherwise
specified, the following terms shall have the following respective meanings:
"Business Day" - shall have the meaning set forth in the
Credit Agreement.
"Credit" - collectively, "Credit" as defined in Section 2.1 of
this Agreement.
"Credit Agreement" - the Credit Agreement between Fleet Bank,
Bank, Fleet Bank as Administrative Agent and Guarantor dated August 5, 1996, as
amended from time to time.
"Domestic Subsidiary" - any Subsidiary organized under the
laws of the United States or any state or territory thereof.
"ESOP" - the Columbus XxXxxxxx Corporation Employee Stock
Ownership Plan dated April 1, 1987, as amended and restated as of November 1,
1988, as amended and restated as of October 27, 1994.
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"Eurodollar Loan" - "LIBOR Loan" as defined hereinafter.
"Guaranty" - Guaranty by Guarantor to Bank dated October 27,
1994 guaranteeing the payment of any and all indebtedness and liabilities,
whether now existing or hereafter incurred of the Borrower to the Bank, as the
same may be amended or supplemented from time to time.
"Interest Period" - with respect to any LIBOR Loan, the period
commencing on the date such loan is made and ending, as the Borrower may select,
pursuant to Section 2.3(a) and (b) hereof, or the numerically corresponding day
in the first, second, third or sixth calendar month thereafter, except that each
such Interest Period that commences on the last Business Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(a) no Interest Period may extend beyond matur-
ity; and
(b) if an Interest Period would end on a day
that is not a Business Day, such Interest
Period shall be extended to the next
Business Day, unless such Business Day would
fall in the next calendar month in which
event such Interest Period shall end on the
immediately preceding Business Day.
"Leverage Ratio" - shall have the meaning set forth in the
Credit Agreement.
"LIBOR Interest Rate" - shall have the meaning set forth in
the Credit Agreement.
"LIBOR Loan" - a portion of the Credit for which the interest
rate is calculated based on the LIBOR Interest Rate.
"London Interbank Offered Rate" - shall have the meaning set
forth in the Credit Agreement.
"Note" - as used in all Articles of this Agreement, except
Article II, collectively, all notes evidencing any indebtedness created under
this Agreement.
"Plan Year" - Plan Year, as defined in Section 8.10 of this
Agreement.
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"Pledge Agreement" - Pledge Agreement dated October 27, 1994
executed and delivered by Borrower to Bank, pursuant to which Borrower pledged
to the Bank all shares of stock of the Guarantor owned or controlled directly or
indirectly by the Borrower and acquired with the proceeds of the Credit by
delivering the certificates of stock and endorsing such certificates or
appropriate stock powers to the Bank, as the same may be amended or supplemented
from time to time.
"Prime Rate" - the rate of interest publicly announced by the
Bank from time to time as its prime rate and is a base rate for calculating
interest on certain loans. The Prime Rate may or may not be the most favorable
rate charged by the Bank to its customers.
"Prime Rate Loan" - a portion of the Credit for which the
interest rate is calculated based on the Prime Rate.
"Subsidiary" - shall have the meaning set forth in the Credit
Agreement.
"Tangible Net Worth" - shall have the meaning set forth in the
Credit Agreement.
"Trust Agreement" - the Columbus XxXxxxxx Corporation
Leveraged Employee Stock Ownership Trust Agreement effective as of April 1, 1987
(formerly known as the Columbus XxXxxxxx Corporation Personal Retirement Account
Trust Agreement), by and between the Guarantor and the persons named as trustees
therein, as amended from time to time
"Trustees" - each or all of Xxxxxxx X. XxXxxxxxx, Xxxxx X.
Xxxxx and Xxxxxx X. Xxxxxxxxxx, Xx. in their capacity as trustees for the
Borrower.
1.2 ACCOUNTING TERMS. All accounting terms not otherwise
defined herein have the meaning assigned to them in accordance with generally
accepted accounting principles.
ARTICLE II. THE CREDIT
2.1 THE CREDIT. The Bank agreed to lend to the Borrower and
the Borrower agreed to borrow from the Bank the sum of TWO MILLION DOLLARS
($2,000,000.00) ("Credit").
2.2 THE NOTE. The Credit is evidenced by a term note made by
Borrower to Bank dated October 27, 1994 ("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.
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2.3 INTEREST.
