EXHIBIT 10.191
FIRST AMENDMENT TO
LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") dated
as of April 21, 1997 is among TRB HOLDING CORPORATION, a Delaware
corporation (the "Borrower"), READING & XXXXX (U.K.) LIMITED, a limited
liability company organized under the laws of the United Kingdom
("Reading & Xxxxx (U.K.)"; the Borrower and Reading & Xxxxx (U.K.),
individually, a "Company" and collectively, the "Companies"), and NISSHO
IWAI EUROPE PLC, an English corporation (the "Lender").
PRELIMINARY STATEMENT. The Companies and the Lender are
parties to a Loan Agreement dated as of December 14, 1996 (the "Loan
Agreement"; capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Loan Agreement)
and desire to amend the Loan Agreement as set forth in this Amendment.
SECTION 1. Amendment of the Loan Agreement.
(a) The following definitions contained in Section 1.01 of the
Loan Agreement are hereby amended in their entirety to read as follows:
"Assignment and Assumption Agreement" means collectively the
various Novation Agreements dated on or about the Drawdown Date among the
Borrower, the Partnership, TRB Subsidiary, Reading & Xxxxx (U.K.) and/or
RBDC.
"Commitment Termination Date" means April 28, 1997, unless the
Commitment is sooner terminated pursuant to Section 2.02 hereof.
"Drawdown Date" means the date of the drawdown of the
Commitment which shall occur no later than April 28, 1997.
"Interest Period" means the period commencing on the date the
Advance is (a) made or (b) continued, and ending on the fifteenth (15th)
calendar day in the next month thereafter, provided that the first
interest period shall end on May 15, 1997. If such fifteenth (15th) day
is not a Business day, the Interest Period shall be extended to the next
succeeding Business Day.
"Maturity Date" means, subject to Section 8.01, January 15,
2002.
"Operating Days" means, for any period, the actual number of
operating days of the Vessel in such period during which the Vessel is
earning a daily rate of renumeration in excess of zero under a Charter
Agreement.
"Vessel Sales Agreement" means the Agreement for the Sale and
Purchase of OPV "Seillean" dated as of May 31, 1996 between Britoil
(Beta) Limited and RB Drilling Co., as novated under the Novation
Agreement dated August 30, 1996 among Britoil (Beta), RB Drilling Co. and
RBDC, and as further amended or modified in accordance with this
Agreement.
(b) Section 3.03(a) of the Loan Agreement is hereby amended in
its entirety to read as follows:
(a) The Borrower shall repay the Loan on each Repayment Date
in an amount equal to the greater of (i) Excess Cash Flow received
during the month prior to the month of each Repayment Date (the
"Monthly Period"); provided that the first Monthly Period shall be
from the Closing Date until April 30, 1997, and (ii) the Minimum
Payment for such Repayment Date. Each repayment shall be applied
first to accrued and unpaid interest and then to principal.
(c) Section 5.01(e) of the Loan Agreement is hereby amended in
its entirety to read as follows:
Insurance. The Borrower and Reading & Xxxxx (U.K.) shall have
delivered to the Lender a certificate of an insurer reasonably
satisfactory to the Lender listing the coverages maintained by the
Borrower, which coverages shall be acceptable to the Lender and
stating that, except as otherwise provided in Schedule 6.11, the
Lender has been named loss payee with first priority to receive
payments in respect of any property insurance on the Vessel and,
except as otherwise provided in Schedule 6.11, each of the NIC
Parties as an additional insured thereunder.
(d) Section 7.14 of the Loan Agreement is hereby amended in
its entirety to read as follows:
Further Assurances. At any time or from time to time upon the
request of the Lender, each Company shall execute and deliver (or
cause to be executed and delivered) such further documents and do
such other acts and things as the Lender may reasonably request in
order to effect fully the transactions contemplated by of the
Transaction Documents. Without limiting the generality of the
foregoing, the Companies shall execute and deliver any documents,
including amendments to, or replacements of, the Assignment of
Charter, and take such other action (including, without limitation,
filing of the Ship Mortgage, the Assignment of Charter, and
appropriately completed and duly executed Uniform Commercial Code
financing statements and other documents in the State of Texas, the
Republic of Panama, the United Kingdom and other jurisdictions and
obtaining appropriate acknowledgments from any charterer under any
Charter Agreement) as may be necessary or as the Lender shall have
reasonably requested to perfect the Lender's first priority liens in
the Vessel and any earnings and other amounts payable under any
Charter Agreement or in connection therewith. The Companies agree
to take any action requested by the Lender to exercise any of their
respective rights or remedies, at law, by contract or otherwise, in
the event that any default or event of default by Britoil or any
other charterer shall occur under the Donan Charter Agreement, any
Charter Agreement or document executed in connection therewith
(collectively, the "Charter Documents"). The Companies shall
provide to the Lender copies of all Charter Documents promptly after
their receipt thereof. The Companies shall provide the Lender
notice of any default or event of default that occurs under any
Charter Document within three Business Days after any Company
obtains knowledge thereof. The Companies shall consult with the
Lender before taking any action to enforce any of its rights or
remedies in respect of any such default or event of default and
shall take or omit to take such actions only at the direction of the
Lender.
