EXHIBIT 10.1.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 30, 2003
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") among Xxxxxxx Maritime Corporation, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
party to the Credit Agreement referred to below (collectively, the "Lenders"),
Citibank, N.A., as Issuing Bank and as Swing Line Bank, and Citicorp USA, Inc.,
as agent (together with any successor agent appointed pursuant to Article VIII
of the Credit Agreement referred to below, the "Administrative Agent") for the
Lender Parties and as collateral agent (together with any successor collateral
agent appointed pursuant to Article VIII of the Credit Agreement referred to
below, the "Collateral Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Administrative
Agent have entered into an Amended and Restated
Credit Agreement dated as of November 2, 2001 (as
amended, supplemented or otherwise modified
through the date hereof, the "Credit Agreement").
Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in
the Credit Agreement.
(2) The Borrower has requested that the Lenders agree
to amend the Credit Agreement in order to change
the Termination Date from October 31, 2004 to
January 1, 2005.
(3) The Lenders are, on the terms and conditions
stated below, willing to grant the request of the
Borrower and the Borrower and the Lenders have
agreed to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendment to the Credit Agreement. Section 1.01 of the
Credit Agreement is, on the Effective Date (as defined in Section 2 hereof),
hereby amended by deleting the date "October 31, 2004" in clause (ii) of the
definition of "Termination Date" and replacing it with the new date "January 1,
2005".
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective on the first date (the "Effective Date") on which, and only if, each
of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of
this Amendment executed by the Borrower and the Lenders or, as to any of
the Lenders, advice satisfactory to the Administrative Agent that such
Lender has executed this Amendment.
(b) The Administrative Agent shall have received the Consent
attached hereto executed by the Borrower and each of the other Loan
Parties.
(c) The representations and warranties contained in each of the Loan
Documents shall be correct in all material respects on and as of the
Effective Date, after giving effect to this Amendment, as though made on
and as of such date (except for any such representation and warranty that,
by its terms, refers to a specific date other than the Effective Date, in
which case as of such specific date).
(d) No event shall have occurred and be continuing or shall result
from the effectiveness of this Amendment that constitutes a Default.
The effectiveness of this Amendment is further conditioned upon the accuracy of
all of the factual matters described herein. This Amendment is subject to the
provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Reference to and Effect on the Loan Documents. (a) On and
after the Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents, as
specifically amended and otherwise modified by this Amendment, are and shall
continue to be in full force and effect and are hereby in all respects ratified
and confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended and otherwise modified by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 4. Costs, Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so
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executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed counterpart
of a signature page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
XXXXXXX MARITIME CORPORATION, as Borrower
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
CITICORP USA, INC., as Administrative Agent,
as Collateral Agent and as Lender
By /s/ Xxxxxx Xxxxxx
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Title: Director New York Shipping &
Logistics
Lender Parties
CITIBANK, N.A., as Issuing Bank, as Swing
Line Bank and as Lender
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Title: Director, New York Shipping &
Logistics
NORDEA BANK NORGE ASA (f/k/a Christiania
Bank OG Kreditkasse ASA), ACTING THROUGH ITS
NEW YORK BRANCH, as Lender
By /s/ Xxxxxx Xxxxxx
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Title: Senior Vice President
By /s/ Hans Chr. Kjelsrud
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Title: Senior Vice President
DEN NORSKE BANK ASA, as Lender
By /s/ X. Xxxxxxxxx
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Title: E.V.P.
By /s/ Xxxxxxx X. Xxxxxxxxx
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Title: First Vice President
HSH NORDBANK AG (f/k/a Landesbank Schleswig-
Holstein Girozentrale), as Lender
By /s/ Xxxxxx Xxxxxxxx
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Title: SVP
By /s/ Xxxxxxx Xxxxx
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Title: SVP
NEDSHIP BANK, N.V., as Lender
By /s/ Xxxxxx Xxxxxxxx
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Title: SVP
By /s/ Gorm Eikemo
------------------------------------------
Title: AVP
CONSENT
Dated as of September 30, 2003
Reference is made to (a) Amendment No. 1 to the Amended and Restated
Credit Agreement dated as of September 30, 2003 (the "Amendment"; capitalized
terms not otherwise defined herein being used herein as defined in the Amendment
and in the Credit Agreement referred to below), (b) the Amended and Restated
Credit Agreement dated as of November 2, 2001 (as amended by the Amendment and
as otherwise modified from time to time through the date hereof, the "Credit
Agreement") among Xxxxxxx Maritime Corporation, as Borrower, the Lender Parties
party thereto and Citicorp USA, Inc., as Administrative Agent for the Lender
Parties and as Collateral Agent, and (c) the other Loan Documents referred to
therein.
The undersigned as parties to one or more of the Loan Documents,
each hereby consents to the execution, delivery and the performance of the
Amendment and agrees that:
(A) each of the Loan Documents to which it is a party is, and shall
continue to be, in full force and effect and is hereby in all respects
ratified and confirmed on the Effective Date, except that, on and after
the Effective Date, each reference to "the Credit Agreement",
"thereunder", "thereof", "therein" or words of like import referring to
the Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended and otherwise modified by the Amendment; and
(B) as of the Effective Date, each Collateral Document to which it
is a party and all of the Collateral of such Person described therein do,
and shall continue to, secure the payment of all of the Secured
Obligations.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Delivery of an executed counterpart of a signature page of this
Consent by telecopier shall be effective as the delivery of a manually executed
counterpart of this Consent.
MARINE TRANSPORT CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
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Title: Director, Treasurer
XXXXXXX PETROLEUM TRANSPORT, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Title: Treasurer
CROWLEY ALASKA, INC.
XXXXXXX LINER SERVICES, INC.
CROWLEY LAUNCH AND TUGBOAT COMPANY
XXXXXXX MARINE SERVICES, INC.
VESSEL MANAGEMENT SERVICES, INC.
XXXXXXX LOGISTICS, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and Treasurer
XXXXXX OWNER CORPORATION
MARINE NAVIGATION COMPANY, INC.
MARINE TRANSPORT MANAGEMENT, INC.
MORMAC MARINE TRANSPORT II, INC.
MARINE CHEMICAL CARRIERS COMPANY LLC
OSWEGO SHIPPING CORPORATION
BLUE COAST BAREBOAT COMPANY LLC
XXXXXXX OWNER CORPORATION
MARINE CHEMICAL NAVIGATION COMPANY LLC
MARINE CHEMICAL STEAMSHIP COMPANY, INC.
OMI CHALLENGER TRANSPORT, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President, Assistant Treasurer
INTREPID BAREBOAT CORPORATION
MARINE TRANSPORT LINES, INC.
By /s/ Xxxx Deisiderio
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Title: Director, Treasurer
MORMAC MARINE ENTERPRISES, INC.
By /s/ Xxxx X. Xxxxxx
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Title: Director
OSWEGO CORPORATION
By /s/ Xxxx X. Xxxxxx
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Title: Director, Treasurer