(a) NOTICE. The Credit shall bear interest on the date hereof
at the Prime Rate unless the Borrower has given the Bank notice at least three
(3) Business Days prior to the date it desires all or any portion of the Credit
to be a LIBOR Loan. Subject to Section 2.3(b) hereof, Borrower may elect to
convert any portion of the Credit that is a Prime Rate Loan to a LIBOR Loan or
to continue any LIBOR Loan as a new LIBOR Loan by giving notice. All notices
given under this Section 2.3(a) shall be irrevocable and shall be given not
later than 11:00 a.m. on the day which is not less than the number of Business
Days specified above for such notice.
(b) CONVERSION AND RENEWALS. The Borrower may elect from
time to time to convert all or part of a Prime Rate Loan into a LIBOR Loan or a
LIBOR Loan into a Prime Rate Loan or to renew all or part of a LIBOR Loan by
giving Bank notice at least one (1) Business Day before conversion into a Prime
Rate Loan and at least three (3) Business Days before conversion into or renewal
of a LIBOR Loan specifying: (a) the renewal or conversion date; (b) the amount
of the Prime Rate Loan or LIBOR Loan to be converted or renewed; (c) in the case
of conversion, whether the conversion is into a Prime Rate Loan or a LIBOR Loan;
and (d) in the case of a renewal of, or a conversion into, a LIBOR Loan, the
duration of the Interest Period applicable thereto; provided that (i) the
minimum principal amount of each Prime Rate Loan outstanding after a renewal or
conversion shall be $250,000.00 and the minimum principal amount of each LIBOR
Loan after a renewal or conversion shall be $250,000; and (ii) a LIBOR Loan can
be converted only on the last day of the Interest Period for such LIBOR Loan.
All notices given under this Section 2.3(b) shall be irrevocable and shall be
given not later than 11:00 a.m. on the day which is not less than the number of
Business Days specified above for such notice. If the Borrower shall fail to
give Bank the notices specified above for the renewal or conversion of a LIBOR
Loan prior to the end of the Interest Period with respect thereto, such LIBOR
Loan shall by automatically converted into a Prime Rate Loan on the last day of
the Interest Period for such LIBOR Loan.
(c) PAYMENTS OF INTEREST. The Credit shall bear interest at
the rates of interest set forth in Section 2.06 of the Credit Agreement.
Interest on the Credit shall be paid in immediately avail-
able funds to the Bank at Xxx Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx as
follows:
(i) Except to the extent that the Credit is a LIBOR Loan,
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on the first day of each month commencing after the
date of this Agreement and at maturity of the Credit;
and
(ii) For each LIBOR Loan, on the last day of the Interest
Period with respect thereto and in the case of any
Interest Period greater than three months, at three
month intervals after the first day of such Interest
Period.
(d) DEFAULT RATE. Any principal amount not paid when due (at
maturity, by acceleration or otherwise) shall bear interest thereafter until
paid in full, payable on demand, at a rate per annum equal to the rate of
interest otherwise payable on such amount plus four percent (4%) until paid in
full.
2.4 PREPAYMENT.
(a) OPTIONAL PREPAYMENT - PRIME RATE LOANS. The Borrower may
prepay, without premium, all or part of the indebtedness consisting of Prime
Rate Loans, together with interest on the principal so prepaid to the date of
prepayment. Subject to Subsection 2.4 (c) below, any partial prepayment shall be
applied to payments of the Note in inverse order of maturity.
(b) OPTIONAL PREPAYMENT - LIBOR LOANS. The Borrower shall have
the right to prepay without premium all or any portion of the indebtedness
consisting of LIBOR Loans on the expiration day of the applicable Interest
Period. If any LIBOR Loan is prepaid at any other time the Borrower shall pay to
the Bank such amount or amounts as the Bank deems necessary to compensate it for
any loss or expense sustained or incurred by the Bank with respect to such
repayment or prepayment. Subject to subsection 2.4(c) below, any partial
prepayment shall be applied to payments of the Note in inverse order of
maturity.
