THIRD AMENDMENT TO AMENDED AND RESTATED
TERM LOAN AGREEMENT AMONG
FLEET NATIONAL BANK
(AS SUCCESSOR BY MERGER TO FLEET BANK),
COLUMBUS XXXXXXXX CORPORATION, AS GUARANTOR, AND
XXXXX X. XXXXXX, XXXXXXX X. XXXXXX AND XXXXXX X. XXXXXXXXXX,
AS TRUSTEES UNDER THE COLUMBUS XXXXXXXX CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST AGREEMENT
This Third Amendment to Amended and Restated Term Loan
Agreement, dated as of November __, 1998 (this "Third Amendment"), is entered
into by and among FLEET NATIONAL BANK (AS SUCCESSOR BY MERGER TO FLEET BANK), a
bank having its principal office at 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000
("Bank"), COLUMBUS XXXXXXXX CORPORATION, a New York corporation having its
principal office at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Guarantor"),
and Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxxx, as Trustees
under the Columbus XxXxxxxx Corporation Employee Stock Ownership Trust Agreement
(the "Trust Agreement"), effective on April 1, 1987 and amended as of November
1, 1988 (collectively, "Trustees").
W I T N E S S E T H:
WHEREAS:
A. Bank, Guarantor and Trustees are parties to that certain
Amended and Restated Term Loan Agreement dated August 5, 1996, as amended by the
First Amendment thereto, dated as of October 16, 1996, and the Second Amendment
thereto, dated as of March 31, 1998 (as so amended and as hereafter amended,
restated or otherwise modified, the "Restated Agreement");
B. Bank, Guarantor and Trustees wish to amend the Restated
Agreement to extend the maturity of the ESOP Loan and make certain other
changes, as and to the extent set forth in this Third Amendment and subject to
the terms and conditions stated herein; it being understood that no additional
money is being advanced in connection with this Third Amendment and that the
note which evidences the ESOP Loan is being replaced by the ESOP Note (as
hereinafter defined).
NOW THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Except to the extent otherwise specified
herein, capitalized terms used in this Third Amendment shall have the same
meanings ascribed to them in the Restated Agreement.
2. AMENDMENTS. This Third Amendment shall be deemed to be an
amendment to the Restated Agreement and shall not be construed in any way as a
replacement or substitution therefor. All of the terms and conditions of, and
terms defined in, this Third Amendment are hereby incorporated by reference into
the Restated Agreement as if such terms and provisions were set forth in full
therein.
2.1 Section 1.1 of the Restated Agreement is hereby amended by
deleting the existing definition of "ESOP Note" in its entirety and replacing it
with the following, in the appropriate alphabetical order:
"`ESOP NOTE' means the Replacement ESOP Term Note, dated of
even date herewith, by Trustees to Bank (a copy of which is attached to this
Third Amendment as Exhibit A) and all replacements, substitutions,
modifications, extensions, renewals, consolidations and refinancings thereof.";
2.2 Section 1.1 of the Restated Agreement is further amended
by deleting from the definition of the term "Trustees" the words "Xxxx X.
Xxxxxxx,";
2.3 Section 5.1 of the Restated Agreement is hereby amended by
deleting the text of existing Section 5.1 in its entirety and replacing it with
the following:
"ENCUMBRANCES. Except for (i) the pledge of shares in favor of
Bank pursuant to the Stock Pledge Security Agreement, (ii) the pledge of shares
in favor of Marine pursuant to that certain pledge agreement dated October 27,
1994, executed and delivered by Guarantor to Marine, as amended through the date
hereof and (iii) the pledge of shares in favor of Guarantor to secure loans made
by Guarantor to the Trustees for the purpose of enabling the Trustees, on behalf
of the Plan, to purchase such pledged shares (to the extent and only to the
extent that such loans by Guarantor to the Trustees, on behalf of the Plan, and
such pledge of shares are permitted under Section 5.02(f) and Section 5.02(r) of
the Credit Agreement), the Trustees shall not mortgage, pledge or otherwise
encumber or suffer to be encumbered any of their assets."
