FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
(this "Amendment") is entered into as of November 17, 1995, by
and among AVONDALE INDUSTRIES, INC., a Louisiana corporation (the
"Company"), the various financial institutions signatory hereto
(collectively, the "Banks," and, individually, a "Bank"), and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as LC
Issuer and as successor agent to BANK OF AMERICA ILLINOIS
(successor-in-interest to CONTINENTAL BANK), as agent for the
Banks (the "Agent"). Words and phrases having defined meanings
in the Credit Agreement referred to below shall have the same
respective meanings when used herein, unless otherwise expressly
defined herein.
WITNESSETH:
WHEREAS, the parties hereto have entered into a
Revolving Credit Agreement, dated as of May 10, 1994 as amended
by that certain First Amendment and Waiver to Revolving Credit
Agreement dated as of May 31, 1994, that certain Second Amendment
to Revolving Credit Agreement dated as of February 9, 1995, that
certain Third Amendment, Waiver and Consent to Revolving Credit
Agreement dated as of May 10, 1995 and that certain Fourth
Amendment and Consent to Revolving Credit Agreement dated as of
September 1, 1995 (collectively, the "Existing Agreement" and as
amended by this Amendment, the "Credit Agreement"), relating to a
revolving credit facility in an amount not to exceed $42,500,000
for the Company's ongoing working capital and general corporate
needs; and
WHEREAS, the Company has requested that the Banks agree
to certain amendments and modifications to the terms of the
Existing Agreement;
NOW THEREFORE, in consideration of the premises and the
mutual agreements set forth herein and for other consideration
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows;
1. Amendments to the Existing Agreement. Subject to
and conditioned upon the fulfillment of each of the conditions
precedent set forth in Section 2 hereof, the Existing Agreement
is hereby amended as follows:
(a) Section 1.1 of the Existing Agreement is hereby
amended to delete the definition of Applicable Margin set forth
therein and to insert the following therefor:
"Applicable Margin" shall mean in respect of any
Eurodollar Rate Loan, one and one-half percent (1.5%).
(b) Section 1.1 of the Existing Agreement is hereby
further amended to delete clause (iii) of the definition of Cash
Equivalent Investments and to insert the following therefor
(iii) repurchase agreements or reverse repurchase
agreements with terms of not more than thirty (30) days
from the date acquired, for securities of the type
described in clause (i) above and entered into only
with commercial banks having the qualifications
described in clause (ii) above;
(c) Section 1.1 of the Existing Agreement is hereby
amended to delete clause (i) of the definition of Eligible Billed
Commercial Receivables thereof in its entirety and to insert the
following therefor:
(i) with respect to such Account, no Account Debtor is
(i) incorporated in or primarily conducting
business in any jurisdiction located outside the United
States unless (A) such sale is either on an irrevocable
letter of credit acceptable to the Agent or acceptance
terms acceptable to the Agent or (B) such Account and
the related Account Debtor is otherwise approved by the
Agent in writing; provided that, the provisions of this
clause (i) shall not apply (1) to the extent that such
Account Debtor is British Petroleum or any of its
Subsidiaries to the extent such Account is guaranteed
by British Petroleum, or Holland America or any of its
Subsidiaries to the extent such Account is guaranteed
by Holland America or (2) to Primorsk Shipping
Corporation (or an Affiliate thereof) with respect to
the Primorsk Tanker Accounts to the extent, and only to
the extent, that amounts are either on deposit with
MARAD or guaranteed by MARAD and available for
disbursement to pay such Accounts and no event has
occurred or condition exists which allows MARAD not to
disburse, or not to authorize disbursement of, such
amounts in payment of such Accounts, or which allows a
third party lender not to disburse such amounts in
payment of such Accounts
(ii) an Affiliate of the Company or any of its
Subsidiaries,
(iii) a foreign government or any agency,
department or instrumentality thereof unless such sale
is on an irrevocable letter of credit acceptable to the
Agent or acceptance terms acceptable to the Agent;
provided that, the provisions of this clause (iii)
shall not apply to Primorsk Shipping Corporation (or an
Affiliate thereof) with respect to the Primorsk Tanker
Accounts to the extent, and only to the extent, that
amounts are either on deposit with MARAD or guaranteed
by MARAD and available for disbursement to pay such
Accounts and no event has occurred or condition exists
which allows MARAD not to disburse, or authorize the
disbursement of, such amounts in payment of such
Accounts, or which allows a third party lender not to
disburse such amounts in payment of such Accounts,
(iv) the subject of any reorganization,
bankruptcy, debt arrangement, receivership,
custodianship, insolvency or other case or proceeding
under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding (and
such Account Debtor has not become insolvent or
generally failed to pay, or admitted in writing its
inability or unwillingness to pay, debts as they become
due), or
(v) an agency, department or instrumentality of
the United States or any state or local governmental
authority in the United States;
(d) Section 1.1 of the Existing Agreement is hereby
further amended to delete the definition of Letter of Credit
Commission set forth therein and to insert the following
therefor:
"Letter of Credit Commission" shall mean seven-
eighths percent (0.875%) per annum.