(c) MANDATORY PREPAYMENT. In addition to the installments
otherwise specified in the Note, the Borrower shall prepay $100,000 of principal
of the Note in five (5) annual installments. The Borrower has prepaid one (1)
installment on April 1, 1995 in the amount of $8333.00 and one (1) installment
in the amount of $22,619.75 on or before April 1, 1996, and the Borrower shall
prepay three (3) installments in the amounts of $22,916.75 each, payable on or
before the first day of each April of each year beginning April 1, 1997
("Mandatory Prepayment") which Mandatory Prepayment shall be applied to
installments of principal of the Note in inverse order of maturity. Any
prepayment in any Plan Year exceeding the amount of the required Mandatory
Prepayment shall be applied to the Mandatory Prepayment due in the immediately
succeeding year or years, until the
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Borrower has prepaid the full $100,000 which must be paid pursuant to this
Section 2.4(c).
2.5 USE OF PROCEEDS. The Borrower covenants to the Bank that
the proceeds advanced under this Agreement have and will be used exclusively to
acquire employer securities within the meaning of Section 409(1) of the Internal
Revenue Code and Borrower directed the Bank to advance such proceeds directly to
the Guarantor for such purpose. The Guarantor covenants to the Bank that it has
used such proceeds, and the proceeds of the funds it received from the Borrower
which the Borrower received from its $4,000,000 loan from Fleet Bank, to reduce
the Guarantor's working capital lines, to pay for certain environmental
remediation work (estimated to cost approximately $2,766,000) and to fund the
stock redemption to the Estates of Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxx.
2.6 SPECIAL PROVISIONS GOVERNING LIBOR LOANS
The provisions set forth in the following sections
of the Credit Agreement: Section 2.10 (Illegality), Section 2.11 (Disaster),
Section 2.12 (Increased Cost), and Section 2.13 (Funding Loss Indemnification)
are incorporated herein by reference as if fully set forth. The provisions as
incorporated herein shall survive the termination of the Credit Agreement.
2.7 TAXES. If any taxes (other than taxes with respect to the
income of the Bank), or duties of any kind shall be payable, or ruled to be
payable, by or to any taxing authority of or in the United States, or any
foreign country, or any political subdivision of any thereof, in respect of any
of the transactions contemplated by this Agreement (including, but not limited
to, execution, delivery, performance, enforcement, or payment of principal or
interest of or under the Note or this Agreement, or the making of a LIBOR Loan),
by reason of any now existing or hereafter enacted statute, rule, regulation or
other determination (excluding any taxes imposed on or measured by the net
income of the Bank), the Company will:
(1) pay on written request therefor all such taxes or
duties, including interest and penalty, if any,
(2) promptly furnish the Bank with evidence of any such
payment, and
(3) indemnify and hold the Bank and any holder or holders of
the Note harmless and indemnified against any liability or liabilities with
respect to or in connection with any such taxes or the payment thereof or
resulting from any delay or omission to pay such taxes.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and
warranties, which shall be deemed to be continuing representations and
warranties so long as any indebtedness of the Borrower to the Bank, including
indebtedness for fees and expenses, remains unpaid:
3.1 AUTHORITY. The Borrower is a trust established under the
laws of New York and has all necessary power and authority to enter into this
Agreement and to execute, deliver and perform this Agreement, the Note, the
Pledge Agreement and any other document executed in connection with this
Agreement, all of which have been duly authorized by the Trust Agreement.
3.2 VALID AND BINDING OBLIGATION. This Agreement, the Pledge
Agreement and any other document executed in connection herewith, and the Note
constitute the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms.
3.3 NO PENDING LITIGATION. There are not any actions, suits,
proceedings (whether or not purportedly on behalf of the Borrower) or
investigations pending or, to the knowledge of the Borrower, threatened against
the Borrower or any basis therefor, which, if adversely determined, would, in
any case or in the aggregate, materially adversely affect the financial
condition of the Borrower or which question the validity of this Agreement, the
Note, the Guaranty, the Pledge Agreement or other documents required by this
Agreement, or any action taken or to be taken pursuant to any of the foregoing.
3.4 NO CONSENT OR FILING. Other than the filings and
approvals contemplated by Section 3.5, no consent, license, approval or
authorization of, or registration, declaration or filing with, any court,
governmental body or authority or other person or entity is required in
connection with the valid execution, delivery or performance of this Agreement,
the Note, the Pledge Agreement or other documents required by this Agreement or
in connection with any of the transactions contemplated thereby.