3. REPRESENTATIONS AND WARRANTIES OF TRUSTEES AND GUARANTOR.
3.1 Trustees and Guarantor have full power, authority and
legal right to enter into this Third Amendment, and to take all action required
of them under this Third Amendment. Trustees hereby represent and warrant that
the execution, delivery and performance by Trustees of this Third Amendment has
been duly authorized by all necessary action, if any, and that this Third
Amendment is a legal, valid and binding obligation of Trustees enforceable
against Trustees 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.
3.2 Trustees and Guarantor each hereby represent and warrant
that the execution, delivery and performance of this Third Amendment by Trustees
and 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 Trustees, Guarantor, any property
subject to the Trust Agreement or Plan, or any property of Guarantor.
3.3 All of the representations and warranties contained in the
Restated Agreement, including, without limitation, those contained in Section 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 Third
Amendment or any of the other agreements and documents contemplated hereby. In
addition, Trustees hereby represent, warrant and affirm that the Financing
Documents and each of the other agreements and documents executed in connection
with or relating to the Restated Agreement remain in full force and effect.
4. CONDITIONS PRECEDENT TO AMENDMENTS. The effectiveness of
this Third Amendment shall be subject to the fulfillment (to the satisfaction of
Bank) of the following conditions precedent:
4.1 AMENDMENT DOCUMENTATION. Trustees 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. Trustees, Bank and Guarantor shall have
executed and delivered this Third Amendment.
(b) ESOP NOTE. Bank shall have received the ESOP Note, duly
executed and delivered by Trustees and payable to the order of Bank.
(c) OTHER. Such other documents and such other actions as Bank
may reasonably request.
4.2 NO DEFAULT. As of the closing date of this Third
Amendment, no Event of Default shall have occurred or be continuing under the
Restated Agreement.
4.3 REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Section 3 hereof shall be true and correct on the
closing date of this Third Amendment.
4.4 LEGAL MATTERS. All legal matters incident hereto shall be
satisfactory to counsel to Bank.
5. MISCELLANEOUS
5.1 Except as specifically amended by this Third Amendment,
the Restated Agreement and each other agreement and document executed in
connection therewith shall remain in full force and effect and is hereby
ratified and confirmed.
5.2 The execution, delivery and effect of this Third Amendment
shall be limited precisely as written and shall not be deemed to (i) be a
consent to any waiver of any term or condition or to any amendment or
modification of any term or condition of the Restated Agreement or any other
agreement or document executed in connection therewith, except, upon the
effectiveness of this Third 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
Third 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.
5.3 COUNTERPARTS. This Third 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.
5.4 COSTS AND EXPENSES. Guarantor and Trustees jointly and
severally shall reimburse Bank promptly for all reasonable costs and expenses,
including reasonable counsel fees, incurred by Bank in connection with this
Third 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 Third Amendment, the ESOP Note, any other Financing Documents and, in the
case of Guarantor, any other Obligations.
5.5 GOVERNING LAW. THIS THIRD 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.
5.6 HEADINGS. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Third Amendment for any other purpose.
IN WITNESS WHEREOF, this Third Amendment to Amended and
Restated Term Loan Agreement has been duly executed as of the date first written
above.
FLEET NATIONAL BANK (AS
SUCCESSOR BY MERGER TO FLEET
BANK)
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Title: Vice President
------------------------
COLUMBUS XXXXXXXX CORPORATION
By: /s/ X. X. Xxxxxxxxxx
---------------------------
Title: Executive Vice President
------------------------
/s/ Xxxxx X. Xxxxxx
--------------------------
XXXXX X. XXXXXX, as
Trustee under the Columbus
XxXxxxxx Corporation Employee
Stock Ownership Trust Agreement
/s/ Xxxxxxx X. Xxxxxx
--------------------------
XXXXXXX X. XXXXXX, as
Trustee under the Columbus
XxXxxxxx Corporation Employee
Stock Ownership Trust Agreement
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------
XXXXXX X. XXXXXXXXXX, as
Trustee under the Columbus
XxXxxxxx Corporation Employee
Stock Ownership Trust Agreement