(e) Section 1.1 of the Existing Agreement is hereby
amended to add the following definition thereto in appropriate
alphabetical order:
"Primorsk Tanker Accounts" means the Accounts
owing to the Company by Primorsk Shipping Corporation (or an
Affiliate thereof) in connection with Company's construction
of up to seven 42,000 ton tankers for an aggregate purchase
price equal to approximately $320 million pursuant to the
terms of that certain contract dated August 7, 1995 between
the Company and Primorsk Shipping Corporation, the
construction of which is to be financed by MARAD.
(f) Section 2.6 of the Existing Agreement is hereby
amended by deleting the first sentence thereof in its entirety
and inserting the following therefor:
The Company may, from time to time, on any Business Day,
prepay the Base Rate Loans, in whole or in part, without
premium or penalty, upon irrevocable written notice to the
Agent by the Company no later than 10:00 a.m. Chicago time
on the date of such prepayment which notice shall specify
the date and amount of the prepayment.
(g) Section 6.2(e) of the Existing Agreement is hereby
amended by deleting the phrase "within 90 days" set forth therein
and inserting the phrase "within 95 days" therefor.
(h) Section 6.9 of the Existing Agreement is hereby
amended to delete the terms thereof in their entirety and to
insert the following therefor:
6.9 [Intentionally Omitted.]
2. Conditions Precedent to Effectiveness of
Amendments and Consent. The amendments and modifications set
forth in Section 1 hereof shall become effective upon, and are
expressly conditioned upon, the fulfillment of each of the
following conditions precedent on or prior to December 1, 1995:
(a) Amendment. The Agent shall have received this
Amendment, duly executed and delivered by an authorized officer
of the Company and each of the Banks.
(b) Subsidiary Guarantor Consent. The Agent shall
have received (with a copy for each of the Banks) from each of
the Subsidiary Guarantors a reaffirmation of the Subsidiary
Guarantee executed by it in the form attached hereto.
(c) Material Adverse Change. In the opinion of the
Banks (as evidenced by their execution of this Amendment), no
event or condition shall have occurred or exist which could
reasonably be expected to have a Material Adverse Effect.
(d) Legal Opinion. The Agent shall have received the
favorable opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, Louisiana counsel to the Company, addressed to the
Agent, the LC Issuer and the Banks in form and substance
satisfactory to the Agent and its counsel.
(e) Other Documents. The Agent shall have received
such other documents, instruments and agreements as it shall have
reasonably requested in connection with the transactions
contemplated by this Amendment.
3. Additional Condition to Eligibility of the Primorsk
Tanker Accounts. The Company, the Agent and the Banks agree that
the Primorsk Tanker Accounts shall not constitute Eligible Billed
Commercial Receivables unless and until the documentation
relating to the financing of such Accounts is reviewed and
consented to by Bank of America Illinois (in its capacity as a
Bank), which consent is hereby authorized by each of, and may be
given without further direction from any of, the other Banks.
4. Representations, Warranties and Covenants. In
order to induce the Agent and the Banks to enter into this
Amendment, the Company hereby represents, warrants and covenants
to the Agent and the Banks as follows:
(a) The execution, delivery and performance by
the Company of this Amendment (i) are within the Company's
corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in
respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default
under, any provision of any applicable law, statute,
ordinance, regulation, rule, order or other governmental
restriction or of the Certificate or Articles of
Incorporation or By-Laws of the Company, (v) do not
contravene, or constitute a default under, any agreement,
judgment, injunction, order, decree, indenture, contract,
lease, instrument or other commitment to which the Company
is a party or by which the Company or any of its assets are
bound and (vi) will not result in the creation or imposition
of any Lien upon any asset of the Company under any existing
indenture, mortgage, deed of trust, loan or credit agreement
or other agreement or instrument to which the Company is a
party or by which it or any of its assets may be bound or
affected.
(b) This Amendment and the Credit Agreement are
the legal, valid and binding obligations of the Company, and
are enforceable against the Company in accordance with their
terms.
(c) The representations and warranties contained
in the Credit Agreement and the other Loan Documents are
true and correct in all material respects on and as of the
date hereof as though made on the date hereof, except to the
extent that such representations expressly relate solely to
an earlier date (in which case such representations and
warranties were true and accurate on and as of such earlier
date).
(d) No Default or Event of Default has occurred
and is continuing.