3.5 COMPLIANCE WITH LAWS AND REGULATIONS. All necessary
action has been taken to adopt the ESOP and appoint the Trustees, and the Board
of Directors of the Guarantor has directed the officers of the Guarantor to have
the ESOP approved by the United States Department of the Treasury as qualified
under Section 401(a) and 4975(e)(7) of the Internal Revenue Code as amended.
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3.6 GUARANTOR'S OBLIGATIONS. The Guarantor has full power
and authority to guarantee, to execute and deliver this Agreement, the Guaranty
and to take all other action called for by the Guaranty. The Guaranty and this
Agreement constitute the legal, valid and binding obligations of the Guarantor
enforceable in accordance with the terms contained therein, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
3.7 FEDERAL REGULATIONS. The Borrower is not engaged
principally, or as one of its important activities, in the business of extending
or arranging for the extension of credit for the purpose of purchasing or
carrying "margin security" or "margin stock" (as defined in Regulations G and U
issued by the Board of Governors of the Federal Reserve System). Likewise, the
Borrower does not own or intend to carry or purchase any such "margin security"
or "margin stock," and the Borrower will not use the proceeds advanced pursuant
to this Agreement to purchase or carry (or refinance any borrowing the proceeds
of which were used to purchase or carry) any such "margin security" or "margin
stock."
3.8 CREDIT AGREEMENT. The representations and warranties
made by the Guarantor, set forth in Article VI of the Credit Agreement are true
and corrent, and are incorporated herein by reference as if fully set forth. The
representations and warranties as incorporated herein shall survive the
termination of the Credit Agreement.
ARTICLE IV. AFFIRMATIVE COVENANTS
During the term of this Agreement, and so long thereafter as
any indebtedness of the Borrower to the Bank shall remain unpaid, including any
indebtedness for fees and expenses, the Borrower will:
4.1 PAYMENTS. Duly and punctually pay the principal of and
interest on all indebtedness incurred by it pursuant to this Agreement in the
manner set forth in this Agreement.
4.2 FUTURE FINANCIAL STATEMENTS. Furnish to the Bank the
financial statements and other certificates and information described in Section
7.02 of the Credit Agreement.
4.3 BOOKS AND RECORDS. Keep proper books and records in
accordance with generally accepted accounting principles consistently applied
and notify the Bank promptly in writing of any proposed change in the location
at which such books and records are maintained.
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4.4 COMPLIANCE WITH LAW. Comply in all material respects with
all applicable laws and governmental rules and regulations.
4.5 USE OF PROCEEDS. Use the proceeds of the loan solely and
exclusively for the purpose of acquiring employer securities within the meaning
of Internal Revenue Code Section 409(1).
4.6 TAXES. Pay all taxes, assessments and other charges of
every nature which may be imposed, levied or assessed against the Borrower or
the ESOP (and provide to the Bank receipted bills therefor if requested by the
Bank), prior to the date of attachment of any penalties or liens with respect
thereto (other than liens attaching prior to payment becoming due if payment is
made when due); provided, however, this Agreement shall not be deemed to require
such payment so long as the validity of such tax, assessment or other charge is
being contested in good faith by appropriate proceedings diligently conducted
and so long as the enforcement of any such lien is appropriately stayed.
4.7 ESOP. Promptly file, or cause the Guarantor to file, with
the appropriate District Director or other official of the Internal Revenue
Service for a determination letter that the ESOP is a qualified plan under
Internal Revenue Code Section 401(a) and take all necessary and appropriate
action to maintain the ESOP in full force and effect and to keep it fully
qualified under the Internal Revenue Code and regulations thereunder, from time
to time in effect.
4.8 REPORTS AND NOTICES. Furnish promptly to the Bank such
information as the Bank may reasonably require concerning the Borrower or the
ESOP and assets held by the ESOP or the Borrower and such other information as
the Bank may reasonably require; to notify the Bank promptly of any litigation
instituted or threatened against Borrower or the ESOP, any deficiencies asserted
or liens filed by the Internal Revenue Service against the Borrower, the ESOP or
the Trustee, any audits of any Federal or State tax return of Borrower or the
ESOP, and the results of any such audit; and any other matters which could
reasonably be expected to adversely affect the Borrower's ability to perform its
obligations under this Agreement.
4.9 INFORMATION. Provide, or cause the Trustees to provide,
to the Bank copies of all information incident to the Borrower's ownership of
shares of the Guarantor.