(e) A new Section 7.23 is hereby added to the Loan Agreement:
Section 7.23 Charter Agreement Payments. Immediately upon its
receipt of any payment under any Charter Agreement, each Company
shall deposit or cause to be deposited such payment in the Lockbox
in the same form received, with any necessary endorsement. Until
such payment has been so deposited, such Company shall segregate
such payment from its other funds and hold such payment in trust for
the Lender.
(f) Section 8.01(d) is hereby amended by deleting the
reference to "7.22" in such section and substituting "7.23" in lieu
thereof.
(g) Schedule 6.11 to the Loan Agreement is hereby deleted and
a new Schedule 6.11 is hereby added to the Loan Agreement in the form of
Schedule 6.11 attached hereto.
SECTION 2. Execution of Exhibits. Attached to the Loan
Agreement are certain exhibits. The parties hereto have agreed to
execute and deliver or accept certain agreements in the form of such
exhibits. The parties have executed and delivered or accepted the
execution and delivery of definitive documentation respecting Exhibits A
through F, I, K, M and O in a form other than as attached to the Loan
Agreement. The parties agree that any reference in the Loan Agreement or
the other Loan Documents to any of such agreement or certificate shall
mean and be a reference to the definitive document as executed or
accepted.
SECTION 3. Representations and Warranties True; No Default or
Event of Default. By its execution and delivery hereof each of the
Borrower and Reading & Xxxxx (U.K.) represents and warrants that, as of
the date hereof and after giving effect to this Amendment, (a) the
representations and warranties contained the Loan Document to which such
Person is a party are true and correct on and as of the date hereof as
though made on and as of such date (except to the extent that such
representations and warranties relate solely and expressly to an earlier
date), and (b) no event has occurred and is continuing which constitutes
a Default or an Event of Default.
SECTION 4. Effectiveness, Reference to the Loan Agreement.
This Amendment shall become effective when each of the Lender, the
Borrower and Reading & Xxxxx (U.K.) shall have executed and returned to
the other party a counterpart of this Amendment. Upon and after the
effectiveness of this Amendment, each reference in the Loan Agreement,
the Note or the Security Instruments to "the Loan Agreement," "this
Agreement," "hereunder," "herein" or words of like import shall mean and
be a reference to the Loan Agreement as amended hereby.
SECTION 5. Ratification of Loan Agreement. Except as
expressly affected by the provisions set forth herein, the Loan
Agreement, as amended hereby, shall remain in full force and effect and
is hereby ratified and confirmed by the Borrower and Reading & Xxxxx
(U.K.). The execution, delivery, and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as an amendment
or waiver of any right, power or remedy of the Lender under the Loan
Agreement, the Note, the Security Instruments, or any other Loan
Document, nor constitute a waiver of any other provision of the Loan
Agreement.
SECTION 6. Further Assurances. Each of the Borrower and
Reading & Xxxxx (U.K.) agrees to do, execute, acknowledge and deliver all
and every such further acts and instruments as the Lender may request for
the better assuring and confirming unto the Lender all and singular the
rights granted or intended to be granted hereby or hereunder.
SECTION 7. Costs and Expenses. Pursuant to Section 9.03 of
the Loan Agreement, each of the Borrower and Reading & Xxxxx (U.K.)
agrees to pay on demand all costs and expenses of the Lender in
connection with the preparation, reproduction, execution and delivery of
this Amendment (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Lender).
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND
SHALL BE BINDING UPON THE COMPANIES AND THE LENDER AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 9. Final Agreement. This Amendment may be executed in
one or more counterparts, each of which shall constitute an original but
when taken together shall constitute but one agreement. The written Loan
Agreement, as amended by this Amendment, and the other documents executed
in connection therewith, represent the final agreement between the
parties and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. This
Agreement and such writings supersede all prior proposals, negotiations,
agreements, and understandings relating to such subject matter.
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized have executed this Amendment as of the date first written
above.
TRB HOLDING CORPORATION,
as Borrower
By:________________________________
X.X. Xxxxx
Executive Vice President Finance
Administration
READING & XXXXX (U.K.) LIMITED
By:________________________________
X.X. Xxxxx
Authorized Agent
NISSHO IWAI EUROPE PLC, as Lender
By:________________________________
Xxxxxxxxx Xxxxxx
Attorney-in-Fact