5. Reference to and Effect Upon the Credit Agreement.
Upon the effectiveness of this Amendment, each reference in the
Existing Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall mean and be a reference
to the Credit Agreement, as amended hereby and each reference to
the Existing Agreement in any other Loan Document shall mean and
be a reference to the Credit Agreement, as amended hereby.
6. Reaffirmation; Expenses. The Company hereby
reaffirms to the Agent and each of the Banks that, except as
modified hereby, the Credit Agreement and all of the Loan
Documents remain in full force and effect and have not been
otherwise waived, modified or amended. Except as expressly
modified hereby, all of the terms and conditions of the Credit
Agreement shall remain unaltered and in full force and effect.
The Company acknowledges that all reasonable legal fees and
expenses of the Agent related to this Amendment shall be paid by
the Company.
7. Confirmation of Collateral Documents. The Company
hereby (i) ratifies and confirms its obligations under the
Collateral Documents and acknowledges and agrees that the
Collateral Documents to which the Company is a party are the
legal, valid and binding obligations of the Company, enforceable
against it in accordance with their terms; and (ii) agrees that
the Obligations (for purposes of each of such Collateral
Documents) shall include, without limitation, the Obligations
under and as defined in the Credit Agreement as amended by this
Amendment.
8. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS
AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY,
THE SUBSIDIARIES, THE AGENT AND THE BANKS IN CONNECTION WITH THIS
AMENDMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS
AND DECISIONS OF THE STATE OF ILLINOIS.
9. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. One or more counterparts of this Amendment may
be delivered by telecopier, and if so delivered shall be deemed
to be delivered with the intention that they shall have the same
effect as an original counterpart hereof. Any party delivering
any such counterpart by telecopy shall promptly forward to the
Agent an original counterpart hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Agreement as of the date first above written.
AVONDALE INDUSTRIES, INC.
By: /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE BANKS:
BANK OF AMERICA ILLINOIS, successor-
in-interest to CONTINENTAL BANK, as
a Bank and as LC Issuer
By: /s/ W. XXXXXX XXXXXXX
---------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as LC Issuer
By: /s/ W. XXXXXX XXXXXXX
---------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
WHITNEY NATIONAL BANK
By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President
FIRST INTERSTATE BANK OF TEXAS,N.A.
By: /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
FIRST NATIONAL BANK OF COMMERCE
By: /s/ XXXXX X. XXXXXXX
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE GULFPORT MARINE, INC.
By /s/ XXXXXX X. KITCHEN
----------------------
Title: Vice President
Dated: November 17, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE TECHNICAL SERVICES, INC.
By /s/ XXXXXX X. KITCHEN
---------------------
Title: President
Dated: November 17, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
XXXXXXXX TECHNICAL SERVICES, INC.
By /s/ X. X. XXXXX
---------------
X. X. Xxxxx
Title: Secretary
Dated: November 17, 1995
CONSENT
By Subsidiary Guarantee dated as of May 10, 1994 (the
"Guarantee"), the undersigned (the "Guarantor") guaranteed to the
Secured Parties (as defined therein), subject to the terms,
conditions and limitations set forth therein, the prompt payment
and performance of all of the Obligations (as defined therein).
The Guarantor consents to the Company's execution of the
foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
GENCO INDUSTRIES, INC.
By /s/ X. X. XXXXX
---------------
X. X. Xxxxx
Title: Secretary
Dated: November 17, 1995
CONSENT
By Subsidiary Guarantee dated as of February 9, 1995
(the "Guarantee"), the undersigned (the "Guarantor") guaranteed
to the Secured Parties (as defined therein), subject to the
terms, conditions and limitations set forth therein, the prompt
payment and performance of all of the Obligations (as defined
therein). The Guarantor consents to the Company's execution of
the foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE PROPERTIES, INC.
By /s/ XXXXXX X. KITCHEN
----------------------
Title: Vice President
Dated: November 17, 1995
By Subsidiary Guarantee dated as of February 9, 1995
(the "Guarantee"), the undersigned (the "Guarantor") guaranteed
to the Secured Parties (as defined therein), subject to the
terms, conditions and limitations set forth therein, the prompt
payment and performance of all of the Obligations (as defined
therein). The Guarantor consents to the Company's execution of
the foregoing Fifth Amendment to Revolving Credit Agreement and
acknowledges the continued validity, enforceability and
effectiveness of the Guarantee with respect to all loans,
advances and extensions of credit to the Company, whether
heretofore or hereafter made, together with all interest thereon
and all expenses in connection therewith.
AVONDALE LAND MANAGEMENT COMPANY,
a Louisiana general partnership
By Avondale Industries, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President & CFO
By Avondale Properties, Inc.,
a general partner
By /s/ XXXXXX X. KITCHEN
---------------------
Name: Xxxxxx X. Kitchen
Title: Vice President & CFO
Dated: November 17, 1995