4.10 AMENDMENTS. Refrain, and cause the Guarantor to refrain,
from amending or modifying, or agreeing to the amendment or modification of, the
ESOP, or other matters relating to the ESOP or its operation if the effect of
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any such amendment or modification, or of all such amendments and modifications
in the aggregate, would be to cause the ESOP to lose its qualification under
Internal Revenue Code Section 401(a) or the Trust's qualification under Section
501(a), or would jeopardize the tax effects of the ESOP or the deductibility of
contributions by the Guarantor to the ESOP, or would result in any violation of
the Employee Retirement Income Security Act of 1974, as amended.
4.11 NOTICE. Notify the Bank promptly in writing of the
Guarantor's failure to make any contribution to the ESOP or to the Borrower that
is required by the ESOP.
4.12 OTHER ACTS. Execute and deliver, or cause to be executed
and delivered, to the Bank all further documents and perform all other acts and
things which the Bank deems necessary or appropriate to protect or perfect any
security interests in any property directly or indirectly securing payment of
any indebtedness of the Borrower to the Bank.
4.13 CREDIT AGREEMENT AFFIRMATIVE COVENANTS. Guarantor shall
comply with all affirmative covenants set forth in Article VII of the Credit
Agreement which covenants as amended from time to time are incorporated herein
by reference as if fully set forth. The foregoing covenants as incorporated
herein shall survive the termination of the Credit Agreement.
ARTICLE V. NEGATIVE COVENANTS
During the term of this Agreement and so long thereafter as
any of the indebtedness of the Borrower to the Bank, including any indebtedness
for fees and expenses, shall remain unpaid, the Borrower, without the prior
written consent of the Bank, will not:
5.1 BORROWED MONEY. Create, incur, assume or suffer to exist
any liability for borrowed money except to the Bank, except for an existing loan
from Fleet Bank in the original amount of $4,000,000.00 which loan was used only
to purchase shares of stock of the Guarantor.
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 Bank of New York to secure payment of the loans described in Section 5.1
above.
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5.3 MAINTAIN EXISTENCE. Take any action that would cause the
Borrower to not maintain itself as it is presently constituted or take any
action that would cause the ESOP and the Borrower not to be a qualified employee
stock ownership plan and trust under the Internal Revenue Code or the
regulations promulgated thereunder.
5.4 CREDIT AGREEMENT NEGATIVE COVENANTS. Guarantor shall not
breach the negative covenants set forth in Article VIII of the Credit Agreement
which covenants as amended from time to time are incorporated herein by
reference as if fully set forth. The foregoing covenants as incorporated herein
shall survive the termination of the Credit Agreement.
ARTICLE VI. DEFAULT
6.1 EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an event of default (individually, Event
of Default, or, collectively, Events of Default):
(a) NONPAYMENT. Nonpayment when due whether by acceleration or
otherwise of principal of or interest on the Note or of any fee or premium
provided for hereunder.
(b) NEGATIVE COVENANTS. Default in the observance of any
of the covenants or agreements of the Borrower contained in Article V of this
Agreement.
(c) OTHER COVENANTS. Default in the observance of any of the
covenants or agreements of the Borrower contained in this Agreement, other than
in Section 4.1 or Article V, or in any other agreement with the Bank, which is
not remedied within thirty (30) days after notice thereof by the Bank to the
Borrower.
(d) REPRESENTATIONS. If any certificate, statement,
representation, warranty or financial statement furnished by or on behalf of the
Borrower pursuant to or in connection with this Agreement (including, without
limitation, representations and warranties contained herein) or as an inducement
to the Bank to enter into this Agreement or any other lending agreement with the
Borrower shall prove to have been false in any material respect at the time as
of which the facts therein set forth were certified, or to have omitted any
substantial contingent or unliquidated liability or claim against the Borrower,
or if on the date of the execution of this Agreement there shall have been any
materially adverse change in any of the facts disclosed by any such statement or
certificate, which change shall not have been disclosed by the Borrower to the
Bank at or prior to the time of such execution.
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(e) OTHER INDEBTEDNESS AND AGREEMENTS. Nonpayment by the
Borrower of any indebtedness (other than as evidenced by the Note) owing by the
Borrower when due (or, if permitted by the terms of the applicable document,
within any applicable grace period), whether such indebtedness shall become due
by scheduled maturity, by required prepayment, by acceleration, by demand or
otherwise, or failure to perform any term, covenant or agreement on its part to
be performed under any agreement or instrument (other than this Agreement)
evidencing or securing or relating to any indebtedness owing by the Borrower
when required to be performed if the effect of such failure causes the holder to
accelerate the maturity of such indebtedness.
