AMENDMENTNo. 1 TO LOAN AND SECURITY AGREEMENT

1.  

Clause (x) of subsection 8.2.2 of the Loan Agreement is hereby deleted and replaced in its entirety as follows:

2.  

This Amendment shall be effective as of the date hereof (the “Effective Date”), but only upon the satisfaction of the following conditions precedent:

(a)  

Agent shall have received a duly executed copy of this Amendment from each of the Borrowers and the Majority Lenders.

(b)  

The representations and warranties of the Borrowers and Guarantors set forth in each of the Loan Documents shall be true and correct in all material respects on and as of the Effective Date with the same effect as though made on and as of such date (except to the extent such representations and warranties by their terms expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct, in all material respects, as of such earlier date).

(c)  

No Default or Event of Default shall have occurred and be continuing as of the Effective Date.

(d)  

The Borrowers shall have paid the costs, fees and expenses referred to in Section 3 hereof.

3.  

The Borrowers jointly and severally agree to reimburse the Agent upon demand for all reasonable and documented costs, fees and expenses (including the reasonable fees and expenses of counsel to the Agent) incurred in connection with the preparation, execution and delivery of this Amendment.

4.  

The amendments set forth herein are effective solely for the purposes set forth herein and shall be limited precisely as written, and shall not be deemed to (i) be a consent to, or acknowledgment of, any amendment, waiver or modification of any other term or condition of the Loan Agreement or of any other instrument or agreement referred to herein or therein or (ii) prejudice any right or remedy which the Agent or any other party may now have or may have in the future under or in connection with the Loan Agreement as amended hereby or any other instrument or agreement referred to therein.  This Amendment is a Loan Document executed pursuant to the Loan Agreement and shall be construed in connection with and as part of the Loan Agreement, and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Agreement, each other Loan Document and each other instrument or agreement referred to therein, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.  Neither this Amendment nor the replacement of the terms of the Loan Agreement by the terms of this Amendment shall extinguish the obligations for the payment of money outstanding under the Loan Agreement or discharge or release the Lien or priority of any security agreement, pledge agreement, or other security therefor.  Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Loan Agreement or instruments securing the same, which shall remain in full force and effect, except as modified hereby.

5.  

To induce Agent and each Lender to enter into this Amendment, Borrowers represent and warrant to Agent and each Lender, on a joint and several basis, that: (a) the execution, delivery and performance by each Borrower of this Amendment have been duly authorized by all necessary corporate or other relevant action and do not and will not:  (i) contravene, violate or result in a breach of or default under (A) any Borrower’s charter, articles or certificate of incorporation, certificate of formation, bylaws, limited liability company or partnership agreement, or other organizational documents (as the case may be), (B) any provision of any law, rule, regulation, order of any Governmental Authority, writ, judgment, injunction, decree, determination or award in effect having applicability to such Borrower, the violation of which would reasonably be expected to have a Material Adverse Effect, or (C) any indenture or loan or credit agreement or any other agreement, lease or instrument binding on a Loan Party or its Properties, the breach of or default under which would reasonably be expected to have a Material Adverse Effect; or (ii) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the Collateral now owned or hereafter acquired by such Loan Party; and (b) this Amendment and the Loan Agreement as amended hereby are legal, valid and binding obligations of each Borrower, enforceable against it in accordance with its respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, or fraudulent transfer laws, or other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

6.  

This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.

7.  

Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.

8.  

THIS AMENDMENT HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED IN AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK, NY.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

By:

CENTURY KENTUCKY INC.

Its:

General Partner

By:

/s/ Michelle Lair                                                 

Name:

Michelle Lair

Title:

VP & Treasurer

By:

SKYLINER LLC

Its:

General Partner

By:

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

 

By:

 

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

 

By:

 

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

 

By:

 

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

 

By:

 

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

By:

METALSCO LLC

Its:

General Partner

By:

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

By:

SKYLINER LLC

Its:

General Partner

By:

/s/ Michelle Lair                                                  

Name:

Michelle Lair

Title:

VP & Treasurer

  as Agent and as a Lender

 

By:

 

/s/ Robert T. Lund                                                  

Name:

Robert T. Lund

Title:

Senior Vice President

 

By:

 

/s/ Alain Daoust                                                  

Name:

Alain Daoust

Title:

Director

 

By:

 

/s/ Denise L. Alvarez

Name:

Denise L. Alvarez

Title:

Associate

  as Agent and as a Lender

 

By:

 

/s/ Raymond G. Dunning                                                      

Name:

Raymond G. Dunning

Title:

Vice President

 

By:

 

/s/ Mark Cuccinello                                                  

Name:

Mark Cuccinello

Title:

Vice President

  as Agent and as a Lender

 

By:

 

/s/ D.B. Laughton                                                  

Name:

D.B. Laughton

Title:

Managing Director

 

 

By:

 

 

/s/ D.B. Laughton                                                  

Name:

D.B. Laughton

Title:

Managing Director