FIRST AMENDMENT
TO AMENDED AND RESTATED
LOAN AGREEMENT AMONG
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST,
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION,
AND MARINE MIDLAND BANK
This First Amendment to Amended and Restated Loan Agreement
("Amendment") is made as of the 16th day of October, 1996 by and among Columbus
▇▇▇▇▇▇▇▇ Corporation Employee Stock Ownership Trust, a trust which was created
under the laws of the State of New York ("Borrower"), Columbus ▇▇▇▇▇▇▇▇
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, Bank, Guarantor, Fleet Bank, and Fleet Bank, as
Administrative Agent, have previously entered into a Credit Agreement dated as
of August 5, 1996 ("Prior Credit Agreement"); and
WHEREAS, the Original Loan Agreement was amended and restated
on August 5, 1996 ("Restated Agreement") to incorporate certain covenants and
pricing provisions of the Prior Credit Agreement; and
WHEREAS, all obligations of the parties under and arising out
of the Prior Credit Agreement have been or will be paid in full on or prior to
the date hereof, and the Prior Credit Agreement has been or will be terminated,
and of no further force or effect, on or prior to the date hereof; and
WHEREAS, Guarantor, certain banks, financial institutions and
other institutional lenders party thereto, and Fleet Bank, as Administrative
Agent for the Lender Parties ("Administrative Agent") have entered or will enter
into a Credit Agreement, dated of even date herewith ("New Credit Agreement");
and
WHEREAS, Bank, Guarantor and Borrower wish to amend the
Restated Agreement to delete certain covenants and provisions of the Prior
Credit Agreement which were incorporated into the Restated Agreement,
incorporate certain covenants and provisions of the New Credit Agreement into
the Restated Agreement and make certain other changes, as and to the extent set
forth in this
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Amendment and subject to the terms and conditions 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 not being
replaced and remains an obligation of the Borrower.
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. The definitions of "Credit Agreement", "Leverage Ratio",
"LIBOR Interest Rate", "London Interbank Offered Rate", "Prime Rate" and
"Tangible Net Worth" set forth in Section 1.1 of the Restated Agreement are
hereby deleted in their entirety.
2. The Restated Agreement is hereby amended to add the
following definitions to Section 1.1 in the applicable alphabetical order:
"Credit Agreement" - the Credit Agreement among the
Guarantor, the banks, financial institutions and other institutional lenders
party thereto, and Fleet Bank, as Administrative Agent for the Lender Parties,
dated as of even date herewith as amended, restated or otherwise modified from
time to time.
"LIBOR Interest Rate" - shall have the meaning of
"Eurodollar Rate" as set forth in the Credit Agreement.
"Prime Rate" - shall have the meaning set forth in
the Credit Agreement.
3. The first sentence of Section 2.3(c) of the Restated
Agreement is hereby deleted and replaced in its entirety by the following:
PAYMENTS OF INTEREST. The Credit shall bear interest
at the rates of interest set forth in Section 2.07 of the Credit Agreement. For
purposes of this subsection 2.3(c) only, the term "Advances" as defined in the
Credit Agreement shall include the outstanding and unpaid principal amount of
the Credit owed to the Bank hereunder, the term "Prime Rate Advance" shall
include Prime Rate Loans, the term "Eurodollar Rate Advances" shall include
LIBOR Loans, and other defined terms used in Section 2.07 of the Credit
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Agreement shall have the meanings ascribed thereto in the Credit Agreement.
4. The first sentence of Section 2.6 of the Restated Agreement
is hereby deleted and replaced in its entirety by the following:
2.6 SPECIAL PROVISIONS GOVERNING LIBOR LOANS
The provisions set forth in the following sections of
the Credit Agreement: Section 2.02(d), Section 2.10 (Increased
Costs, Etc.), and subsection 8.04(c) (Costs and Expenses) are
incorporated herein by reference as if fully set forth,
mutatis mutandis.
5. The first sentence of Section 3.8 of the Restated Agreement
is hereby deleted and replaced in its entirety by the following:
3.8 CREDIT AGREEMENT. The representations and
warranties made by the Guarantor, set forth in Article IV of
the Credit Agreement are true and correct, and are
incorporated herein by reference as if fully set forth.
6. Section 4.2 of the Restated Agreement is hereby deleted and
replaced in its entirety by the following:
4.2 FUTURE FINANCIAL STATEMENTS. Furnish to the Bank
the financial statements and other certificates and
information described in Section 5.03 of the Credit Agreement,
at the times specified in such Section 5.03.
7. Section 4.13 of the Restated Agreement is hereby deleted
and replaced in its entirety by the following:
4.13 CREDIT AGREEMENT AFFIRMATIVE COVENANTS.
Guarantor shall comply with all affirmative and financial
covenants and reporting requirements set forth in Sections
5.01, 5.03 and 5.04 of the Credit Agreement which covenants
and requirements as amended from time to time are incorporated
herein by reference as if fully set forth. The foregoing
covenants and requirements as incorporated herein shall
survive the termination of the Credit Agreement.
9. The first sentence of Section 5.4 of the Restated Agreement
is hereby deleted and replaced in its entirety by the following:
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5.4 CREDIT AGREEMENT NEGATIVE COVENANTS. Guarantor
shall not breach the negative covenants set forth in Section
5.02 of the Credit Agreement which covenants as amended from
time to time are incorporated herein by reference as if fully
set forth.
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 confirmsand agrees that,
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notwithstanding the effectiveness of the Amendment, the obligations of the
Guarantor under the Guaranty shall not be impaired or affected and the Guaranty
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. 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.
c. 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 repre-
sentations 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 Amend-
ment, 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 or condition of the Restated Agreement or any other
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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 First Amendment to Amended and Restated Loan Agreement on the date
first written above.
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION
STOCK OWNERSHIP TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as
Trustee under the
Columbus ▇▇▇▇▇▇▇▇
Corporation Employee
Stock Ownership Trust
Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, as Trustee
under the Columbus ▇▇▇▇▇▇▇▇
Corporation Employee Stock
Ownership Trust Agreement
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
as Trustee under the Columbus
▇▇▇▇▇▇▇▇ Corporation Employee
Stock Ownership Trust
Agreement
COLUMBUS ▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Executive Vice President
MARINE MIDLAND BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President