(f) JUDGMENTS. If any judgment or judgments in an amount
exceeding $1,000,000 in the singular or in the aggregate (other than any
judgment for which it is fully insured) against the Borrower remains unpaid,
unstayed on appeal, undischarged, unbonded or undismissed for a period of 45
days.
(g) TERMINATION OF ESOP. The termination for any cause
whatsoever of the ESOP without the prior written consent of the Bank.
(h) GUARANTOR'S DEFAULT. The occurrence of any Event of
Default applicable to Guarantor contained in this Article VI, or the breach by
Guarantor of any term, condition or covenant contained in the Guaranty.
(i) CREDIT AGREEMENT. The occurrence of any Event of Default
set forth in the Credit Agreement, whether or not the Credit Agreement remains
in effect.
6.2 EFFECTS OF AN EVENT OF DEFAULT.
(a) Upon the happening of one or more Events of Default
(except a default under either Section 6.1(d) or 6.1(e) hereof), the Bank may
declare any obligations it may have hereunder to be canceled and the principal
of the Note then outstanding to be immediately due and payable, together with
all interest thereon and fees and expenses accruing under this Agreement. Upon
such declaration, any obligations the Bank may have hereunder shall be
immediately canceled and the Note then outstanding shall become immediately due
and payable without presentation, demand or further notice of any kind to the
Borrower.
(b) Upon the happening of one or more Events of Default under
Section 6.1(d) or 6.1(e) hereof, the Bank's obligations hereunder shall be
canceled immediately, automatically and without notice, and the Note then
outstanding
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shall become immediately due and payable without presentation, demand or notice
of any kind to the Borrower.
ARTICLE VII. EXPENSES
The Guarantor shall reimburse the Bank promptly for all of its
expenses including, without limitation, reasonable counsel fees, filing fees and
recording fees incurred in connection with this Agreement and with any
indebtedness subject hereto, for any taxes which the Bank may be required to pay
in connection with the execution and delivery of this Agreement and the Note and
for any expenses, including actual counsel fees and expenses, incident to the
lawful enforcement of any provision of this Agreement, the Note, the Guaranty or
the Pledge Agreement.
ARTICLE VIII. MISCELLANEOUS
8.1 AMENDMENTS AND WAIVERS. This Agreement represents the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof; supersedes all prior negotiations between the parties
with respect to the subject matter hereof (and specifically supercedes the
Original Agreement); no modification, rescission, waiver, release or amendment
of any provision of this Agreement shall be made except by a written agreement
subscribed by the Trustee and duly authorized officers of the Bank and the
Guarantor.
8.2 DELAYS AND OMISSIONS. No course of dealing and no delay or
omission by the Bank in exercising any right or remedy hereunder or with respect
to any indebtedness of the Borrower to the Bank shall operate as a waiver
thereof or of any other right or remedy, and no single or partial exercise
thereof shall preclude any other or further exercise thereof or the exercise of
any other right or remedy. The Bank may remedy any default by the Borrower
hereunder or with respect to any other person, firm or corporation in any
reasonable manner without waiving the default remedied and without waiving any
other prior or subsequent default by the Borrower and shall be reimbursed for
its expenses in so remedying such default. All rights and remedies of the Bank
hereunder are cumulative.
8.3 SUCCESSORS AND ASSIGNS. The Borrower, the Guarantor and
the Bank as used herein shall include the legal representatives, successors and
assigns of those parties.
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8.4 NOTICES. Any notice or demand to be given hereunder shall
be duly given if delivered, sent by facsimile transmission or mailed as follows:
To the Borrower - Columbus XxXxxxxx Corporation
Employee Stock Ownership Trust
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxx,
Trustee
To the Bank - Marine Midland Bank
Xxx Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Regional Commercial
Banking Department
With a Copy to - Phillips, Lytle, Xxxxxxxxx,
Xxxxxx & Xxxxx
0000 Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
To the Guarantor - Columbus XxXxxxxx Corporation
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
Executive Vice President
and shall be deemed effective if delivered upon delivery and if mailed upon
deposit in an official depository maintained by the United States Post Office
for the collection of mail.
8.5 GOVERNING LAW. This Agreement, the transaction described
herein and the obligations of the Bank, the Borrower and the Guarantor shall be
construed under, and governed by, the internal laws of the State of New York,
without regard to principles of conflicts of laws.
8.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the Bank, the Borrower and the Guarantor on separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same Agreement.
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8.7 TITLES. Titles to the sections of this Agreement are
solely for the convenience of the Bank, the Borrower and the Guarantor and are
not an aid in the interpretation of this Agreement or any part thereof.
8.8 INCONSISTENT PROVISIONS. The terms of this Agreement and
any related agreements, instruments or other documents shall be cumulative
except to the extent that they are specifically inconsistent with each other, in
which case the terms of this Agreement shall prevail.
8.9 COURSE OF DEALING. Without limitation of the foregoing,
the Bank shall have the right at all times to enforce the provisions of this
Agreement and all other documents executed in connection herewith in strict
accordance with their terms, notwithstanding any course of dealing or
performance by the Bank in refraining from so doing at any time and
notwithstanding any custom in the banking trade. Any delay or failure by the
Bank at any time or times in enforcing its rights under such provisions in
strict accordance with their terms shall not be construed as having created a
course of dealing or performance modifying or waiving the specific provisions of
this Agreement.
8.10 COLLATERAL RELEASE. The Bank shall release to the
Borrower all Collateral remaining in its possession upon payment in full of all
indebtedness of the Borrower to the Bank. Prior to such payment in full, the
Bank shall release Collateral to the Borrower annually, the number of shares to
be released each Plan Year to be equal to the number of encumbered shares held
immediately before the release multiplied by a fraction, the numerator of which
is the amount of principal and interest paid on the Note during the Plan Year
and the denominator of which is the sum of the numerator plus the principal and
interest to be paid on the Note for all future Plan Years. For this purpose, the
interest to be paid in future years is to be computed by using the interest
rates in effect as of the last day of the Plan Year for which the calculation is
made. Each annual release of Collateral shall be calculated as of March 31 and
shall occur within ninety (90) days of the end of the Plan Year. In the event of
any change in the shares which occurs between March 31 and the date of the
release, by reason of a dividend payable in shares, recapitalization, merger,
consolidation, split-up, combination or exchange of shares, or the like,
appropriate adjustments shall be made to the number of shares to be released.
The "Plan Year" means the twelve-consecutive month period ending March 31.
8.11 THE TRUSTEE. The Bank acknowledges that the Trustee
is acting solely as Trustee of the Borrower and not in its individual capacity
in executing, delivering, and performing under this Agreement, the Note and the
Collateral Documents, and the Bank shall look solely to the Collateral of the
- 16 -
Borrower and not to the individual assets of the Trustee for payment or
satisfaction of any and all obligations of the Borrower hereunder.
8.12 NON-RECOURSE. Notwithstanding any other provision of this
Agreement or the Note, no recourse shall be had against the Borrower for the
payment of the principal of or interest on the Note other than to the collateral
now or hereafter pledged pursuant to the Pledge Agreement.
8.13 JURY TRIAL WAIVER. THE BORROWER, THE BANK AND THE
GUARANTOR WAIVE ANY RIGHT TO TRIAL BY JURY WHICH THEY MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR EQUITY, IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS RELATED THERETO.
8.14 CONSENT TO JURISDICTION. THE BORROWER, THE BANK AND THE
GUARANTOR AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS
AGREEMENT MAY BE COMMENCED IN THE SUPREME COURT OF NEW YORK IN ERIE COUNTY, OR
IN XXX XXXXXXXX XXXXX XX XXX XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized officers, all as of the 5th day
of August, 1996.
MARINE MIDLAND BANK
By /s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
Vice President
COLUMBUS XXXXXXXX COLUMBUS XXXXXXXX CORPORATION
CORPORATION EMPLOYEE STOCK OWNERSHIP TRUST
By: /s/ Xxxxxx X. Xxxxxxxxxx By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------ --------------------------
Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxx, Trustee
Executive Vice President
By /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx, Trustee
By /s/ Xxxxxxx X. XxXxxxxxx
--------------------------
Xxxxxxx X. XxXxxxxxx, Trustee
